Should Courts Apply Padilla Retroactively?

Two years ago, the Supreme Court ruled in Padilla v. Kentucky that immigrants have a right to effective counsel and must be told about possible deportation stemming from a guilty plea. Next week, the Court will take up the issue once again, deciding whether Padilla applies retroactively.

The case, Chaidez v. U.S., involves Roselva Chaidez, a Mexican immigrant who became a lawful permanent resident in 1977. In June 2003, Chaidez was indicted on three counts of mail fraud in connection with a staged accident insurance scheme in which the victims' loss exceeded $10,000. On the advice of counsel, Chaidez pleaded guilty to two counts in December 2003, and was sentenced to four years' probation.

Federal law provides that an alien who is "convicted of an aggravated felony at any time after admission is deportable." Chaidez's plea made her eligible for removal as an aggravated felon, but her lawyer had never advised her of that risk.

The government initiated removal proceedings in 2009, and Chaidez tried to have her conviction overturned to avoid removal. While Chaidez's motion for a writ of coram nobis was pending before the district court, the Supreme Court decided Padilla. Chaidez then argued that she was entitled to relief under Padilla.

Though a district court agreed with her, the Seventh Circuit Court of Appeals ruled last year that Padilla did not apply retroactively to Chaidez because it announced a new rule that did not fall within either of the Teague v. Lane exceptions.

(Under Teague, a new rule applies only to cases that still are on direct review, unless one of two exceptions applies: (1) it is substantive or (2) it is a watershed rule of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding.")

The real question for the Court is whether the Padilla holding counts as a "watershed" rule. It's a seemingly subjective question. Since most of the justices that decided Padilla are still on the Court today -- Justice Kagan is the only addition to the Court since the decision -- the Court shouldn't have trouble deciding whether Padilla announced a new rule, or whether it simply applied an old rule to new facts.

Related Resources:

• Padilla v. Kentucky (FindLaw's CaseLaw)
• Chaidez v. U.S. (Seventh Circuit Court of Appeals)
• First Sale Doctrine in Danger? SCOTUS to Review Grey Market Books (FindLaw's Supreme Court Blog)