Seventh Circuit Rejects Retroactivity for Padilla

In Padilla v. Kentucky, 130 S. Ct. 1473 (2010), the Supreme Court held that a lawyer provides ineffective assistance of counsel by failing to inform a client of the deportation risks that result from a guilty plea.  As is typical, however, the Court did not clearly indicate whether its holding must be applied retroactively to cases on collateral review, leaving the lower courts to sort out the mess.  A handful of district courts have already split on this issue.  Now, with the Seventh Circuit’s ruling last week in Chaidez v. United States (No. 10-3623), the circuits are also split.

A divided panel in Chaidez rejected both retroactivty and the Third Circuit’s reasoning to the contrary in United States v. Orocio, 645 F.3d 630 (3d Cir. 2011).  As the Chaidez majority observed, the key legal issue is whether Padilla announced a new rule, or merely represented an application of the established principles of ineffective assistance from Strickland v. Washington, 466 U.S. 668 (1984).  Under Teague v. Lane, 489 U.S. 288 (1989), a new rule may not be applied retroactively unless it falls into one of two exceptions that plainly do not encompass the Padilla holding.

Teague and least some of its progeny suggest what seems effectively a strong presumption in favor of a “new rule” finding (and hence against retroactivity).  Here is how the Chaidez majority characterized the law:

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Gender Discrimination in Jury Selection as Ineffective Assistance of Counsel

A defendant’s right to reasonably competent legal representation is violated when the defendant’s lawyer discriminates on the basis of gender during jury selection, the Seventh Circuit ruled last week in Winston v. Boatwright (No. 10-1156).  The court’s reasoning would presumably apply equally to racial discrimination.  However, because of the peculiarities of federal habeas law, the particular defendant who presented the claim in Winston was unable to obtain any relief.

Here’s what happened.  Winston was charged with sexual assault of a fifteen-year-old girl and convicted by an all-woman jury.  His lawyer had used his seven peremptory strikes to remove six men and one woman from the jury.  As Winston’s post-conviction counsel later discovered, the trial lawyer struck the male jurors because he thought that females would be more critical of the victim.

Apart from the fact that such gender discrimination is illegal, trial counsel’s strategy may actually have been a good one.  Indeed, the jury acquitted Winston of an intercourse charge.

No matter, the Seventh Circuit ruled.  Competent counsel (in the constitutional sense) does not discriminate against men in the exercise of peremptory strikes.  Period.

Because Winston’s claim arose in a habeas challenge to his state-court conviction, the Seventh Circuit had to sort out the complex interaction between the Batson line of cases on discriminatory use of peremptory strikes, the Strickland line of cases on ineffective assistance of counsel, and the limitation on habeas relief imposed by the Antiterrorism and Effective Death Penalty Act.

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SCOTUS Takes Another Case on Right to Counsel in Collateral Proceedings

For the second time this month, the Court has granted certiorari in a case dealing with the right to counsel in collateral proceedings.  The first case, Martinez v. Ryan (see my post here), concerns the constitutional right to counsel in a collateral proceeding in state court.  The new case, Martel v. Clair (No. 10-1265), deals with the statutory right to counsel in a federal habeas case.

Here’s what happened.  Convicted of murder and sentenced to death in state court, Clair filed a federal habeas petition.  After discovery and an evidentiary hearing, Clair complained to the district court regarding the quality of his appointed federal public defender.  It seems that Clair and his lawyer then patched up their relationship, but a couple months later Clair again wrote to the district court and asked for the appointment of substitute counsel to pursue new leads supporting an innocence claim.  The district court denied the request in a brief order and, on the same day, denied all of the claims in the underlying petition.  On appeal, the Ninth Circuit then vacated the judgment below on the ground that the district court had abused its discretion by failing to conduct further inquiry into Clair’s complaints about his public defender.  The Supreme Court granted the state’s petition for certiorari yesterday.

At one level, the Ninth Circuit’s decision seems a very modest one that hardly warrants Supreme Court review.

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SCOWIS to Consider Required Notice for Mandatory Minimum

Late last month, the Wisconsin Supreme Court agreed to decide whether a defendant’s conviction should be set aside when he was not informed either by the complaint or by his lawyer that he would be subject to a twenty-five-year mandatory minimum if convicted.  The unpublished Court of Appeals opinion in State v. Thompson is here, courtesy of On Point.

Thompson apparently went to trial on a sex assault charge without realizing that he faced the long minimum sentence.  Although this seems like a rather big thing to spring on a defendant only after he has been convicted, it is not at all clear there is a viable legal theory to support post-conviction relief on this basis.

The court will consider three possibilities:

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SCOTUS to Rule on Right to Counsel in Collateral Proceedings

Although the Supreme Court has long recognized that defendants have a right to counsel at the first level of direct appeal, the Court has thus far declined to extend this right to collateral post-conviction proceedings, such as habeas corpus.  Earlier this week, however, the Court agreed to hear a case that will test how firm the distinction really is.  Martinez v. Ryan (No. 10-1001) involves a state-court defendant’s attempt to litigate a claim in collateral proceedings that he was prohibited from raising on direct appeal.  If he has no right to counsel in his collateral proceeding, then he has no right to counsel at all as to this issue.

Here’s what happened.

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SCOTUS to Consider Outer Limits of Procedural Default Rule

In a rather extraordinary instance of judicial activism a generation ago, the Supreme Court grafted onto the federal habeas statute an important limitation on the availability of federal relief for constitutionally defective state convictions: if the state defendant procedurally defaulted on a claim in state court, then the claim cannot be the basis for federal relief unless the defendant can show cause for and prejudice from the default.  The Court later held that errors by defense counsel, no matter how egregious, do not count as “cause” when the errors occurred in connection with a collateral attack on the conviction in state court.  However, the Court now has an ideal opportunity to limit to this rule in Maples v. Thomas (No. 10-63), a new case presenting some extraordinary facts that the Court agreed to hear last week.

Here’s what happened.  Maples was convicted of capital murder in Alabama and sentenced to death.  Following his unsuccessful direct appeal, he mounted a collateral challenge in state trial court, arguing that his original trial counsel had failed to present important mitigating evidence that would have strengthened his position at sentencing.

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Around the Blogs

I continue to enjoy Michael Cicchini’s wry posts at The Legal Watchdog.  His latest entry details in typically engaging fashion two extraordinary cases in which the Wisconsin Court of Appeals overturned convictions that were based on only the flimsiest of evidence.  He asks:

Why are some juries and some judges so eager to convict and incarcerate people? Without any evidence, is it based on race or some other physical characteristic that can’t be seen when reading the trial transcript? Or is it just our love of punishment, even in cases where a crime was committed, if at all, by someone else?

Meanwhile, Amelia Bizzaro has a helpful post at her blog on the recent SCOTUS cert. grants on ineffective assistance in plea bargaining. 

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A Bad Day for the Right to Effective Assistance

As I noted earlier, the Supreme Court reversed two habeas grants on Wednesday.  Both cases involved claims of ineffective assistance of counsel.  In my previous post, I discussed the habeas issues in one case, Harrington v. Richter (No. 09-587).  In this post, I’ll focus on the Sixth Amendment issues in the second case, Premo v. Moore (No. 09-658).

At the outset, I should say that neither case purports to change or add to the basic Strickland test, and neither case reaches a surprising result in applying the test.  Moore, however, uses some unnecessarily broad language along the way that may encourage lower courts to treat some stronger ineffective assistance claims in the future in a dismissive manner.

Moore’s lawyer advised him to accept a plea deal in light of multiple confessions he had given to a killing.  Moore took the deal, but later argued that his lawyer should have moved to suppress one of the confessions before advising Moore to plead guilty.  In light of the availability of the other confessions, however, the Supreme Court held that Moore satisfied neither the prejudice nor the performance prongs of Strickland.

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A Bad Day for Habeas Corpus

Yesterday, the Supreme Court overturned two habeas grants by the Ninth Circuit, both involving claims of ineffectiveness of counsel.  I’ll blog tomorrow about the Sixth Amendment aspects of the decisions.  Today, in this post, I’ll focus on what the Court had to say about habeas law in one of the decisions, Harrington v. Richter (No. 09-587).  It’s not good news.

The Antiterrorism and Effective Death Penalty Act of 1996 strictly limits the availability of habeas relief “with respect to any claim that was adjudicated on the merits in State court proceedings.”  28 U.S.C. § 2254(d).  Richter addressed the question of whether a summary ruling in state court counts as an adjudication on the merits.  The Court held that it did.

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More on Effective Assistance and Plea Bargaining

I blogged yesterday about one of two new SCOTUS cases on the right to effective assistance in plea bargaining.  The second, Lafler v. Cooper (No. 10-209), presents essentially the same underlying question, but on the reverse set of facts.  Cooper was charged with assault with intent to murder.  The state offered a deal that would result in a minimum term of imprisonment of 51-85 months.  As a result of a misunderstanding about the law, Cooper’s lawyer was apparently optimistic that he could beat the charge at trial.  Based on counsel’s advice,  Cooper rejected the plea deal.  He was convicted as trial and sentenced to a minimum term of 185 months.  Now, in federal habeas proceedings, Cooper seeks relief based on ineffective assistance of counsel.

As in Missouri v. Frye, there is no question that counsel’s performance was unreasonably poor — the only question is whether the defendant suffered prejudice within the meaning of Strickland.  But, whereas Frye concerns plea-bargaining prejudice when a defendant ultimately pleads guilty, Cooper deals with plea-bargaining prejudice when a defendant goes to trial and is convicted.

Depite this difference, the state’s theory in each case is the same.

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