What Counts as a Teague ‘New Rule’? Supreme Court Hears Argument About Pre-Padilla Criminal Plea Involving Defense Counsel’s Failure to Warn of Deportation

November 1, 2012
Guest Post

By Rebecca Sharpless, Associate Clinical Professor, University of Miami School of Law


Two years ago in Padilla v. Kentucky the U.S. Supreme Court ruled that the Sixth Amendment requires that defense attorneys advise their noncitizen clients about the immigration consequences of a plea. The Court recognized what, for decades, the defense and immigration bars have known: competent defense counsel must advise about immigration consequences of a plea. Today, in Chaidez v. USA, No. 11-820, the Court hears argument on the question of whether Padilla governs cases involving federal convictions that predate that decision.

Chaidez’s defense attorney failed to advise her that pleading guilty to the federal crime of mail fraud would be deemed an aggravated felony, triggering mandatory deportation.  Before Padilla was decided, Chaidez petitioned for a writ of coram nobis under 28 U.S.C. § 1651(a) to set aside her conviction based on ineffective assistance of counsel. After Padilla, Chaidez relied upon the decision to lend support to her argument that her attorney had breached a duty to advise her about deportation.

Chaidez has been described as raising whether Padilla has “retroactive application” under Teague v. Lane. Under Teague’s retroactivity analysis, federal courts may not apply “new rules” of criminal procedure on federal habeas review of a state conviction unless they fall into one of two narrow exceptions. (The government argues Teague applies not only to state convictions, but to federal convictions like Chaidez’s as well.)

But Chaidez may be better understood as involving the threshold question of whether Teague’s retroactivity analysis even applies. Under Teague, only new rules need be tested to see if they are retroactive. Old rules always apply, thus needing no retroactivity analysis.

The pivotal issue is whether Padilla announced a Teague “new rule” or instead applied Strickland v. Washington’s “old rule” governing ineffective assistance claims to the failure to advise of immigration consequences. The strength of Chaidez’s position lies in the Padilla decision itself. Padilla did not reverse or modify the Strickland rule. It just applied it, citing, quoting, or referring to it over 20 times. The Court observed that it had “never applied a distinction between direct and collateral consequences to define the scope of constitutionally ‘reasonable professional assistance’ required under Strickland.”  It characterized its precedent as having “enmeshed criminal convictions and the penalty of deportation for nearly a century.” Applying Strickland, the Court found that the “weight of prevailing professional norms supports the view that counsel must advise her client regarding the risk of deportation.”

Roselva Chaidez has lived in the United States as a lawful permanent resident for over three decades. She is a mother of three U.S. citizens and a grandmother of two. As the Court deliberates on the fate of Chaidez, the lives of other noncitizens hang in the balance. An amicus brief submitted by the American Immigration Lawyers Association details the profound impact Chaidez will have on immigrants, their families, and their communities across the country. There is no statute of limitations on deportation for a criminal offense and immigration law mandates deportation for many low-level crimes.  Lawful permanent residents who have lived in the United States for many years now face deportation based on uninformed pleas in violation of the Constitution.