SCOTUS to Decide on Padilla Retroactivity

Earlier today, the Supreme Court granted cert. in Chaidez v. United States, 655 F.3d 684 (7th Cir. 2011). Chaidez held that the Court’s decision in Padilla v. Kentucky, 130 S. Ct. 1473 (2010), would not be applied retroactively to defendants whose convictions were already final when Padilla came out. In Padilla, the Court held that a lawyer performs below minimal constitutional standards when he or she fails to advise a client of the deportation risks of a guilty plea. Now, the Court itself will have an opportunity to determine whether its decision should have retroactive effect.

The majority and dissenting judges in Chaidez all agreed that the case turned on whether Padilla announced a new rule of criminal procedure, within the meaning of Teague v. Lane, 489 U.S. 288 (1989). With only a couple of execeptions not relevant here, Teague prohibits retroactivity for new rules. So, the question in Chaidez seems to boil down to whetherPadilla announced a new rule or merely applied the basic ineffective assistance test of Strickland v. Washington, 466 U.S. 668 (1984).

 

 

From the majority’s perspective, it was decisive that Padilla produced a concurring and a dissenting opinion, both of which were supported by two justices and both of which expressed the view that Padilla constituted a “dramatic departure from precedent.” That four justices saw Padilla as not mandated by precedent provided strong evidence that it announced a new rule. Additional evidence to this effect came from the great weight of pre-Padilla lower-court precedent, which recognized an exception to Strickland for failures to advise regarding collateral consequences of convictions.

Judge Williams, in dissent, emphasized the flexible, open-ended nature of the basic Strickland test: “[W]here the starting point is a rule of general application such as Strickland, it will be the infrequent case that yields a result so novel that it forges a new rule, one not dictated by precedent.” 655 F.3d at 695 (quoting Wright v. West, 505 U.S. 277 (1992) (Kennedy, J., concurring)).

It will be interesting to see whether the Supreme Court endorses Williams’ approach. It would seemingly minimize the effectiveness of the Teague bar in Strickland cases, and perhaps in many other sorts of cases in which constitutional rights are defined by reference to broadly worded standards (e.g., Brady materiality decisions or determinations of whether a person was ”in custody” for Miranda purposes.) Read for all its worth, the Williams approach might eliminate the Teague bar for any precedent that did not expressly overturn an otherwise-controlling decision.

But I’m not so sure that limiting the effectiveness of Teague would be such a bad thing. What really motivated the Teague plurality to adopt the retroactivity bar was a desire for greater finality in criminal litigation, particularly when it comes to federal habeas courts reviewing the judgments of state courts.

Since Teague, however, Congress has erected a host of new statutory obstacles that federal courts must overcome before upsetting state-court judgments. Particularly noteworthy is 28 U.S.C. § 2254(d), which largely codifies the Teague rule for habeas petitions attacking state-court convictions. Also relevant are the new one-year statute of limitations for habeas petitions and new restrictions on filing multiple habeas petitions. Finally, procedural default rules that antedate Teague also impose important constraints on the ability of defendants to challenge longstanding convictions based on favorable new precedent. Against this backdrop, Teague has largely outlived its usefulness.

In practice, adopting a more relaxed approach to Teague would likely only benefit a very small number of defendants, most or all of whom would be individuals (like Chaidez herself) challenging federal convictions–convictions whose finality does not implicate the federalism considerations that seem to have animated Teague.

Cross posted at Seventh Circuit Updates.