CT Supreme Court: Padilla isn’t retroactive

In a much anticipated case, the Connecticut Supreme Court held this week that Padilla v. Kentucky, 559 U.S. 356 (2010), does not apply retroactively to state convictions. Thiersaint v. Commissioner of Correction, No. SC 19134, slip op. (Conn. April 14, 2015). In Padilla, the U.S. Supreme Court held that the Sixth Amendment right to effective assistance of counsel requires criminal defense attorneys to advise noncitizen clients about the immigration consequences of conviction. This week’s Connecticut decision makes it less likely that migrants who were denied such advice prior to March 31, 2010, the date on which Padilla was issued, will find a remedy for any immigration consequence they face due to their conviction.

This case reads like so many familiar to crImmigration.com readers. Mr. Thiersaint came to the United States as a teenager in 1994 as a lawful permanent resident. After being involved in a car crash that resulted in the amputation of his right leg, Thiersaint developed a drug addiction. That addiction in turn led to a number of convictions for low-level drug offenses. He is in a long-term relationship and has a daughter who is presumably a United States citizen. Id. at 3-4. None of that, however, is relevant because in 2007 he was convicted of possession with intent to sell, Conn. Gen. Stat. § 21a-277(a), an offense that the parties and court seem to agree constitutes an aggravated felony.

It’s not entirely clear what advice Thiersaint received from his plea counsel about the possibility of adverse immigration consequences. That, too, however, is largely irrelevant because the court concluded that in 2007 his attorney was under no constitutional obligation to provide any advice about the likelihood that a conviction for possession with intent to sell would lead to significant immigration difficulties.

To reach that conclusion, the court explained that Padilla applies prospectively only; it does not apply retroactively. In this, the court took much guidance from the U.S. Supreme Court’s decision in Chaidez v. United States, 133 S. Ct. 1103 (2013), reaching the same conclusion. As I write in my forthcoming book Crimmigration Law (ABA 2015),

The Court came to this conclusion because Padilla, the [Chaidez] majority decided, announced a new constitutional rule of criminal procedure. Under the Court’s existing retroactivity analysis framework, governed by Teague v. Lane, “a case announces a new rule if the result was not dictated by precedent existing at the time the defendant’s conviction became final. And a holding is not so dictated . . . unless it would have been ‘apparent to all reasonable jurists.’”[1] A case does not announce a new rule, however, when it merely applies an established principle to a new set of facts.[2] While a new rule applies only to cases that were not yet initiated or were on direct review on the date the new rule was announced, an old rule applies to all cases including those that have long been final.[3] Chaidez, whose conviction became final in 2004, could therefore only benefit from Padilla if the Court concluded that Padilla simply extended an existing principle—i.e., Strickland’s ineffective assistance of counsel analysis—to a new set of facts—i.e., immigration law consequences of conviction. Unfortunately for her, the Court decided that Padilla announced a new rule. Had the Padilla opinion done no more than recognize that the right to effective assistance of counsel requires advice about immigration consequences of conviction, Justice Elena Kagan’s majority opinion in Chaidez implied, it might have stayed within Strickland’s well-worn confines. “But Padilla did something more,” the Court explained.

[P]rior to asking how the Strickland test applied (“Did this attorney act unreasonably?”), Padilla asked whether the Strickland test applied (“Should we even evaluate if this attorney acted unreasonably?”). And . . . that preliminary question about Strickland’s ambit came to the Padilla Court unsettled—so that the Court’s answer (“Yes, Strickland governs here”) required a new rule.[4]

Padilla is thus largely irrelevant to migrants convicted of federal crimes whose convictions became final prior to March 31, 2010.

Thiersaint argued that the Chaidez reasoning should not constrain the Connecticut Supreme Court for a number of reasons, most importantly that state courts are permitted to adopt a broader retroactivity framework than what Teague sets forth for purposes of federal habeas review. With this much at least, the Connecticut Supreme Court agreed. Thiersaint, No. SC 19134, slip op. at 12. Where it disagreed was on Thiersaint’s invitation to actually adopt a broader framework.

The court noted that it was “not inclined to depart from Teague” for three reasons: because it’s possible that doing so would expand the number of challenges to old convictions (a form of the familiar floodgates argument), because extending the possibility of challenging old convictions would require more extensive and expensive judicial recording keeping, and because Teague “is relatively easy for courts to apply and achieve consistent results.” Id. at 13-14. Having held fast to the Teague standard, the court had an easy time following the Chaidez Court’s conclusion that Padilla does not apply retroactively.

Furthermore, the court added that Mr. Thiersaint’s plea counsel was under no obligation under Connecticut law to inform Thiersaint of the immigration consequences of a conviction back in 2007. Indeed, in the preceding years “more than one Connecticut court had noted…that such advice was not constitutionally required.” Id. at 17.

This is an unfortunate decisions that will make life more difficult for many migrants. That the Connecticut Supreme Court held as it did was not for a lack of able counsel. Mr. Thiersaint was represented by the Yale Law School’s Worker and Immigrant Rights Advocacy Clinic. My colleague at the University of Denver Sturm College of Law Christopher Lasch authored an amicus brief on behalf of a number of law professors.

[1] 489 U.S. 288, 301 (1989) (quoting Lambrix v. Singletary, 520 U.S. 518, 527-28 (1997)).

[2]See Teague, 489 U.S. at 307.

[3] Griffith v. Kentucky, 479 U.S. 314, 328 (1987).

[4]Chaidez, 133 S. Ct. at 1108.