Seventh Circuit – Page 12 – Marquette University Law School Faculty Blog

Seventh Circuit Rejects Retroactivity for Padilla

Post author:Michael M. O'Hear
Post published:August 28, 2011
Post category:Circuit Splits Criminal Law & Process Federal Criminal Law & Process Public Seventh Circuit

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:

Gender Discrimination in Jury Selection as Ineffective Assistance of Counsel

Post author:Michael M. O'Hear
Post published:August 23, 2011
Post category:Criminal Law & Process Public Race & Law Seventh Circuit

A defendant’s right to reasonably competent legal representation is violated when the defendant’s lawyer discriminates on the basis of gender during jury selection, the Seventh Circuit ruled last week inWinston v. Boatwright (No. 10-1156). The court’s reasoning would presumably apply equally to racial discrimination. However, because of the peculiarities of federal habeas law, the particular defendant who presented the claim in Winston was unable to obtain any relief.

Here’s what happened. Winston was charged with sexual assault of a fifteen-year-old girl and convicted by an all-woman jury. His lawyer had used his seven peremptory strikes to remove six men and one woman from the jury. As Winston’s post-conviction counsel later discovered, the trial lawyer struck the male jurors because he thought that females would be more critical of the victim.

Apart from the fact that such gender discrimination is illegal, trial counsel’s strategy may actually have been a good one. Indeed, the jury acquitted Winston of an intercourse charge.

No matter, the Seventh Circuit ruled. Competent counsel (in the constitutional sense) does not discriminate against men in the exercise of peremptory strikes. Period.

Judge Must Explain New Sentencing Decision After Revocation of Supervised Release

Post author:Michael M. O'Hear
Post published:August 20, 2011
Post category:Federal Criminal Law & Process Federal Sentencing Public Seventh Circuit

As I described here and here, the Seventh Circuit has an interesting line of cases that attempt to establish some minimal standards for the way that district judges explain their sentences. Add to that line the court’s decision last week in United States v. Robertson (No. 10-3543). I think that Robertson is the court’s first decision to apply the explanation requirement to a resentencing that occurred after revocation of a defendant’s supervised release.

That the explanation requirement would apply here is perhaps not a given, since, as the court observed, the district judge has even more discretion in this setting than in an original sentencing. (4) The court ruled, however, that the district judge must indeed “say something that enables the appellate court to infer that he considered both [the recommendations of the sentencing guidelines and the statutory sentencing factors].” (4)

In Robertson, the guidelines recommended a term of 12-18 months following the defendant’s revocation for growing marijuana, but the district judge instead imposed a sentence of 34 months. Here is the “explanation” for the sentence that the Seventh Circuit found inadequate: