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.”