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:
A rule is said to be new when it was not “dictated by precedent existing at the time the defendant’s conviction became final.” Teague, 489 U.S. at 301 (emphasis in original). . . . Thus, the Court has explained that Teague“validates reasonable, good-faith interpretations of existing precedents made by state courts even though they are shown to be contrary to later decisions.” Saffle v. Parks, 494 U.S. 484, 488 (1990) (quoting Butler v. McKellar, 494 U.S. 407, 414 (1990)). The pertinent inquiry here is whether Padilla’s outcome was “susceptible to debate among reasonable minds.” Butler, 494 U.S. at 415. Put differently, “our task is to determine whether a . . . court considering [Chaidez’s] claim at the time [her] conviction became final”—pre-Padilla—“would have felt compelled by existing precedent to conclude that [Padilla] was required by the Constitution.” Saffle, 494 U.S. at 488. (7-8)
With the question framed this way, it is hard to disagree with the majority’s bottom-line conclusion. The fact that the lower courts had been overwhelming lined up against the Padilla rule seems almost dispositive of the question — under those circumstances, how can one conclude that this was not an issue over which reasonable jurists might have differed?
Writing in dissent, though, Judge Williams argued that the majority’s “reasonable jurists” test did not accurately reflect the governing law:
[T]his narrow conception of the “dictated” language fromTeague is not the relevant inquiry in the Strickland context. “The often repeated language that Teague endorses ‘reasonable, good-faith interpretations’ by state courts is an explanation of policy, not a statement of law.” Williams v. Taylor, 529 U.S. 362, 383 (2000) (plurality) (quoting Butler, 494 U.S. at 414). As the Court has stated, and as the majority today recognizes, “the Strickland test provides sufficient guidance for resolving virtually all ineffective-assistance-of-counsel claims,” id. at 391 (opinion of the Court) (emphasis added). “[W]here the starting point is a rule of general application such as Strickland, “it will be the infrequent case that yields a result so novel that it forges a new rule, one not dictated by precedent,” Wright v. West, 505 U.S. 277, 308-09 (1992) (Kennedy, J., concurring). (23)
Judge Williams did not see Padilla as one of those “infrequent cases” referred to by Justice Kennedy, but rather as a straightforward application of Strickland:
The analytical mechanism by which the Court applied Strickland does not detract from the fact that Strickland is the general test governing ineffective assistance claims, and that the Padilla Court did no more than recognize that removal is the type of consequence that a defendant needs to be informed of when making the decision of whether to plea. (24)
The clash between majority and dissent in Chaidez highlights what is so analytically unsatisfactory about the ”new rule” test of Teague. Because every case presents a fact pattern that is in some respects unique, every holding can in some sense be thought of as articulating a new rule. But because every case also purports to rely on established legal principles, every case can also be thought of as mere application. Rather than an either-or question, the “newness” question is really one of degree, and it is not clear how and where to draw a line on the spectrum for purposes of retroactivity.
Given the emerging split in the lower courts, Chaidez might be a good case for Supreme Court review. And, if the Court does take the case, I hope the Court will use it as an occasion to revisit the wisdom of Teague itself. I appreciate that Teague was intended to preserve the finality of state judgments by making it harder for state defendants to take advantage of favorable new Supreme Court decisions in federal habeas proceedings. But, since Teague, Congress has erected a host of new barriers to habeas relief that accomplish the same end, e.g., the one-year statute of limitations for habeas petitions, restrictions on second and successive habeas petitions, and the “clearly established law” requirement of 28 U.S.C. § 2254(d)(1). Add to that the forfeiture and procedural bar doctrines, which predated Teague, and there is a formidable obstacle course for habeas petitioners to traverse before they are able to take advantage of new Supreme Court decisions. Teague is an unnecessary overlay that complicates habeas litigation to no good effect.
To make this a little more concrete, Chaidez received the fateful counsel from her lawyer in 2003. There was nothing that happened between 2003 and 2010, when Padilla was decided, that transformed what might have been good advice into bad advice — her legal representation fell below professional norms in 2003 as much as it would have in 2010. The question we should be asking is not the unanswerable question of whether Padilla announced a new rule, but the question of whether Chaidez was so prejudiced by the bad counsel she received that she should be given an opportunity to withdraw her guilty plea.
Cross posted at Life Sentences Blog.