U.S. v. Chaidez

• Decision Date: 11 August 2010
• Docket Number: No. 03 CR 636-6,03 CR 636-6
• Citation: 730 F.Supp.2d 896
• Parties: UNITED STATES of America, Plaintiff/Respondent, v. Roselva CHAIDEZ, Defendant/Petitioner.
• Court: U.S. District Court — Northern District of Illinois

730 F.Supp.2d 896

UNITED STATES of America, Plaintiff/Respondent,

v.Roselva CHAIDEZ, Defendant/Petitioner.

No. 03 CR 636-6.

United States District Court,

N.D. Illinois,

Eastern Division.

Aug. 11, 2010.

Joel M. Hammerman, Melissa A. Childs, John F. Podliska, United States Attorney's Office, Chicago, IL, for United States of America.

Gerardo S. Gutierrez, Law Offices of Gerardo S. Gutierrez, Chicago, IL, for Roselva Chaidez.

MEMORANDUM OPINION AND ORDER

JOAN B. GOTTSCHALL, District Judge.

I. Background

Defendant/Petitioner Roselva Chaidez, a lawful permanent resident of the United States, filed a petition for writ of error coram nobis complaining that neither this court nor her attorney informed her of the immigration consequences of pleading guilty to federal charges of mail fraud. (Doc. 178.) Chaidez pled guilty on December 3, 2003 (Doc. 50), and the court sentenced her to four years of probation (Doc. 65). On October 11, 2009, Chaidez filed her petition as a separate civil case. Chief Judge James Holderman dismissed the case and instructed Chaidez to refile her petition as part of the original criminal case before this court. ( See Case No. 09 C 6372, Doc. 3.) Chaidez filed her petition as a motion on January 25, 2010. (Doc. 171.) She filed a corrected petition on March 23, 2010. (Doc. 178.) Just one week later, the Supreme Court issued its decision in Padilla v. Kentucky, --- U.S. ----, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), holding that a habeas petitioner could bring a claim for ineffective assistance of counsel where he would not have pled guilty but for the failure of his attorney to advise him of the immigration consequences of the plea.

In a previous opinion, this court explained that Chaidez would need to provide additional factual detail in order for the court to assess her claim under Padilla. United States v. Chaidez, No. 03 CR 636-6, 2010 WL 2740282, at *2 (N.D.Ill. July 8, 2010). Chaidez has now submitted an affidavit filling in some of the gaps. ( See Doc. 188.) If it appears from the affidavit that Chaidez can make out her claim, the government has requested a hearing to establish what Chaidez knew about the possibility of deportation at the time her guilty plea.

II. Analysis

A. Retroactivity

The government in its supplemental response argued that Padilla could not be applied retroactively in Chaidez's collateral attack on her guilty plea. The court concluded that Chaidez did not seek retroactive application of Padilla. Rather, the court stated, it need only apply the well-established rule in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Chaidez, 2010 WL 2740282, at *2. Upon further consideration, the court is convinced that the issue is notso straightforward, and more thorough analysis is required. Thus, as an initial matter, the court reconsiders sua sponte its ruling on retroactivity.

Only a few courts have yet weighed in on the question of Padilla's retroactive application. Some courts have found that the decision may be applied to convictions which became final before March 31, 2010, the date the Padilla decision was announced, and so is applicable retroactively. See United States v. Hubenig, No. 6:03-mj-040, 2010 WL 2650625, at *8 (E.D.Cal. July 1, 2010); People v. Bennett, 28 Misc.3d 575, 903 N.Y.S.2d 696, 700 (N.Y.Crim.Ct.2010). Other courts have reached the opposite conclusion. Gacko v. United States, No. 09-CV-4938 (ARR), 2010 WL 2076020, at *3 (E.D.N.Y. May 20, 2010); People v. Kabre, 29 Misc.3d 307, 905 N.Y.S.2d 887, 899-900 (N.Y.Crim.Ct.2010).

The Supreme Court's landmark decision in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), limited the ability of courts to hear constitutional challenges to convictions on collateral review. ¹ Teague clarified that a criminal defendant seeking to collaterally attack a conviction may not rely on a new constitutional rule of criminal procedure identified only after the date that the conviction became final.² Id. at 310, 109 S.Ct. 1060. A conviction becomes final after the judgment of conviction is rendered, the availability of direct appeal is exhausted, and the time for filing a petition for certiorari has elapsed. Id. at 295, 109 S.Ct. 1060.

The Teague analysis generally turns on whether a particular decision announced a new rule or merely applied an old rule in a new context.³ When the Court overturns its own prior precedent, clearly a new rule is established. Saffle v. Parks, 494 U.S. 484, 488, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990). "[I]t is more difficult, however, to determine whether weannounce a new rule when a decision extends the reasoning of our prior cases." Id.; accord Teague, 489 U.S. at 301, 109 S.Ct. 1060. The Teague Court elaborated:

Generally ... a case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government.... To put it differently, a case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final.

Id. (emphasis in original).

The "dictated" language from Teague suggests a broad interpretation of what constitutes a new rule. Whenever uncertainty might exist about how a certain holding applies to a new context, then it could be said that the holding does not "dictate" the particular application. But the Supreme Court has not found that every novel application of an old precedent results in the announcement of a new rule. See, e.g., Stringer v. Black, 503 U.S. 222, 237, 112 S.Ct. 1130, 117 L.Ed.2d 367 (1992) (holding that cases invalidating use of vague aggravating factors in capital sentencing applied to Mississippi's capital sentencing law despite the fact that Mississippi used a different method of weighing aggravating and mitigating factors); Penry, 492 U.S. at 318-19, 109 S.Ct. 2934 (holding that as-applied challenge to Texas death penalty statute did not seek application of new rule, despite earlier Supreme Court opinion rejecting facial challenge to the same statute). In Penry and Stringer, the Court determined that the results were "dictated" by law that existed at the time of the petitioner's conviction. Yet, neither of these decisions was unanimous. In each, Supreme Court Justices disagreed about the logical reach of the Court's earlier precedents.

In its habeas corpus jurisprudence, the Court has maintained a distinction between a court's statement of the law and its application of the law to a new set of facts. See Williams v. Taylor, 529 U.S. 362, 410-12, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Under Teague, a novel statement of law will be considered a new rule while a new application of the rule will not. Butler v. McKellar, 494 U.S. 407, 414-15, 110 S.Ct. 1212, 108 L.Ed.2d 347 (1990); see also Thomas v. Gilmore, 144 F.3d 513, 516 (7th Cir.1998) (holding that petitioner seeking per se rule that counsel must subpoena all institutional records in capital cases would be barred by Teague, "but that leaves open the possibility that his lawyer failed to come up to minimum professional standards by not subpoenaing the records in the particular circumstances of this case") (emphasis in original). This distinction is admittedly a murky one. The discovery of a new rule will depend entirely upon the level of generality at which the court defines the new holding. See Wright v. West, 505 U.S. 277, 311, 112 S.Ct. 2482, 120 L.Ed.2d 225 (1992) (Souter, J., concurring).

The holding in Padilla is an extension of the rule in Strickland.Strickland held that a defendant could have his conviction reversed if he could show that his counsel's representation "fell below an objective standard of reasonableness," and that deficiency prejudiced the defendant such that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." 466 U.S. at 687-88, 694, 104 S.Ct. 2052.⁴ The question for this court is whether Padilla announced a new rule, as defined by Teague, or whether theCourt merely applied Strickland to new facts.

Padilla could be described as establishing a per se rule that counsel must inform a client of immigration consequences before an informed guilty plea may be entered. Alternatively, the case can be read as a straightforward application of Strickland: the petitioner's attorney "fell below an objective standard of reasonableness," because, as a factual matter, the professional standards at the time of the client's plea required counsel to inform of potential immigration consequences.

Both of these potential readings have some appeal. The government points out that the language of the opinion suggests the Justices recognized the novelty of its holding. Padilla, 130 S.Ct. at 1486 ("[W]e now hold that counsel must inform her client whether his plea carries a risk of deportation."); id. at 1488 (Alito, J., concurring) ("[T]his Court has never held that a criminal defense attorney's Sixth Amendment duties extend to providing advice about [collateral consequences of a conviction].") As one court recently observed in declaring that Padilla would not apply retroactively, the Supreme Court's decision effectively changed the law in nine circuits and the majority of states. Kabre, 905 N.Y.S.2d at 892-94. Every circuit to have addressed the issue, including the Seventh Circuit, had concluded that deportation is a collateral consequence of a conviction and counsel is not ineffective for failing to warn the client about the potential immigration consequences of conviction. Id. at 892-93 (citing United States v. Gonzalez, 202 F.3d 20 (1st Cir.2000); United States v. Santelises, 476 F.2d 787 (2d Cir.1973); United States v. Del Rosario, 902 F.2d 55 (D.C.Cir.1990); United States v. Yearwood, 863 F.2d 6 (4th Cir.1988); United States v. Banda, 1 F.3d 354 (5th Cir.1993); United States v. George, 869 F.2d 333 (7th Cir.1989); United States v. Fry, 322 F.3d 1198 (9th Cir.2003); Broomes v. Ashcroft, 358...