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7th Circuit holds lawyer rule on impact of guilty plea for immigrants not retroactive

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A three-judge panel for the 7th Circuit Court of Appeals has determined a landmark decision from the Supreme Court of the United States last year isn't retroactive. That rule required criminal defense attorneys to advise clients about the immigration impact of signing a guilty plea, and this means past cases wouldn’t benefit from that holding even if those individuals had been deprived of that Sixth Amendment right.

The ruling came Tuesday in Roselva Chaidez v. U.S., No. 10-3623, a Northern District of Illinois case involving a woman from Mexico who entered the United States and became a lawful resident in the 1970s. She was indicted in 2003 on mail fraud in connection with a staged accident insurance scheme that took more than $10,000 from the victims. On the advice of her counsel, Chaidez pleaded guilty to two counts and received a sentence of four years probation.

The federal government began deportation proceedings in 2009 because the law dictates that for anyone convicted of an aggravated felony. In an attempt to halt the deportation, Chaidez tried to have her conviction overturned despite not originally appealing the conviction and sentence. Filing a motion for the court to correct a previous error that couldn’t be fixed by any other remedy, Chaidez in January 2010 alleged ineffective assistance of counsel in connection with her decision to plead guilty, and she claimed that her defense attorney failed to inform her that a guilty plea could lead to her deportation.

While the motion was pending before the Northern District of Illinois, the Supreme Court on March 31, 2010, decided Padilla v. Kentucky, 130 S. Ct. 1473, 1486 (2010). The holding in that case upheld the argument Chaidez was trying to make.

Considering that new holding, U.S. Judge Joan Gottschall in Illinois ruled later in the year that this was a close call but that Padilla didn't announce a new rule and should apply retroactively to Chaidez's case. The District judge applied that ruling to this case and granted the petition, vacating Chaidez's conviction.

The federal government appealed that ruling regarding the retroactive effect of Padilla, an issue that multiple District and Circuit courts have addressed recently and ruled on differently. Now, the 7th Circuit has chimed in, with the full Circuit rejecting a request to rehear the case en banc despite objections from Judges David Hamilton, Ilana Diamond Rovner, Diane Wood, and Ann C. Williams, who would have reheard the case. Judges William Bauer and Joel Flaum were in the majority reversing the lower District court, while Judge Williams disagreed and penned a lengthy dissent.

Despite the court's division, the holding is now in place for Illinois, Indiana, and Wisconsin: Padilla is not retroactive prior to March 31, 2010.

Specifically under SCOTUS precedent from 1989, a constitutional rule of criminal procedure applies to all cases on direct and collateral review if it’s not a new rule but rather is an old rule applied to new facts. That is what the federal courts are debating about Padilla, and whether that holding is a new rule that should apply to future cases.

Examining pre-Padilla caselaw from nine federal appellate courts, the two-judge majority for the 7th Circuit panel found that those other jurisdictions had uniformly held that the Sixth Amendment did not require counsel to provide advice about collateral consequences of guilty pleas.

The 7th Circuit panel described Judge Gottschall’s rationale as reasonable and compelling – that the SCOTUS majority intended Padilla to apply retroactively because of concerns that its ruling would undermine the finality of plea-based convictions. But the majority hesitated to turn away from its long-established application of the test it had used prior to the SCOTUS decision and found that it was a new groundbreaking rule that couldn’t have been anticipated and should not be retroactive.

“While determining whether a rule is new can be challenging, and this case provides no exception, we conclude that the narrow definition of what constitutes an old rule tips the scales in favor of finding that Padilla announced a new rule,” Judge Flaum wrote. “Moreover, that numerous courts had failed to anticipate the holding in Padilla, though not dispositive, is strong evidence that reasonable jurists could have debated the outcome.”

In her 12-page dissent, Judge Williams wrote that Padilla’s plain language indicates it anticipated retroactivity because it used past tense and discussed application to convictions already obtained, not only prospective challenges.

“We can rest assured that defense lawyers will now advise their clients prior to pleading guilty about the immigration consequences of such a plea, as the Court has clarified that such advice is required under the Sixth Amendment. But given today’s holding, this is of no consequence to Roselva Chaidez despite the fact that professional norms in place at the time of her plea placed the same duty on her counsel,” Judge Williams wrote. “Because I find that Padilla simply extended the Supreme Court’s holding (from 1984) and itself signaled an intent to be applied to noncitizens in Chaidez’s position, I respectfully dissent.”
 

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  1. Have been seeing this wonderful physician for a few years and was one of his patients who told him about what we were being told at CVS. Multiple ones. This was a witch hunt and they shold be ashamed of how patients were treated. Most of all, CVS should be ashamed for what they put this physician through. So thankful he fought back. His office is no "pill mill'. He does drug testing multiple times a year and sees patients a minimum of four times a year.

  2. Brian W, I fear I have not been sufficiently entertaining to bring you back. Here is a real laugh track that just might do it. When one is grabbed by the scruff of his worldview and made to choose between his Confession and his profession ... it is a not a hard choice, given the Confession affects eternity. But then comes the hardship in this world. Imagine how often I hear taunts like yours ... "what, you could not even pass character and fitness after they let you sit and pass their bar exam ... dude, there must really be something wrong with you!" Even one of the Bishop's foremost courtiers said that, when explaining why the RCC refused to stand with me. You want entertaining? How about watching your personal economy crash while you have a wife and five kids to clothe and feed. And you can't because you cannot work, because those demanding you cast off your Confession to be allowed into "their" profession have all the control. And you know that they are wrong, dead wrong, and that even the professional code itself allows your Faithful stand, to wit: "A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. The provisions of Rule 1.2(d) concerning a good faith challenge to the validity, scope, meaning or application of the law apply to challenges of legal regulation of the practice of law." YET YOU ARE A NONPERSON before the BLE, and will not be heard on your rights or their duties to the law -- you are under tyranny, not law. And so they win in this world, you lose, and you lose even your belief in the rule of law, and demoralization joins poverty, and very troubling thoughts impeaching self worth rush in to fill the void where your career once lived. Thoughts you did not think possible. You find yourself a failure ... in your profession, in your support of your family, in the mirror. And there is little to keep hope alive, because tyranny rules so firmly and none, not the church, not the NGO's, none truly give a damn. Not even a new court, who pay such lip service to justice and ancient role models. You want entertainment? Well if you are on the side of the courtiers running the system that has crushed me, as I suspect you are, then Orwell must be a real riot: "There will be no curiosity, no enjoyment of the process of life. All competing pleasures will be destroyed. But always — do not forget this, Winston — always there will be the intoxication of power, constantly increasing and constantly growing subtler. Always, at every moment, there will be the thrill of victory, the sensation of trampling on an enemy who is helpless. If you want a picture of the future, imagine a boot stamping on a human face — forever." I never thought they would win, I always thought that at the end of the day the rule of law would prevail. Yes, the rule of man's law. Instead power prevailed, so many rules broken by the system to break me. It took years, but, finally, the end that Dr Bowman predicted is upon me, the end that she advised the BLE to take to break me. Ironically, that is the one thing in her far left of center report that the BLE (after stamping, in red ink, on Jan 22) is uninterested in, as that the BLE and ADA office that used the federal statute as a sword now refuses to even dialogue on her dire prediction as to my fate. "C'est la vie" Entertaining enough for you, status quo defender?

  3. Low energy. Next!

  4. Had William Pryor made such provocative statements as a candidate for the Indiana bar he could have been blackballed as I have documented elsewhere on this ezine. That would have solved this huuuge problem for the Left and abortion industry the good old boy (and even girl) Indiana way. Note that Diane Sykes could have made a huuge difference, but she chose to look away like most all jurists who should certainly recognize a blatantly unconstitutional system when filed on their docket. See footnotes 1 & 2 here: http://caselaw.findlaw.com/us-7th-circuit/1592921.html Sykes and Kanne could have applied a well established exception to Rooker Feldman, but instead seemingly decided that was not available to conservative whistleblowers, it would seem. Just a loss and two nice footnotes to numb the pain. A few short years later Sykes ruled the very opposite on the RF question, just as she had ruled the very opposite on RF a few short years before. Indy and the abortion industry wanted me on the ground ... they got it. Thank God Alabama is not so corrupted! MAGA!!!

  5. OK, take notice. Those wondering just how corrupt the Indiana system is can see the picture in this post. Attorney Donald James did not criticize any judges, he merely, it would seem, caused some clients to file against him and then ignored his own defense. James thus disrespected the system via ignoring all and was also ordered to reimburse the commission $525.88 for the costs of prosecuting the first case against him. Yes, nearly $526 for all the costs, the state having proved it all. Ouch, right? Now consider whistleblower and constitutionalist and citizen journalist Paul Ogden who criticized a judge, defended himself in such a professional fashion as to have half the case against him thrown out by the ISC and was then handed a career ending $10,000 bill as "half the costs" of the state crucifying him. http://www.theindianalawyer.com/ogden-quitting-law-citing-high-disciplinary-fine/PARAMS/article/35323 THE TAKEAWAY MESSAGE for any who have ears to hear ... resist Star Chamber and pay with your career ... welcome to the Indiana system of (cough) justice.

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