The Supreme Court’s decision in Padilla v. Kentucky, 559 U.S. 356 (2010), established that a defendant in a criminal case has a constitutional right to be informed of the immigration consequences of a guilty plea. If the defendant’s attorney fails to inform the defendant of such consequences, the defendant may have grounds to move to have the plea vacated.
The Padilla decision was a narrow ruling that left many issues unresolved. It was the state courts, facing a growing number of applications for Padilla relief, that stepped in to provide provisional answers.
Does Padilla Apply to Old Cases?
One of the most important unresolved issues was whether Padilla would apply to guilty pleas entered before 2010. In legal parlance, this is referred to as retroactivity.
Under federal constitutional law, a decision of the Supreme Court has retroactive application if it applies an “old rule” to a new set of facts. However, if the decision creates a “new rule,” the decision will only apply prospectively, to those cases that come afterward.
The Massachusetts Answer
The Massachusetts Supreme Judicial Court (SJC) made its contribution to the debate over Padilla retroactivity with its decision in Commonwealth v. Clarke:
There is no question that the holding in Padilla is an extension of the rule in Strickland, which articulated the two steps required for establishing ineffective assistance of counsel:
“First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense.”
460 Mass. 30, 37 (2011)
The SJC held that because Padilla was not a new rule, but rather an extension of the old rule established in Strickland v. Washington, 466 U.S. 668 (1986), it should have retroactive application. The reasoning of the SJC closely resembled that of many other state courts grappling with same issue. As the majority of the Padilla-related motions filed in state courts had to do with this question of retroactivity, the Supreme Court was compelled to provide direction.
The Federal Answer
In March 2013, the Supreme Court published its decision in Chaidez v. United States, 568 U.S. ____ (2013) announcing that Padilla does not apply to criminal cases finalized before Padilla was decided. Considering the number of post-conviction relief motions pending in state courts nationwide at the time the decision was published, the consequences of the decision were tremendous.
The Chaidez decision has in a short span of time yielded a wealth of commentary highlighting the paradoxical nature of retroactivity analysis. Devastating as the Chaidez decision no doubt was to innumerable post-conviction petitions pending in state courts throughout the nation, attorneys and prospective litigants should beware not to overstate the decision’s significance.
All Floor, No Ceiling
When the Supreme Court interprets a constitutional right, it is articulating a standard minimum. “States are still entirely free to effectuate under their own law stricter standards than those we have laid down and to apply those standards in a broader range of cases than is required by this decision.” Johnson v. New Jersey, 384 U.S. 719, 733 (1966). This principle also lay at the core of the Supreme Court’s 2008 decision in Danforth v. Minnesota, 552 U.S. 264 (2008).
Therefore, a litigant who, after Chaidez, is not be entitled to a new trial as a matter of federal constitutional law, may nonetheless find relief in the more protective constitutional interpretations of the state court.
In Massachusetts, where the SJC’s Clarke decision established a precedent for the retroactive application of Padilla, one may argue that after Chaidez, even though relief is not mandated by the Constitution, it is warranted under by state case law.
This piece of prognostication is supported by identical footnotes in a pair of recent decisions issued by the Appeals Court of Massachusetts. In Commonwealth v. Gomes, 83 Mass. App. Ct. 1115, 982 N.E.2d 1225 (2013), and Commonwealth v. Barbosa, 83 Mass. App. Ct. 1115, 982 N.E.2d 1226, the court implicitly left the door open for future argument along the Padilla/Clarke line: “Whether considered under the Chaidez standard or the more generous Padilla/Clarke standard, the result we reach is the same.”