Student Project: Padilla v. Kentucky - Immigration Consequences of a Conviction: Retroactivity of Padilla in State Courts

The Massachusetts Supreme Judicial Court acknowledged that, “it can hardly be said that recognizing the right to effective counsel ‘breaks new ground or imposes a new obligation on the States.’” As such, the court found Padilla to be “the definitive application of an established constitutional standard” to new facts, and not the creation of a new constitutional rule. Thus, the court held that Padilla applies retroactively under federal retroactivity law, allowing defendants whose convictions were final before Padilla to nonetheless challenge their convictions under Padilla.

The Massachusetts Supreme Judicial Court affirmed its prior Padilla retroactivity holding in Clarke, diverging from the federal application of Teague and relying on state constitutional grounds. The court announced that Massachusetts courts would continue to adhere to the “original construction” of the Teague test and would not adopt the expanded test reflected in more recent decisions like Chaidez. Pursuant to the original Teague framework, as understood by the Massachusetts Supreme Judicial Court and reflected in its Clarke decision, Padilla remains retroactive for Massachusetts state law convictions.

The Supreme Court of New Mexico relied on the state's counterpart of Padilla, State v. Paredez, 101 P.3d 799 (N.M 2004)*. In Paredez, the court held that a criminal defense attorney who represents a non-citizen client “must advise that client of the specific immigration consequences of pleading guilty” to pending charges. An attorney's failure to do so will be ineffective assistance of counsel if the client is prejudiced. The court concluded that Paredez did not announce a new rule and applies retroactively, thus allowing Ramirez to attack his convictions on collateral review. In reaching this decision, the court applied Teague's framework to the circumstances and legal history in New Mexico. The court focused heavily on New Mexico’s long history of recognizing non-citizen defendants’ rights to immigration warnings. Since 1990, the New Mexico Supreme Court required lawyers to advise their clients about immigration consequences as part of the criminal guilty plea proceeding. This requirement, coupled with professional guidelines from the time of Ramirez’s conviction instructing criminal defense attorneys to provide immigration warnings, distinguishes New Mexico’s regime from the federal one.

The Court announced that if a constitutional rule is deemed new, that rule will generally not apply retroactively on collateral review of a conviction. The Court determined that a new rule is one that “breaks new ground or imposes a new obligation on the States or the Federal Government” and therefore is “not dictated by precedent existing at the time the defendant’s conviction became final.” A new rule will apply retroactively only if: 1) if it declares “certain kinds of primary, private individual conduct [to be] beyond the power of the criminal law-making authority to proscribe,” or 2) if it calls for the provision of safeguards that are “implicit in the concept of ordered liberty.”

Much like South Dakota, New York calls for courts to consider three factors in determining retroactivity: 1) the purpose to be served by the new standards, 2) the extent of the reliance by law enforcement authorities on the old standards, and 3) the effect on the administration of justice of a retroactive application of the new standards. New York courts give special weight to the purpose of the new rule. As such, if the purpose is central to the fact-finding process and to the reliable determination of innocence or guilt, the rule should apply retroactively. In Baret, the Court applied a narrower and more literal interpretation of the purpose factor to find that “Padilla has nothing to do with a reliable determination of guilt or innocence; rather, Padilla assures that noncitizen defendants appreciate the immigration risks that inhere in guilty pleas to crimes they acknowledge during the plea allocution to having committed.” Thus, while not articulating whether Teague controlled the retroactivity determination, the Court of Appeals ruled that Padilla does not apply retroactively to state law convictions.

South Dakota long ago rejected Teague as the state retroactivity standard. The state instead applies its own test, which considers: 1) the purpose of the decision, 2) reliance on the prior rule of law, and 3) the effect upon the administration of justice. In Garcia, the Supreme Court of South Dakota considered two issues: whether Padilla announced a new rule and whether Padilla applies retroactively. Although at the time of Garcia’s 2004 conviction South Dakota had not yet rejected ineffective assistance of counsel claims based on inaccurate or absent immigration warnings, the court determined that his attorney “would have justifiably relied” on “the almost universal holding among federal and state courts” that the failure to advise a defendant of the deportation consequences of a guilty plea did not constitute ineffective assistance of counsel. Moreover, the court found that retroactive application of Padilla could have a disruptive effect on the criminal justice system by undermining the finality of any guilty plea entered before Padilla. As such, the court refused to apply Padilla retroactively to cases that were decided prior to Padilla.

The Court of Special Appeals of Maryland recognized that it was not bound by Teague and declined to adopt Teague generally as the state’s test for retroactivity. Nevertheless, the court declared itself bound by the federal rule for Padilla retroactivity because no independent state basis could support a contrary holding. As the Maryland court had previously held that “‘[t]here is no distinction between the right to counsel guaranteed by the Sixth Amendment and Art. 21 of the Maryland Declaration of Rights,’” the court could not articulate an independent state law basis to support ineffective assistance claims, leaving the state bound by the Supreme Court’s retroactivity determination. Moreover, the court articulated that by the time of Miller’s 1999 conviction, the Maryland Court of Appeals had adopted a rule requiring trial courts to advise defendants about possible immigration consequences, but failure to provide such warnings “did not render a guilty plea involuntary.” Finally, the court also expressed concerns that a contrary finding would lead to inequitable applications of law, as defendants convicted under state law would be able to bring collateral attacks against their convictions, while defendants convicted under federal law would not.