Redress in State Postconviction Proceedings for Ineffective Crimmigration Counsel

In its 2010 decision in Padilla v. Kentucky, the Supreme Court held the Sixth Amendment right to counsel encompasses what can properly be termed the right to effective “crimmigration” counsel — counsel on whether a guilty plea is accompanied by a risk of deportation. But in 2013, the Court took a step back from Padilla. Although most Padilla claims are properly brought after the expiration of direct review, in Chaidez v. United States the Court held Padilla announced a “new rule” of constitutional criminal procedure that would not be retroactively applied to cases already final on direct review. Essentially, Padilla would apply only prospectively, to guilty pleas entered after Padilla’s announcement. State courts, however, are free to craft their own rules for determining when the violation of a new constitutional rule will entitle a defendant to redress in state postconviction proceedings. The highest courts in six states — Connecticut, Maryland, Massachusetts, New Mexico, New York, and Tennessee — have taken up the question of Padilla retroactivity. This article explains why state courts considering claims properly raised for the first time in state postconviction proceedings should grant redress for violations of the Padilla rule. Part I discusses “crimmigration” — the expanded linking of the criminal and immigration justice systems since 1986 — and the rise of the Padilla right to effective “crimmigration” counsel. Part II recounts the Court’s loss of will to enforce the Padilla right, as evidenced by the Chaidez decision holding Padilla would not be retroactively applied. Understanding Chaidez requires some background, so Part II first examines the Supreme Court’s Griffith and Teague rules for applying “new” rules of constitutional criminal procedure, briefly discussing the theoretical underpinnings of those rules, and then turns to the Court’s reframing in 2008 of retroactivity as “redressability” in Danforth v. Minnesota. Part II concludes with a discussion of the Court’s decision in Chaidez. Part III briefly introduces three of the cases in which Padilla retroactivity is currently being litigated in state supreme courts, and then examines the specific ways in which the policies underlying the Griffith/Teague rules are different when applied in state postconviction proceedings. Because the finality concerns driving the Teague antiretroactivity rule are either absent or weakly present, and the concerns underlying the Griffith rule of redressability are strongly present, Part III concludes that the Griffith rule, and not the Teague rule, should govern in state postconviction proceedings. Part IV considers, for states that choose to continue applying the Teague rule, a question left open in Chaidez: Whether the Padilla rule should be considered a “watershed” rule and therefore excepted from Teague’s bar to redress. Because Padilla should be considered a “watershed” rule, even state courts that adhere to Teague ought to grant redress for violations of the Padilla rule, even if the violation pre-dated Padilla. Part V concludes, briefly examining how the crimmigration context in which Padilla retroactivity is being litigated may impact judicial decisionmaking.