In Padilla v. Kentucky, 130 S. Ct. 1473 (2010), the Supreme Court held that a lawyer provides ineffective assistance of counsel by failing to inform a client of the deportation risks that result from a guilty plea. However, the Court did not clearly indicate whether its holding must be applied retroactively to cases on collateral review, leaving the lower courts to sort out the mess. A handful of district courts have already split on this issue. Now, with the Seventh Circuit’s ruling last week in Chaidez v. United States (No. 10-3623), the circuits are also split. A divided panel in Chaidez rejected both retroactivity and the Third Circuit’s reasoning to the contrary in United States v. Orocio, 645 F.3d 630 (3d Cir. 2011).
As the Chaidez majority observed, the key legal issue is whether Padilla announced a new rule, or merely provided an application of the established principles of ineffective assistance from Strickland v. Washington, 466 U.S. 668 (1984). Under Teague v. Lane, 489 U.S. 288 (1989), a new rule may not be applied retroactively unless it falls into one of two exceptions that plainly do not encompass the Padilla holding.
Teague and least some of its progeny suggest what seems effectively a strong presumption in favor of a “new rule” finding (and hence against retroactivity). Here is how the Chaidez majority characterized the law: