Symposium: The Tension of Padilla Retroactivity in New Jersey: Developments in Ineffective Assistance of Counsel Regarding the Immigration Consequences of Criminal Proceedings
For many non-citizens facing removal in immigration proceedings, a last opportunity for relief is the defense that they received ineffective assistance of counsel when accepting plea deals in criminal court in violation of the standards set forth in the seminal cases of State v. Nuñez-Valdéz, 200 N.J. 129 (2009) and Padilla v. Kentucky, 559 U.S. —, 130 S.Ct. 1473 (2010). The gravamen for the U.S. Court of Appeals for the Third Circuit and the New Jersey Supreme Court subsequent to the Padilla decision was whether this standard should retroactively apply to cases where convictions pre-date Padilla’s ruling. Applying the same governing retroactivity principle, these courts reached clashing interpretations. The U.S. Court of Appeals for the Third Circuit in U.S. v. Orocio, 645 F.3d 630 (3d Cir. 2011) found Padilla merely restated an existing requirement and was therefore retroactive. In contrast, the New Jersey Supreme Court found in State v. Gaitan, 209 N.J. 339 (2012) that Padilla was a new rule and therefore prospective only.
[Click here to see a list of all the symposium contributions.]
Realizing this tension, the Superior Court of New Jersey Appellate Division in State v. Barros recognized that the defendant had a “colorable claim for relief in the federal courts of the State” directed him to petition for a writ of habeas corpus in the United States District Court for the District of New Jersey. State v. Barros, 425 N. J. Super. 329 (App. Div. 2012); see also “Construction and Application by State Supreme Courts of Supreme Court’s Ruling in Padilla v. Kentucky, 130 S. CT.1473, 76 L. Ed. 2d 284 (2010), That Defense Counsel Has obligation to Advise Defendant That Entering Guilty Plea Could Result in Deportation,” 74 A.L. R. 6th 373 (2012); see generally Dorothy A. Harbeck et al., “The Impact of Padilla v. Kentucky on the Immigration Courts: Does the Potential for Vacating a Criminal Plea Effect Removal/Deportation Proceedings?”, 1 St. John’s J. Int’l & Comp. L. 48 (2011).
On April 30, 2012, the U.S. Supreme Court granted certiori to U.S. v. Chaidez, a case arising from the Northern District of Illinois which assesses Padilla’s retroactivity. Chaidez v. U.S., 655 F.3d 684 (7th Cir. 2011) certiori granted by Chaidez v. U.S., 2012 WL 1468539 (Apr. 30, 2012) (No. 11-820). Interestingly, the Northern District of Illinois initially held Padilla to be retroactive and this determination was then overturned by the Ninth Circuit.
Governing Legal Principles: Ineffective Assistance of Counsel
The Sixth Amendment of the United States Constitution and the New Jersey Constitution guarantee criminal defendants the right of counsel, which requires that defendants receive “effective assistance of counsel.” Strickland v. Washington, 466 U.S. 668, 686 (1984).
To establish an ineffective assistance of counsel claim, a defendant must establish: 1) the performance prong—i.e., whether counsel’s representation “fell below an objective standard of reasonableness” and 2) the prejudice prong- i.e., whether “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, supra, at 688-94; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting Strickland standard for ineffective assistance of counsel claims under New Jersey Constitution).
With the Strickland standard in mind, both the New Jersey Supreme Court and the United States Supreme Court decided cases concerning ineffective assistance of counsel claims in which guilty pleas were followed by immigration consequences. In 2009, the New Jersey Supreme Court in Nuñez-Valdéz imposed a duty on counsel to avoid providing false or affirmatively misleading information about the deportation consequences of a guilty plea. Nuñez-Valdéz, supra, at 131. A year later, the United Supreme Court in Padilla mandated that defense attorneys must affirmatively advise their clients of the potential immigration consequences of pleading guilty or essentially the attorney is at risk of providing constitutionally defective assistance of counsel. Padilla, supra, at 1483.
Retroactivity
The U.S. Supreme Court precedent of Teague v. Lane, 489 U.S. 288 (1989) governs retroactivity of constitutional principles to criminal cases. The Teague test for determining whether a constitutional principle involved in a criminal case should be applied retroactively was based on classification of a “new rule” or an “old rule.” A rule is “new” “if the result was not dictated by precedent existing at the time the defendant’s conviction became final.” Teague, supra, at 301. There is a general rule of nonretroactivity for new rules on collateral review. See generally Danforth v. Minnesota, 552 U.S. 264, 279 (2008). A new rule is retroactively applicable to cases on collateral review only if: 1) the new rule places certain kinds of criminal conduct beyond the power of the criminal law-making authority to proscribe or 2) the new rule is a “watershed rule[ ] of criminal procedure” that “alter[s] our understanding of the bedrock procedural elements that must be found to vitiate the fairness of a particular conviction.” Teague, supra, at 311.
Put another way, a new rule is not entitled to retroactive application, whereas an old rule should be retroactively applied on direct and collateral review.
Third Circuit Reasons that Padilla is an Old Rule and Therefore Retroactive
The Third Circuit ruling in U.S. v. Orocio, 645 F.3d 630 (3d Cir. 2011) was the first U.S. Circuit Court of Appeals to rule on the retroactivity of Padilla. This case emanated from a guilty plea in U.S. District Court of New Jersey to simple possession of a controlled substance. Orocio was arrested in New Jersey on October 3, 2003 and was later charged by indictment in federal court with drug trafficking. As a result of a plea agreement Orocio pled guilty on October 7, 2004 to one count of possession of a controlled substance in contravention of 21 U.S.C. § 844. This guilty plea triggered his removal proceedings.
The Orocio Court discussed its analysis under two U.S. Supreme Court precedents Teague and Strickland. Orocio concluded that because Padilla “followed directly from Strickland and long established professional norms, it is an “old rule” for Teague purposes and is retroactively applicable on collateral review.” Orocio, supra, at 641. The Orocio Court reasoned that Padilla did not “break new ground” but instead merely “reaffirmed defense counsel’s obligation to the criminal defendant during the plea process.” Orocio, supra, at 638. In support of its contention that Padilla is an old rule, Orocio cited to the Padilla opinion itself which seemingly anticipated the retroactive application of its holding when it considered the possibility of floodgates and the effect on final convictions. Orocio, supra, at 641. Orocio held Padilla involves an old rule and thus commanded retroactive application. To date, the Fifth, Seventh and Tenth Circuits have held that Padilla should not be retroactively applied. See U.S. v. Amer, 681 F.3d 211 (5th Cir. 2012), U.S. v. Chang Hong, 671 F.3d 1147 (10th Cir. 2011) and Chaidez, supra.
New Jersey Supreme Court finds Padilla is a “New Rule” and Therefore Retroactive
On February 28, 2012, the New Jersey State Supreme Court issued its long-awaited ruling in State v. Gaitan, 209 N.J. 339 (2012). The subject of this case (consolidated with State v. Goulbourne) is a petition for post conviction relief (PCR). Defendant was a lawful permanent resident who on June 27, 2005 pled guilty to third degree distribution of a controlled dangerous substance within 1000 feet of a school pursuant to N.J.S.A. 2C:35-7. This guilty plea rendered him removable as an aggravated felon under the Immigration and Nationality Act (INA) § 237(a) (2) (A) (iii).
Pursuant to the principles of Teague and Strickland, the Gaitan Court conclusively held that Padilla presents a new rule and should not be applied retroactively. Gaitan, supra, at 371. In the first part of its analysis the Orocio Court reasoned that Padilla is a new rule not because of what it applies (Strickland), but where it applies (to collateral immigration consequences of a plea bargain). Padilla is not a simple application of Strickland to new facts.
The Gaitan Court further found that reasonable minds could disagree about whether Padilla could be anticipated and therefore was not dictated by precedent. Gaitan, supra, at 368. The Gaitan Court observed the various viewpoints expressed in the Padilla opinion and also the pre-Padilla disagreement among federal courts about whether there is a Sixth Amendment duty to provide advice about collateral consequences.
The Gaitan Court observed that the Supreme Court has never applied Strickland to collateral consequences of a guilty plea. Put another way, it has never before held that Sixth Amendment requires a criminal attorney to provide advice about matters not directly related to the criminal prosecution. The New Jersey Supreme Court held that “[although the [U.S.] Supreme Court stated in INS v. St. Cyr that defense counsel should advise clients about immigration consequences…the context was not a discussion of the Sixth Amendment right to counsel, and the Court did not require such advice.” Gaitan, supra, at 369.
Lastly, the Gaitan Court deduced that the Padilla decision itself does not provide evidence that the Court believed it was applying an old rule. Gaitan, supra, at 369-70. Although Padilla was heard and decided on habeas corpus review, Respondent Kentucky failed to raise as a defense that Padilla was seeking review of a new rule. Moreover, the Court’s concern about a flood of challenges does not shed light as to whether it is a new or old rule. The Court’s concern could have been regarding all cases on direct appeal and collateral review or cases just on direct appeal.
The Gaitan ruling is in direct conflict with the Third Circuit ruling in Orocio, supra which was decided eight months earlier. Significantly, the Gaitan Court acknowledged the Orocio decision: “The Third Circuit, the first Court of Appeals to address the issue, initially concluded that Padilla involved the application of the existing Strickland test, which made its holding applicable on collateral review.” Gaitan, supra, at 366-67.
Instead of following Orocio’s analysis, Gaitan takes its lead instead from a footnote in a subsequent case decided by the same three judge panel that decided Orocio and noted that “there is no judicial consensus on the issue [of Padilla‘s retroactivity] and [that] many lower courts have come to a contrary conclusion.” Gaitan, supra, at 366 quoting Diop v. ICE/Homeland Sec., 656 F.3d 221, 228 n. 5 (3d Cir. 2011) (calling possibility that Padilla is not retroactive “far from remote.”)
Gaitan observed:
In the past, noncitizens who committed certain crimes had opportunities to avoid deportation or removal, either through statutory waivers or the exercise of judicial discretion. However, beginning in 1990, most forms of relief for noncitizens who committed crimes qualifying as aggravated felonies were eliminated, thereby rendering them almost certain to be removed.
Gaitan, supra, at 358. After a short history of the development of U.S. immigration laws, the Gaitan Court noted the comment of the U.S. Supreme Court that “[b]ecause of changes to immigration laws, “if a noncitizen has committed a removable offense after the 1996 effective date of these amendments, his removal is practically inevitable….” Id. at 360-61 citing Padilla, 130 S.Ct. at 1480. Gaitan also mentioned that as early as 1988, New Jersey Plea Forms included a question addressing possible immigration consequences. Id. at 362.
In applying the two exceptions of Teague to Padilla, Gaitan emphatically opined: “Neither of those exceptional circumstances is evident here. The case does not implicate substantive criminal activity nor does it reach the heights required for a ‘watershed’ rule.” Gaitan, supra, at 365-66.
The Gaitan Court commented that the only previous example the U.S. Supreme Court has ever provided of a new rule that has met the watershed standard has been Gideon v. Wainwright’s holding that indigent criminal defendants must be provided counsel. Gaitan, supra, at fn. 9. Since the standard was set forth in Teague, no new rule has met the “watershed” threshold.
Reconciling the Two Disparate Decisions and Remedies
One distinction between the two decisions is that Orocio deals with a conviction in federal court under the U.S. Code while Gaitan deals with a conviction in New Jersey state court under the New Jersey criminal code. The different fora allow for the divergent interpretation within New Jersey for the time being.
The Superior Court of New Jersey Appellate Division in State of New Jersey v. Barros, —A.3d—-, 2012 WL 1365801 (N.J.Super.A.D. 2012) suggested that defendants, in the meantime, seek habeas relief in the federal court in New Jersey (“For that reason, we will stay our mandate to allow defendant an opportunity to file a petition for a writ of habeas corpus in the United States District Court for the District of New Jersey). The Superior Court stated that “noncitizens in defendant’s position are likely entitled to federal habeas corpus relief when that relief is sought within the Third Circuit.” Such action would provide relief to those individuals with NJ convictions seeking post-conviction relief and who have had their PRC petitions dismissed by the criminal courts following the Gaitan decision.
Ultimately, the retroactivity of Padilla will be determined by the U.S. Supreme Court, which has just agreed to hear arguments on this issue during its upcoming term that begins in October (with a decision likely early next year). Chaidez v. U.S., 655 F.3d 684 (7th Cir. 2011) certiori granted by Chaidez v. U.S., 2012 WL 1468539 (Apr. 30, 2012) (No. 11-820).
Amelia Wilson is the Detention Attorney at the Immigrant Rights Program of the American Friends Services Committee in Newark, NJ. She is also an adjunct professor at Seton Hall University School of Law. This article originally appeared in The Green Card, a publication of the Federal Bar Association’s Immigration Law Section. It is reprinted here with permission.
