SUPREME COURT OF THE UNITED STATES CHAIDEZ v. UNITED STATES CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
SUPREME COURT OF THE UNITED STATES
CHAIDEZ v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
No. 11–820. Argued November 1, 2012—Decided February 20, 2013
Immigration officials initiated removal proceedings against petitionerChaidez in 2009 upon learning that she had pleaded guilty to mailfraud in 2004. To avoid removal, she sought to overturn that conviction by filing a petition for a writ of coram nobis, contending that her former attorney's failure to advise her of the guilty plea's immigration consequences constituted ineffective assistance of counsel under the Sixth Amendment. While her petition was pending, this Court held in Padilla v. Kentucky, 559 U. S. ___, that the Sixth Amendment requires defense attorneys to inform non-citizen clients of the deportation risks of guilty pleas. The District Court vacated Chaidez's conviction, determining that Padilla did not announce a “new rule” under Teague v. Lane, 489 U. S. 288, and thus applied to Chaidez's case. The Seventh Circuit reversed, holding that Padilla had declared a new rule and should not apply in a challenge to a final conviction.
Held: Padilla does not apply retroactively to cases already final on direct review. Pp. 3−15.
(a)
Under Teague, a person whose conviction is already final maynot benefit from a new rule of criminal procedure on collateral review. A “case announces a new rule if the result was not dictated byprecedent existing at the time the defendant's conviction became final.” Teague, 489 U. S., at 301. And a holding is not so dictated unless it would have been “apparent to all reasonable jurists.” Lambrix
v.
Singletary, 520 U. S. 518, 527−528. At the same time, a case does not “announce a new rule, [when] it [is] merely an application of the principle that governed” a prior decision to a different set of facts. Teague, 489 U. S., at 307. Thus, garden-variety applications of the test in Strickland v. Washington, 466 U. S. 668, for assessing ineffec2
CHAIDEZ v. UNITED STATES
Syllabus
tive assistance claims do not produce new rules, id., at 687−688.
But Padilla did more than just apply Strickland's general standard to yet another factual situation. Before deciding if failing to inform aclient about the risk of deportation “fell below [Strickland's] objectivestandard of reasonableness,” 466 U. S., at 688, Padilla first considered the threshold question whether advice about deportation was“categorically removed” from the scope of the Sixth Amendment right to counsel because it involved only a “collateral consequence” of a conviction, rather than a component of a criminal sentence, 559 U. S., at ___. That is, prior to asking how the Strickland test applied, Padilla asked whether that test applied at all.
That preliminary question came to the Court unsettled. Hill v. Lockhart, 474 U. S. 52, had explicitly left open whether the SixthAmendment right extends to collateral consequences. That left the issue to the state and lower federal courts, and they almost unanimously concluded that the Sixth Amendment does not require attorneys to inform their clients of a conviction's collateral consequences, including deportation. Padilla's contrary ruling thus answered anopen question about the Sixth Amendment's reach, in a way that altered the law of most jurisdictions. In so doing, Padilla broke new ground and imposed a new obligation. Pp. 3−11.
(b) Chaidez argues that Padilla did no more than apply Strickland to a new set of facts. But she ignores that Padilla had to develop new law to determine that Strickland applied at all. The few lower court decisions she cites held only that a lawyer may not affirmatively misrepresent his expertise or otherwise actively mislead his client as to any important matter. Those rulings do not apply to her case, and they do not show that all reasonable judges thought that lawyers had to advise their clients about deportation risks. Neither does INS v. St. Cyr, 533 U. S. 289, have any relevance here. In saying that a reasonably competent lawyer would tell a non-citizen client about a guilty plea's deportation consequences, St. Cyr did not determine that the Sixth Amendment requires a lawyer to provide such information.It took Padilla to decide that question. Pp. 11–15.
655 F. 3d 684, affirmed.
KAGAN, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and SCALIA, KENNEDY, BREYER, and ALITO, JJ., joined. THOMAS, J., filed an opinion concurring in the judgment. SOTOMAYOR, J., filed a dissenting opinion, in which GINSBURG, J., joined.
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NOTICE: This opinion is subject to formal revision before publication in thepreliminary print of the United States Reports. Readers are requested tonotify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in orderthat corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
No. 11–820
ROSELVA CHAIDEZ, PETITIONER v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT
[February 20, 2013]
JUSTICE KAGAN delivered the opinion of the Court.
In Padilla v. Kentucky, 559 U. S. ___ (2010), this Court held that the Sixth Amendment requires an attorney fora criminal defendant to provide advice about the risk of deportation arising from a guilty plea. We consider here whether that ruling applies retroactively, so that a person whose conviction became final before we decided Padilla can benefit from it. We conclude that, under the principles set out in Teague v. Lane, 489 U. S. 288 (1989), Padilla does not have retroactive effect.
I Petitioner Roselva Chaidez hails from Mexico, but became a lawful permanent resident of the United States in 1977. About 20 years later, she helped to defraud anautomobile insurance company out of $26,000. After federal agents uncovered the scheme, Chaidez pleaded guilty to two counts of mail fraud, in violation of 18
U. S. C. §1341. The District Court sentenced her to four years of probation and ordered her to pay restitution.Chaidez's conviction became final in 2004.
Under federal immigration law, the offenses to which Chaidez pleaded guilty are “aggravated felonies,” subject2
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Opinion of the Court
ing her to mandatory removal from this country. See 8
U. S. C. §§1101(a)(43)(M)(i), 1227(a)(2)(A)(iii). But according to Chaidez, her attorney never advised her of that fact,and at the time of her plea she remained ignorant of it.
Immigration officials initiated removal proceedingsagainst Chaidez in 2009, after an application she made for citizenship alerted them to her prior conviction. To avoid removal, Chaidez sought to overturn that conviction byfiling a petition for a writ of coram nobis in Federal District Court.1 She argued that her former attorney's failureto advise her of the immigration consequences of pleading guilty constituted ineffective assistance of counsel under the Sixth Amendment.
While Chaidez's petition was pending, this Court decided Padilla. Our ruling vindicated Chaidez's view of theSixth Amendment: We held that criminal defense attorneys must inform non-citizen clients of the risks of deportation arising from guilty pleas. See 559 U. S., at ___ (slip op., at 9). But the Government argued that Chaidez could not benefit from Padilla because it announced a “new rule” and, under Teague, such rules do not apply in collateral challenges to already-final convictions.
The District Court determined that Padilla “did not announce a new rule for Teague purposes,” and thereforeshould apply to Chaidez's case. 730 F. Supp. 2d 896, 904 (ND Ill. 2010). It then found that Chaidez's counsel had performed deficiently under Padilla and that Chaidez suffered prejudice as a result. Accordingly, the court vacated Chaidez's conviction. See No. 03 CR 636–6, 2010
—————— 1A petition for a writ of coram nobis provides a way to collaterally attack a criminal conviction for a person, like Chaidez, who is no longer“in custody” and therefore cannot seek habeas relief under 28 U. S. C. §2255 or §2241. See United States v. Morgan, 346 U. S. 502, 507, 510– 511 (1954). Chaidez and the Government agree that nothing in thiscase turns on the difference between a coram nobis petition and ahabeas petition, and we assume without deciding that they are correct.
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WL 3979664 (ND Ill., Oct. 6, 2010).
The United States Court of Appeals for the Seventh Circuit reversed, holding that Padilla had declared a new rule and so should not apply in a challenge to a final conviction. “Before Padilla,” the Seventh Circuit reasoned, “the [Supreme] Court had never held that the Sixth Amendment requires a criminal defense attorney to provide advice about matters not directly related to [a]client's criminal prosecution,” including the risks of deportation. 655 F. 3d 684, 693 (2011). And state and lower federal courts had uniformly concluded that an attorney need not give “advice concerning [such a] collateral (as opposed to direct) consequenc[e] of a guilty plea.” Id., at
690. According to the Seventh Circuit, Padilla's holdingwas new because it ran counter to that widely accepted“distinction between direct and collateral consequences.”655 F. 3d, at 691. Judge Williams dissented. Agreeingwith the Third Circuit's view, she argued that Padilla “broke no new ground” because it merely applied established law about a lawyer's “duty to consult” with a client.655 F. 3d, at 695 (quoting United States v. Orocio, 645
F. 3d 630, 638–639 (CA3 2011) (internal quotation marksomitted)).
We granted certiorari, 566 U. S. ___ (2012), to resolve a split among federal and state courts on whether Padilla applies retroactively.2 Holding that it does not, we affirm the Seventh Circuit.
II Teague makes the retroactivity of our criminal proce——————
2Compare 655 F. 3d 684 (CA7 2011) (case below) (not retroactive); United States v. Amer, 681 F. 3d 211 (CA5 2012) (same); United States
v.
Chang Hong, 671 F. 3d 1147 (CA10 2011) (same); State v. Gaitan, 209 N. J. 339, 37 A. 3d 1089 (2012) (same), with United States
v.
Orocio, 645 F. 3d 630 (CA3 2011) (retroactive); Commonwealth v. Clarke, 460 Mass. 30, 949 N. E. 2d 892 (2011) (same).
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dure decisions turn on whether they are novel. When we announce a “new rule,” a person whose conviction is already final may not benefit from the decision in a habeas or similar proceeding.3 Only when we apply a settled rulemay a person avail herself of the decision on collateral review. Here, Chaidez filed her coram nobis petition fiveyears after her guilty plea became final. Her challengetherefore fails if Padilla declared a new rule.
“[A] case announces a new rule,” Teague explained,“when it breaks new ground or imposes a new obligation”on the government. 489 U. S., at 301. “To put it differently,” we continued, “a case announces a new rule if the result was not dictated by precedent existing at the timethe defendant's conviction became final.” Ibid. And a holding is not so dictated, we later stated, unless it would have been “apparent to all reasonable jurists.” Lambrix v. Singletary, 520 U. S. 518, 527–528 (1997).
But that account has a flipside. Teague also made clear that a case does not “announce a new rule, [when] it ‘[is] merely an application of the principle that governed'” a prior decision to a different set of facts. 489 U. S., at 307 (quoting Yates v. Aiken, 484 U. S. 211, 217 (1988)). As JUSTICE KENNEDY has explained, “[w]here the beginning point” of our analysis is a rule of “general application, a rule designed for the specific purpose of evaluating a myriad of factual contexts, it will be the infrequent casethat yields a result so novel that it forges a new rule, one not dictated by precedent.” Wright v. West, 505 U. S. 277, 309 (1992) (concurring in judgment); see also Williams v. Taylor, 529 U. S. 362, 391 (2000). Otherwise said, when all we do is apply a general standard to the kind of factual ——————
3 Teague stated two exceptions: “[W]atershed rules of criminal procedure” and rules placing “conduct beyond the power of the [government] to proscribe” apply on collateral review, even if novel. 489 U. S., at 311 (internal quotation marks omitted). Chaidez does not argue that either of those exceptions is relevant here.
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circumstances it was meant to address, we will rarelystate a new rule for Teague purposes.
Because that is so, garden-variety applications of the test in Strickland v. Washington, 466 U. S. 668 (1984), for assessing claims of ineffective assistance of counsel donot produce new rules. In Strickland, we held that legalrepresentation violates the Sixth Amendment if it falls “below an objective standard of reasonableness,” as indicated by “prevailing professional norms,” and the defendant suffers prejudice as a result. Id., at 687–688. That standard, we later concluded, “provides sufficient guidancefor resolving virtually all” claims of ineffective assistance, even though their particular circumstances will differ. Williams, 529 U. S., at 391. And so we have granted reliefunder Strickland in diverse contexts without ever suggesting that doing so required a new rule. See, e.g., ibid.; Rompilla v. Beard, 545 U. S. 374 (2005); Wiggins v. Smith, 539 U. S. 510 (2003).4 In like manner, Padilla would not have created a new rule had it only applied Strickland's general standard to yet another factual situation—that is,had Padilla merely made clear that a lawyer who neglectsto inform a client about the risk of deportation is professionally incompetent.
But Padilla did something more. Before deciding iffailing to provide such advice “fell below an objective standard of reasonableness,” Padilla considered a threshold question: Was advice about deportation “categoricallyremoved” from the scope of the Sixth Amendment right tocounsel because it involved only a “collateral consequence” of a conviction, rather than a component of the criminal
—————— 4We did not consider Teague in Williams, Rompilla, and Wiggins, but we granted habeas relief pursuant to 28 U. S. C. §2254(d)(1) becausestate courts had unreasonably applied “clearly established” law. And, as we have explained, “clearly established” law is not “new” within the meaning of Teague. See Williams, 529 U. S., at 412.
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sentence? 559 U. S., at ___ (slip op., at 7–9).5 In other words, prior to asking how the Strickland test applied(“Did this attorney act unreasonably?”), Padilla asked whether the Strickland test applied (“Should we evenevaluate if this attorney acted unreasonably?”). And as we will describe, that preliminary question about Strickland's ambit came to the Padilla Court unsettled—so that the Court's answer (“Yes, Strickland governs here”) required anew rule.
The relevant background begins with our decision in Hill v. Lockhart, 474 U. S. 52 (1985), which explicitly left open whether advice concerning a collateral consequence must satisfy Sixth Amendment requirements. Hill pleadedguilty to first-degree murder after his attorney misinformed him about his parole eligibility. In addressing hisclaim of ineffective assistance, we first held that the Strickland standard extends generally to the plea process. See Hill, 474 U. S., at 57. We then determined, however, that Hill had failed to allege prejudice from the lawyer'serror and so could not prevail under that standard. See id., at 60. That conclusion allowed us to avoid another, more categorical question: whether advice about parole (however inadequate and prejudicial) could possibly violate the Sixth Amendment. The Court of Appeals, we noted, had held “that parole eligibility is a collateral rather than a direct consequence of a guilty plea, of which a defendant need not be informed.” Id., at 55. But our ruling on prejudice made “it unnecessary to determine whether there may be circumstances under which” ad-
—————— 5We have never attempted to delineate the world of “collateral consequences,” see Padilla, 559 U. S., at ___, n. 8 (slip op., at 7, n. 8), nor do we do so here. But other effects of a conviction commonly viewed as collateral include civil commitment, civil forfeiture, sex offender registration, disqualification from public benefits, and disfranchisement. See id., at ___ (ALITO, J., concurring in judgment) (slip op., at 2–3) (listing other examples).
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vice about a matter deemed collateral violates the Sixth Amendment. Id., at 60.6
That non-decision left the state and lower federal courts to deal with the issue; and they almost unanimously concluded that the Sixth Amendment does not require attorneys to inform their clients of a conviction's collateral consequences, including deportation. All 10 federal appellate courts to consider the question decided, in the wordsof one, that “counsel's failure to inform a defendant of the collateral consequences of a guilty plea is never” a violation of the Sixth Amendment. Santos-Sanchez v. United States, 548 F. 3d 327, 334 (CA5 2008).7 That constitutional guarantee, another typical decision expounded, “assures an accused of effective assistance of counsel in ‘criminal prosecutions'”; accordingly, advice about matters like de- portation, which are “not a part of or enmeshed in the criminal proceeding,” does not fall within the Amendment's scope. United States v. George, 869 F. 2d 333, 337 (CA7 1989). Appellate courts in almost 30 States agreed.8
—————— 6In saying that much, we declined to rule not only on whether adviceabout a conviction's collateral consequences falls outside the SixthAmendment's scope, but also on whether parole eligibility should beconsidered such a consequence, as the court of appeals held. 7See Broomes v. Ashcroft, 358 F. 3d 1251, 1256 (CA10 2004); United States v. Fry, 322 F. 3d 1198, 1200–1201 (CA9 2003); United States v. Gonzalez, 202 F. 3d 20, 25 (CA1 2000); Russo v. United States, 1999 WL 164951, *2 (CA2, Mar. 22, 1999); Ogunbase v. United States, 1991 WL 11619, *1 (CA6, Feb. 5, 1991); United States v. Del Rosario, 902 F. 2d 55, 58–59 (CADC 1990); United States v. George, 869 F. 2d 333, 337 (CA7 1989); United States v. Yearwood, 863 F. 2d 6, 7–8 (CA4 1988); United States v. Campbell, 778 F. 2d 764, 768–769 (CA11 1985). 8 Rumpel v. State, 847 So. 2d 399, 402–405 (Ala. Crim. App. 2002); Tafoya v. State, 500 P. 2d 247, 252 (Alaska 1972); State v. Rosas, 183 Ariz. 421, 423, 904 P. 2d 1245, 1247 (App. 1995); Niver v. Commissioner of Correction, 101 Conn. App. 1, 3–5, 919 A. 2d 1073, 1075–1076 (2007) (per curiam); State v. Christie, 655 A. 2d 836, 841 (Del. Super. 1994); Matos v. United States, 631 A. 2d 28, 31–32 (D. C. 1993); Major v. State, 814 So. 2d 424, 431 (Fla. 2002); People v. Huante, 143 Ill. 2d 61, 68–71,
8 CHAIDEZ v. UNITED STATES
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By contrast, only two state courts held that an attorney could violate the Sixth Amendment by failing to inform aclient about deportation risks or other collateral consequences of a guilty plea.9 That imbalance led the authors of the principal scholarly article on the subject to call the exclusion of advice about collateral consequences from the Sixth Amendment's scope one of “the most widely recognized rules of American law.” Chin & Holmes, Effective Assistance of Counsel and the Consequences of Guilty Pleas, 87 Cornell L. Rev. 697, 706 (2002).10
—————— 571 N. E. 2d 736, 740–741 (1991); State v. Ramirez, 636 N. W. 2d 740, 743–746 (Iowa 2001); State v. Muriithi, 273 Kan. 952, 961, 46 P. 3d 1145, 1152 (2002); Commonwealth v. Fuartado, 170 S. W. 3d 384, 385– 386 (Ky. 2005); State v. Montalban, 2000–2739, p. 4 (La. 2/26/02), 810 So. 2d 1106, 1110; Commonwealth v. Fraire, 55 Mass. App. 916, 917, 774 N. E. 2d 677, 678–679 (2002); People v. Davidovich, 463 Mich. 446, 452, 618 N. W. 2d 579, 582 (2000) (per curiam); State ex rel. Nixon v. Clark, 926 S. W. 2d 22, 25 (Mo. App. 1996); State v. Zarate, 264 Neb. 690, 693–696, 651 N. W. 2d 215, 221–223 (2002); Barajas v. State, 115 Nev. 440, 441–442, 991 P. 2d 474, 475–476 (1999) (per curiam); State v. Chung, 210 N. J. Super. 427, 434, 510 A. 2d 72, 76 (App. Div. 1986); People v. Ford, 86 N. Y. 2d 397, 403–404, 657 N. E. 2d 265, 268–269 (1995); State v. Dalman, 520 N. W. 2d 860, 863–864 (N. D. 1994); Commonwealth v. Frometa, 520 Pa. 552, 555–557, 555 A. 2d 92, 93–94 (1989); State v. Alejo, 655 A. 2d 692, 692–693 (R. I. 1995); Nikolaev v. Weber, 2005 S. D. 100, ¶¶11–12, 705 N. W. 2d 72, 75–77 (per curiam); Bautista v. State, 160 S. W. 3d 917, 922 (Tenn. Crim. App. 2004); Perez
v. State, 31 S. W. 3d 365, 367–368 (Tex. App. 2000); State v. Rojas-Martinez, 2005 UT 86, ¶¶15–20, 125 P. 3d 930, 934–935; State v. Martinez-Lazo, 100 Wash. App. 869, 876–878, 999 P. 2d 1275, 1279– 1280 (2000); State v. Santos, 136 Wis. 2d 528, 531, 401 N. W. 2d 856, 858 (App. 1987).
9 People v. Pozo, 746 P. 2d 523, 527–529 (Colo. 1987); State v. Paredez, 2004–NMSC–036, ¶¶17–19, 136 N. M. 533, 539, 101 P. 3d 799, 805.
10The dissent is therefore wrong to claim that we emphasize “theabsence of lower court authority” holding that an attorney's failure toadvise about deportation violated the Sixth Amendment. Post, at 10 (opinion of SOTOMAYOR, J.). We instead point to the presence of lower court authority—in case after case and jurisdiction after jurisdiction—holding that such a failure, because relating to a collateral matter,
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So when we decided Padilla, we answered a question about the Sixth Amendment's reach that we had left open, in a way that altered the law of most jurisdictions—andour reasoning reflected that we were doing as much. In the normal Strickland case, a court begins by evaluatingthe reasonableness of an attorney's conduct in light of professional norms, and then assesses prejudice. But as earlier indicated, see supra, at 5–6, Padilla had a different starting point. Before asking whether the performanceof Padilla's attorney was deficient under Strickland, we considered (in a separately numbered part of the opinion) whether Strickland applied at all. See 559 U. S., at ___ (slip op., at 7–9). Many courts, we acknowledged, had excluded advice about collateral matters from the Sixth Amendment's ambit; and deportation, because the consequence of a distinct civil proceeding, could well be viewed as such a matter. See id., at ___ (slip op., at 7). But, we continued, no decision of our own committed us to “appl[y]a distinction between direct and collateral consequences todefine the scope” of the right to counsel. Id., at ___ (slip op., at 8). And however apt that distinction might be in other contexts, it should not exempt from Sixth Amendment scrutiny a lawyer's advice (or non-advice) about a plea's deportation risk. Deportation, we stated, is “unique.” Ibid. It is a “particularly severe” penalty, and one “intimately related to the criminal process”; indeed, immigration statutes make it “nearly an automatic result” of some convictions. Ibid. We thus resolved the threshold question before us by breaching the previously chink-freewall between direct and collateral consequences: Notwithstanding the then-dominant view, “Strickland applies to Padilla's claim.” Id., at ___ (slip op., at 9).
If that does not count as “break[ing] new ground” or
“impos[ing] a new obligation,” we are hard pressed to
——————
could not do so.
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know what would. Teague, 489 U. S., at 301. Before Padilla, we had declined to decide whether the Sixth Amendment had any relevance to a lawyer's advice about matters not part of a criminal proceeding. Perhaps some advice of that kind would have to meet Strickland's reasonableness standard—but then again, perhaps not: Noprecedent of our own “dictated” the answer. Teague, 489
U. S., at 301. And as the lower courts filled the vacuum, they almost uniformly insisted on what Padilla called the “categorica[l] remov[al]” of advice about a conviction's noncriminal consequences—including deportation—from the Sixth Amendment's scope. 559 U. S., at ___ (slip op., at 9). It was Padilla that first rejected that categorical approach—and so made the Strickland test operative—when a criminal lawyer gives (or fails to give) advice about immigration consequences.11 In acknowledging that fact,we do not cast doubt on, or at all denigrate, Padilla. Courts often need to, and do, break new ground; it is the very premise of Teague that a decision can be right and also be novel. All we say here is that Padilla's holdingthat the failure to advise about a non-criminal conse——————
11The separate opinions in Padilla objected to just this aspect of the Court's ruling. Dissents have been known to exaggerate the noveltyof majority opinions; and “the mere existence of a dissent,” like theexistence of conflicting authority in state or lower federal courts, does not establish that a rule is new. Beard v. Banks, 542 U. S. 406, 416,
n. 5 (2004); see Williams, 529 U. S., at 410. But the concurring and dissenting opinions in Padilla were on to something when they described the line the Court was crossing. “Until today,” JUSTICE ALITO wrote, “the longstanding and unanimous position of the federal courts was that reasonable defense counsel generally need only advise a clientabout the direct consequences of a criminal conviction.” See 559 U. S., at ___ (concurring in judgment) (slip op., at 2). Or again, this time from JUSTICE SCALIA: “[U]ntil today,” the Sixth Amendment guaranteed only “legal advice directly related to defense against prosecution” of a criminal charge. Id., at ___ (dissenting) (slip op., at 2). One need not agree with any of the separate opinions' criticisms of Padilla to concur with their view that it modified governing law.
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quence could violate the Sixth Amendment would not havebeen—in fact, was not—“apparent to all reasonable jurists” prior to our decision. Lambrix, 520 U. S., at 527–
528. Padilla thus announced a “new rule.”
III Chaidez offers, and the dissent largely adopts, a different account of Padilla, in which we did no more than apply Strickland to a new set of facts. On Chaidez's view, Strickland insisted “[f]rom its inception” that all aspects ofa criminal lawyer's performance pass a test of “‘reasonableness under prevailing professional norms'”: The decision thus foreclosed any “categorical distinction betweendirect and collateral consequences.” Brief for Petitioner 21–22 (emphasis deleted) (quoting Strickland, 466 U. S., at 688). Indeed, Chaidez contends, courts prior to Padilla recognized Strickland's all-encompassing scope and soapplied its reasonableness standard to advice concerning deportation. See Brief for Petitioner 25–26; Reply Brief 10–12. She here points to caselaw in three federal appeals courts allowing ineffective assistance claims when attorneys affirmatively misled their clients about the deportation consequences of guilty pleas.12 The only question leftfor Padilla to resolve, Chaidez claims, was whether professional norms also require criminal lawyers to volunteer advice about the risk of deportation. In addressing that issue, she continues, Padilla did a run-of-the-mill Strickland analysis. And more: It did an especially easy Strickland analysis. We had earlier noted in INS v. St. Cyr, 533
U. S. 289 (2001)—a case raising an issue of immigration law unrelated to the Sixth Amendment—that a “competent defense counsel” would inform his client about a guilty plea's deportation consequences. Id., at 323, n. 50.
—————— 12See United States v. Kwan, 407 F. 3d 1005, 1015–1017 (CA9 2005); United States v. Couto, 311 F. 3d 179, 188 (CA2 2002); Downs-Morgan
v. United States, 765 F. 2d 1534, 1540–1541 (CA11 1985).
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All Padilla had to do, Chaidez concludes, was recite that prior finding.
But Chaidez's (and the dissent's) story line is wrong, for reasons we have mostly already noted: Padilla had to develop new law, establishing that the Sixth Amendmentapplied at all, before it could assess the performance of Padilla's lawyer under Strickland. See supra, at 5–6, 9. Our first order of business was thus to consider whether the widely accepted distinction between direct and collateral consequences categorically foreclosed Padilla's claim, whatever the level of his attorney's performance. We did not think, as Chaidez argues, that Strickland barred resort to that distinction. Far from it: Even in Padilla we did not eschew the direct-collateral divide across the board. See 559 U. S., at ___ (slip op., at 8) (“Whether that distinction is [generally] appropriate is a question we neednot consider in this case”). Rather, we relied on the special “nature of deportation”—the severity of the penaltyand the “automatic” way it follows from conviction—toshow that “[t]he collateral versus direct distinction [was] ill-suited” to dispose of Padilla's claim. Id., at ___ (slip op., at 8–9). All that reasoning came before we conducted a Strickland analysis (by examining professional norms andso forth), and none of it followed ineluctably from prior law.13
—————— 13The dissent's entire analysis founders on this most basic point. In its lengthy description of Padilla, the dissent picks up in the middle— after the Court concluded that the direct-collateral distinction did not preclude finding that Padilla's lawyer provided ineffective assistanceunder the Sixth Amendment. See post, at 3–5. The dissent justifiesignoring that threshold conclusion on the ground that “Padilla declined to embrace the . . . distinction between collateral and direct consequences” and “stated very clearly that it found the distinction irrelevant” to the case. Post, at 6. But it is exactly in refusing to apply the direct-collateral distinction that the Padilla Court did something novel.Before then, as the Court forthrightly acknowledged, that distinction would have doomed Padilla's claim in well-nigh every court in the
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Predictably, then, the caselaw Chaidez and the dissent cite fails to support their claim that lower courts “acceptedthat Strickland applied to deportation advice.” Brief for Petitioner 25; see post, at 8–11. True enough, three fed-eral circuits (and a handful of state courts) held before Padilla that misstatements about deportation could support an ineffective assistance claim. But those decisions reasoned only that a lawyer may not affirmatively misrepresent his expertise or otherwise actively mislead his clienton any important matter, however related to a criminalprosecution. See, e.g., United States v. Kwan, 407 F. 3d 1005, 1015–1017 (CA9 2005). They co-existed happilywith precedent, from the same jurisdictions (and almost all others), holding that deportation is not “so unique as to warrant an exception to the general rule that a defendant need not be advised of the [collateral] consequences of aguilty plea.” United States v. Campbell, 778 F. 2d 764, 769 (CA11 1985).14 So at most, Chaidez has shown that a minority of courts recognized a separate rule for material misrepresentations, regardless whether they concerneddeportation or another collateral matter. That limited rule does not apply to Chaidez's case. And because it lived in harmony with the exclusion of claims like hers from theSixth Amendment, it does not establish what she needs to—that all reasonable judges, prior to Padilla, thoughtthey were living in a Padilla-like world.
Nor, finally, does St. Cyr have any relevance here. That
—————— United States. See 559 U. S., at ___ (slip op., at 7); supra, at 9. 14See also Resendiz v. Kovensky, 416 F. 3d 952, 957 (CA9 2005) (“[B]ecause immigration consequences remain collateral, the failure of counsel to advise his client of the potential immigration consequencesof a conviction does not violate the Sixth Amendment”); Russo v. United States, 1999 WL 164951, *2 (“[C]ounsel cannot be found ineffective forthe mere failure to inform a defendant of the collateral consequences ofa plea, such as deportation”) (relying on United States v. Santelises, 509
F. 2d 703, 704 (CA2 1975) (per curiam)).
14 CHAIDEZ v. UNITED STATES
Opinion of the Court
decision stated what is common sense (and what we againrecognized in Padilla): A reasonably competent lawyer will tell a non-citizen client about a guilty plea's deportationconsequences because “ ‘[p]reserving the client's right toremain in the United States may be more important to the client than any potential jail sentence.'” Padilla, 559
U. S., at ___ (slip op., at 10) (quoting St. Cyr, 533 U. S., at 322). But in saying that much, St. Cyr did not determine that the Sixth Amendment requires a lawyer to providesuch information. Courts had held to the contrary notbecause advice about deportation was insignificant to aclient—really, who could think that, whether before or after St. Cyr?—but because it concerned a matter collateral to the criminal prosecution.15 On those courts' view, the Sixth Amendment no more demanded competentadvice about a plea's deportation consequences than it demanded competent representation in the deportationprocess itself. Padilla decided that view was wrong. But to repeat: It was Padilla that did so. In the years following St. Cyr, not a single state or lower federal court considering a lawyer's failure to provide deportation advice
—————— 15The dissent claims the opposite, averring that lower court “decisions show nothing more than that the underlying professional norms had not yet evolved to require attorneys to provide advice about deportation consequences.” Post, at 8. But the dissent cannot point to a single decision stating that a lawyer's failure to offer advice about deportation met professional norms; all the decisions instead held thata lawyer's breach of those norms was constitutionally irrelevant because deportation was a collateral consequence. See supra, at 7. Had courts in fact considered professional standards in the slew of casesbefore Padilla that presented Padilla-like claims, they would havediscovered as early as 1968 that the American Bar Association instructed criminal lawyers to advise their non-citizen clients about the risks of deportation. See 3 ABA Project on Standards for CriminalJustice, Standards Relating to Pleas of Guilty §3.2(b), Commentary,
p. 71 (App. Draft 1968). The difficulty in upholding such claims prior to Padilla had nothing to do with courts' view of professional norms andeverything to do with their use of the direct-collateral divide.
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Opinion of the Court
abandoned the distinction between direct and collateral consequences, and several courts reaffirmed that divide.See, e.g., Santos-Sanchez, 548 F. 3d, at 335–336; Broomes
v. Ashcroft, 358 F. 3d 1251, 1256–1257 (CA10 2004); United States v. Fry, 322 F. 3d 1198, 1200–1201 (CA9 2003). It took Padilla to decide that in assessing such a lawyer's performance, the Sixth Amendment sets the standard.16
IV This Court announced a new rule in Padilla. Under Teague, defendants whose convictions became final prior to Padilla therefore cannot benefit from its holding. We accordingly affirm the judgment of the Court of Appeals for the Seventh Circuit.
It is so ordered.
—————— 16Chaidez makes two back-up arguments in her merits briefs—that Teague's bar on retroactivity does not apply when a petitioner challenges a federal conviction, or at least does not do so when she makes aclaim of ineffective assistance. Brief for Petitioner 27–39. But Chaidez did not include those issues in her petition for certiorari. Nor, still more critically, did she adequately raise them in the lower courts. Onlyher petition for rehearing en banc in the Seventh Circuit at all questioned Teague's applicability, and her argument there—that a “Teaguelight” standard should apply to challenges to federal convictions—differs from the ones she has made in this Court. See Petition for Rehearing and for Rehearing En Banc in No. 10–3623 (CA7), p. 13.Moreover, we cannot find any case in which a federal court has considered Chaidez's contention that Teague should not apply to ineffective assistance claims. “[M]indful that we are a court of review, not of firstview,” we decline to rule on Chaidez's new arguments. Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7 (2005).
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THOMAS, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
No. 11–820
ROSELVA CHAIDEZ, PETITIONER v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT
[February 20, 2013]
JUSTICE THOMAS, concurring in the judgment.
In Padilla v. Kentucky, 559 U. S. 356 (2010), this Court held that the Sixth Amendment requires an attorney fora criminal defendant to apprise his client of the risk of deportation created by a guilty plea. I dissented. The Sixth Amendment provides that “[i]n all criminal prosecutions,” an accused enjoys the right “to have the Assistanceof Counsel for his defence.” By its terms, this right extends “to legal advice directly related to defense against prosecution of the charged offense,” and “[t]here is nobasis in text or in principle” to expand the reach of this guarantee to guidance concerning the collateral consequences of a guilty plea. Id., at ___ (slip op., at 2–3)(SCALIA, J., dissenting). Today, the Court finds that Padilla announced a new rule of constitutional law and that, under our decision in Teague v. Lane, 489 U. S. 288 (1989), “defendants whose convictions became final prior to Padilla therefore cannot benefit from its holding.” Ante, at
15. I continue to believe that Padilla was wrongly decided and that the Sixth Amendment does not extend—either prospectively or retrospectively—to advice concerning thecollateral consequences arising from a guilty plea. I, there- fore, believe that the Teague analysis is unnecessary and thus concur only in the judgment.
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SOTOMAYOR, J., dissenting
SUPREME COURT OF THE UNITED STATES
No. 11–820
ROSELVA CHAIDEZ, PETITIONER v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT
[February 20, 2013]
JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG joins, dissenting. The Court holds today that Padilla v. Kentucky, 559
U. S. ___ (2010), announced a “new” rule within the meaning of Teague v. Lane, 489 U. S. 288, 301 (1989), and sodoes not apply to convictions that became final before its announcement. That is wrong, because Padilla did nothing more than apply the existing rule of Strickland v. Washington, 466 U. S. 668 (1984), in a new setting, thesame way the Court has done repeatedly in the past: by surveying the relevant professional norms and conclud- ing that they unequivocally required attorneys to provide advice about the immigration consequences of a guilty plea. Because Padilla fell squarely within the metes and bounds established by Strickland, I respectfully dissent.
I
A
The majority correctly sets forth the governing legalprinciples under Teague and Strickland. Ante, at 4–5. The Teague inquiry turns centrally on the “nature of the rule” in question, and for that reason, “[w]here the beginning point is a rule of . . . general application, . . . it will be the infrequent case that yields a result so novel that it forges a new rule.” Wright v. West, 505 U. S. 277, 308–309 (1992) (KENNEDY, J., concurring in judgment); see ante, at
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SOTOMAYOR, J., dissenting
4–5. The majority makes the important observation that “when all we do is apply a general standard to the kindof factual circumstances it was meant to address, we will rarely state a new rule.” Ibid. It makes sense, then, that “garden-variety applications of . . . Strickland . . . do not produce new rules.” Ante, at 5.
In Strickland, we did not provide a comprehensive def-inition of deficient performance, and instead held that “[t]he proper measure of attorney performance remainssimply reasonableness under prevailing professionalnorms.” 466 U. S., at 688. Strickland's reasonableness prong therefore takes its content from the standards by which lawyers judge their professional obligations, ibid., and those standards are subject to change. That is why,despite the many different settings in which it has beenapplied, we have never found that an application of Strickland resulted in a new rule.1
Significantly, we have previously found that applications of Strickland to new factual scenarios are not barred under 28 U. S. C. §2254(d)(1) of the Antiterrorism and Effective Death Penalty Act (AEDPA). Section 2254(d)(1)precludes habeas relief unless a state court decision violates “clearly established Federal law,” which, as relevanthere, largely overlaps with the inquiry under Teague of whether a decision was “dictated by precedent.” 489 U. S.,
—————— 1See, e.g., Lafler v. Cooper, 566 U. S. ___, ___–___ (2012) (incorrectadvice leading to a plea offer's rejection); Rompilla v. Beard, 545 U. S. 374 (2005) (failure to investigate evidence the prosecution intended touse to prove an aggravating circumstance in a capital case); Wiggins v. Smith, 539 U. S. 510 (2003) (failure to investigate a defendant's social history in a capital case); Roe v. Flores-Ortega, 528 U. S. 470 (2000)(failure to consult with a defendant regarding whether to pursue anappeal); Williams v. Taylor, 529 U. S. 362, 391 (2000) (failure to investigate a defendant's background for the purposes of mitigation evidence in a capital case); Hill v. Lockhart, 474 U. S. 52 (1985) (failure to pro- vide effective assistance during plea negotiations).
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SOTOMAYOR, J., dissenting
at 301 (plurality opinion).2 In Wiggins v. Smith, 539 U. S. 510, 522 (2003), for example, we found that Williams v. Taylor, 529 U. S. 362 (2000), “made no new law” when itheld that Strickland extended to an attorney's responsibility to conduct a background investigation in a capital case. Rather, we explained that “in referring to the ABA Standards for Criminal Justice as guides, [Williams] applied the same ‘clearly established' precedent of Strickland we apply today.” 539 U. S., at 522. Similarly, in Lafler v. Cooper, 566 U. S. ___, ___, ___–___ (2012) (slip op., at 6,14–16), we rejected the argument advanced by the Solicitor General that the Sixth Amendment did not extend to advice about a plea offer because it did not impact the fairness of the trial. Instead, we simply held that Strickland applied to this form of attorney misconduct.
In short, where we merely apply Strickland in a way that corresponds to an evolution in professional norms, we make no new law.
B Contrary to the majority's reconstruction, Padilla is built squarely on the foundation laid out by Strickland. Padilla relied upon controlling precedent. It began byreciting the basic rule that “[u]nder Strickland, we first determine whether counsel's representation ‘fell below anobjective standard of reasonableness.'” Padilla, 559 U. S., at ___ (slip op., at 9) (quoting Strickland, 466 U. S., at 688). We recognized that “[t]he first prong—constitutional deficiency—is necessarily linked to the practice and expectations of the legal community: ‘[t]he proper measure of
—————— 2AEDPA of course differs from the Teague rule in other important respects. See, e.g., Greene v. Fisher, 565 U. S. ___, ___ (2011) (slip op., at 5). But these differences aside, the fact that we have repeatedlyfound AEDPA cases involving Strickland to be controlled by established precedent underscores that the application of Strickland in a new context should almost never result in a new rule.
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SOTOMAYOR, J., dissenting
attorney performance remains reasonableness under pre- vailing professional norms.'” Padilla, 559 U. S., at ___ (slip op., at 9) (quoting Strickland, 466 U. S., at 688).
We therefore examined the substantial changes in fed-eral immigration law that provided the backdrop to therelevant professional standards. Padilla, 559 U. S., at ___ (slip op., at 2–6). Pursuant to the Immigration Act of1917, 39 Stat. 889–890, a judge could recommend that a defendant who had committed a deportable offense not be removed from the country. Congress entirely eliminated this procedure in 1990. 104 Stat. 5050. Then the IllegalImmigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), 110 Stat. 3009–596, abolished the Attor- ney General's authority to grant discretionary relief fromremoval for all but a small number of offenses. Padilla, 559 U. S., at ___ (slip op., at 6). These changes in immigration law meant that for a noncitizen who committeda removable offense, “removal [had become] practically inevitable.” Ibid.
In parallel with these developments, the standards ofprofessional responsibility relating to immigration had become more demanding. “For at least the past 15 years,” we observed in Padilla, “professional norms have gener- ally imposed an obligation on counsel to provide advice onthe deportation consequences of a client's plea.” Id., at ___ (slip op., at 15). Citing an array of practice guides and professional responsibility manuals, we noted that “[t]heweight of prevailing professional norms supports the view that counsel must advise her client regarding the risk of deportation.” Id., at ___ (slip op., at 9). Indeed, “authorities of every stripe—including the American Bar Association, criminal defense and public defender organizations, authoritative treatises, and state and city bar publications—universally require defense attorneys to advise asto the risk of deportation consequences for non-citizen clients.” Id., at ___ (slip op., at 10) (internal quotation
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SOTOMAYOR, J., dissenting
marks omitted).
We drew further support for our conclusion that professional standards required advice about deportation consequences from our decision in INS v. St. Cyr, 533 U. S. 289 (2001). See Padilla, 559 U. S., at ___ (slip op., at 10–11) (citing St. Cyr, 533 U. S., at 323). In St. Cyr, we had explained that the availability of discretionary relief from removal was critical to a noncitizen's decision to accept aplea offer, and expected counsel to follow the instructions of “numerous practice guides,” such as the ABA's Standards for Criminal Justice, to inform themselves of the possible immigration consequences of a plea. Padilla, 559
U. S., at ___ (slip op., at 11) (citing St. Cyr, 533 U. S., at 323, n. 50); see id., at 322, n. 48. And we there found that many States already required that a trial judge advise defendants of the same. Ibid. St. Cyr thus “recognizedthat ‘preserving the client's right to remain in the UnitedStates may be more important to the client than any potential jail sentence.'” Padilla, 559 U. S., at ___ (slip op., at 10) (quoting St. Cyr, 533 U. S., at 322).
Our application of Strickland in Padilla followed naturally from these earlier observations about changes in immigration law and the accompanying evolution of professional norms. When we decided St. Cyr and Padilla, nothing about Strickland's substance or applicability had changed. The only difference from prior law was that the underlying professional norms had changed such that counsel's failure to give this advice now amounted to constitutionally deficient performance.3 Both before Pa——————
3Even before IIRIRA and St. Cyr, lawyers of course understood that it was good practice to inform clients of the deportation consequences of a plea. See ante, at 14, n. 15 (citing 3 ABA Project on Standards for Criminal Justice, Standards Relating to Pleas of Guilty §3.2(b), Commentary, p. 71 (App. Draft 1968)). Following the sea change in immigration law, however, the professional norms had become so established and universally recognized that the measure of constitutionally ade6
CHAIDEZ v. UNITED STATES
SOTOMAYOR, J., dissenting
dilla and after, counsel was obligated to follow the relevant professional norms. It was only because those normsreflected changes in immigration law that Padilla reached the result it did, not because the Sixth Amendment righthad changed at all.
II
A
Accepting that routine applications of Strickland do not result in new rules, the majority nevertheless holds that Padilla went a step further. In its view, Padilla “‘br[oke]new ground'” by addressing the threshold question of whether advice about deportation is a collateral consequence of a criminal conviction that falls within the scopeof the Sixth Amendment. Ante, at 9–10. But that is wrong, because Padilla declined to embrace the verydistinction between collateral and direct consequences of a criminal conviction that the majority says it did. In fact, the Court stated very clearly that it found the distinctionirrelevant for the purposes of determining a defense lawyer's obligation to provide advice about the immigrationconsequences of a plea. 559 U. S., at ___, n. 8 (slip op., at 7, n. 8). We asserted that we had “never applied a distinction between direct and collateral consequences todefine the scope of constitutionally ‘reasonable professionalassistance' required under Strickland,” and concluded that “[w]hether that distinction is appropriate is a question we need not consider in this case.” Id., at ___ (slip op., at 8) (emphasis added). The distinction was “ill suited” to the task at hand, we explained, because deportation has a“close connection to the criminal process,” and is “uniquelydifficult to classify as either a direct or a collateral consequence.” Id., at ___ (slip op., at 8–9). Indeed, “[o]ur law
——————
quate performance now included giving such advice in the form Padilla
recognized. See 559 U. S., at ___ (slip op., at 10).
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SOTOMAYOR, J., dissenting
ha[d] enmeshed criminal convictions and the penalty of de- portation for nearly a century,” and we had “long recognized” that deportation is “particularly severe.” Id., at ___ (slip op., at 8).4
At bottom, then, the majority's argument hinges upon a distinction the Court has never embraced and that Padilla found irrelevant to the issue it ultimately decided. Without this revision to our recent decisional history, the majority's analysis unravels.
B The majority finds that the “legal landscape,” Graham v. Collins, 506 U. S. 461, 468 (1993), before Padilla was nearly uniform in its rejection of Strickland's applicationto the deportation consequences of a plea. Ante, at 7–10. It concludes that the lower courts were generally in agreement that the Sixth Amendment did not require attorneys to inform clients of the collateral consequencesof a plea, and that this weighs heavily in favor of finding that Padilla announced a new rule. Ante, at 7–8, nn. 7, 8.
But the majority's discussion of these precedents operates at too high a level of generality and fails to account for the ——————
4See, e.g., INS v. St. Cyr, 533 U. S. 289, 322 (2001) (noting that “[p]reserving the client's right to remain in the United States may bemore important . . . than any potential jail sentence” (internal quotation marks omitted)); Jordan v. De George, 341 U. S. 223, 243 (1951) (Jackson, J., dissenting) (deportation proceedings “practically . . . are [criminal] for they extend the criminal process of sentencing to includeon the same convictions an additional punishment”); Fong Haw Tan v. Phelan, 333 U. S. 6, 10 (1948) (“[D]eportation is a drastic measure andat times the equivalent of banishment or exile”); Ng Fung Ho v. White, 259 U. S. 276, 284 (1922) (deportation may result in “loss of bothproperty and life; or of all that makes life worth living”); Fong Yue Ting
v. United States, 149 U. S. 698, 740 (1893) (Brewer, J., dissenting)(“Every one knows that to be forcibly taken away from home, and family, and friends, and business, and property, and sent across theocean to a distant land, is punishment; and that oftentimes most severeand cruel”).
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SOTOMAYOR, J., dissenting
development of professional standards over time. St. Cyrnoted the importance of advising clients about immigration consequences was of recent vintage, indeed more re-cent than some of the cases the majority cites. See 533
U. S., at 322–323. The Court relies upon decisions issued over a period that spans more than 30 years. See ante, at 7–8, nn. 7, 8. Nearly half of them (17) were decided beforethe enactment of IIRIRA. See ibid. And all but two of the Federal Court of Appeals cases were decided before St. Cyr. See ante, at 7–8, nn. 7, 8. These earlier decisions show nothing more than that the underlying professionalnorms had not yet evolved to require attorneys to provideadvice about deportation consequences.
Cases from the period following IIRIRA and St. Cyrundermine the majority's generalizations about the stateof the law before Padilla. Deportation had long been un-derstood by lower courts to present “the most difficult”penalty to classify as either a collateral or direct consequence. United States v. Russell, 686 F. 2d 35, 38 (CADC 1982); cf. Janvier v. United States, 793 F. 2d 449, 455 (CA2 1986) (holding that Strickland applied to adviceabout a judicial recommendation against deportation).Eventually, and in parallel with changes in federal immigration law and the corresponding professional norms, thelower courts had acknowledged an important qualification to the collateral consequences rule. After the passage of IIRIRA and this Court's decision in St. Cyr, many courts concluded that a lawyer's affirmative misstatements aboutthe immigration consequences of a guilty plea can constitute deficient performance under Strickland. Indeed, each Federal Court of Appeals to address the question after St. Cyr so held. See United States v. Couto, 311 F. 3d 179, 188 (CA2 2002); United States v. Kwan, 407 F. 3d 1005, 1015 (CA9 2005); cf. Downs-Morgan v. United States, 765
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SOTOMAYOR, J., dissenting
F. 2d 1534, 1540–1541 (CA11 1985).5 State-court decisions from this period were in accord and relied upon similar reasoning.6
These decisions created an important exception to thecollateral/direct consequences distinction. They also foreshadowed the Court's reasoning in Padilla by basing theiranalysis of the relevant professional norms on the specialnature of deportation, the ABA standards governing immigration practice, and the Court's assessment of those standards in St Cyr. See Kwan, 407 F. 3d, at 1016 (“Thatcounsel may have misled [the defendant] out of ignoranceis no excuse. It is a basic rule of professional conduct that a lawyer must . . . [remain] abreast of changes in the law and its practice. . . . Counsel's performance . . . fell be- low the [ABA]'s ethical standard for criminal defense at- torneys with respect to immigration consequences. The Supreme Court noted this standard in [St. Cyr]”); Couto, 311 F. 3d, at 187–191 (citing St. Cyr and the relevant ABA standards, and concluding that “recent Supreme Court authority supports [a] broader view of attorney responsibility” that encompasses affirmative misrepresentations
—————— 5See United States v. Mora-Gomez, 875 F. Supp. 1208, 1212 (ED Va. 1995) (“[T]he clear consensus is that an affirmative misstatement regarding deportation may constitute ineffective assistance”). 6See Rubio v. State, 124 Nev. 1032, 1041, 194 P. 3d 1224, 1230 (2008) (per curiam) (“Like other jurisdictions, we recognize the particularlyharsh and penal nature of deportation. The Supreme Court of the United States has described deportation as ‘a drastic measure and attimes the equivalent of banishment or exile' and further depicted it as‘a penalty.' . . . Perhaps understanding the harshness of deportation, agrowing number of jurisdictions have adopted the affirmative misrepresentation exception to the collateral consequence rule”); People v. Correa, 108 Ill. 2d 541, 550–552, 485 N. E. 2d 307, 311 (1985); People v. McDonald, 1 N. Y. 3d 109, 113–115, 802 N. E. 2d 131, 134–135 (2003); see also Alguno v. State, 892 So. 2d 1200, 1201 (Fla. App. 2005) (per curiam); State v. Rojas-Martinez, 2005 UT 86 ¶¶ 15–20, 125 P. 3d 930, 933–935; In re Yim, 139 Wash. 2d 581, 588, 989 P. 2d 512, 516 (1999).
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SOTOMAYOR, J., dissenting
about deportation consequences); see also Downs-Morgan, 765 F. 2d, at 1541 (“[D]eportation and exclusion [are] harsh consequences”).
The majority believes that these decisions did not meaningfully alter the state of the law in the lower courts before Padilla, because they merely applied the age-oldprinciple that a lawyer may not affirmatively mislead aclient. Ante, at 12–13. But, as explained, the reasoning ofthese cases renders that characterization at best incomplete. See, e.g., Kwan, 407 F. 3d, at 1016. While these lower court precedents are consistent with the generalprinciple that attorneys should not mislead clients byproviding incorrect advice, they did not rest primarily onthat rule. Rather, they recognized the significant changes in professional norms that predated Padilla and that we had noted in St. Cyr. As a consequence, the “wall betweendirect and collateral consequences” that the lower courtshad erected, ante, at 9, had already been dealt a seriousblow by the time the Court decided Padilla.
As the majority points out, these misrepresentationcases stopped short of imposing an affirmative obligation on lawyers to consult with clients about the consequencesof deportation. Ante, at 12–13. But the majority placestoo much emphasis on the absence of lower court authorityfinding that an attorney's omissions with respect to deportation resulted in ineffective assistance. The distinction between omissions and affirmative misrepresentations onwhich these lower court cases depended cannot be reconciled with Strickland. In Padilla itself, we rejected the Solicitor General's suggestion that Strickland should apply to advice about the immigration consequences of a plea only in cases where defense counsel makes an affirmative misstatement. Padilla, 559 U. S., at ___ (slip op., at 12). We did so because we found that Strickland was incompatible with the distinction between an obligation to give advice and a prohibition on affirmative misstate11
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SOTOMAYOR, J., dissenting
ments. 559 U. S., at ___ (slip op., at 12–13) (citing Strickland, 466 U. S., at 690). Strickland made clear that its standard of attorney performance applied to both “acts”and “omissions,” and that a rule limiting the performanceinquiry to one or the other was too narrow. 466 U. S., at 690. Thus, the distinction between misrepresentationsand omissions, on which the majority relies in classifyinglower court precedent, implies a categorical rule that is inconsistent with Strickland's requirement of a case-bycase assessment of an attorney's performance.7 Id., at 688–689; see, e.g., Roe v. Flores-Ortega, 528 U. S. 470, 479 (2000). In short, that some courts have differentiated between misleading by silence and affirmative misrep- resentation hardly establishes the rationality of the distinction. Notably, the Court offers no reasoned basis forbelieving that such a distinction can be extracted from Strickland.
To be sure, lower courts did continue to apply the distinction between collateral and direct consequences after St. Cyr. See ante, at 13–14; see, e.g., Broomes v. Ashcroft, 358 F. 3d 1251, 1256–1257 (CA10 2004). Even so, and even assuming the misrepresentation cases did not callthe distinction into question, the existence of these lower court decisions is not dispositive. “[T]he standard for determining when a case establishes a new rule is ‘objective,' and the mere existence of conflicting authority does ——————
7The majority cites a law review article for the proposition that the categorical consequences rule is “one of ‘the most widely recognized rules of American law.' ” Ante, at 8 (quoting Chin & Holmes, EffectiveAssistance of Counsel and the Consequences of Guilty Pleas, 87 Cornell
L. Rev. 697, 706 (2002)). But the article was, in fact, quite critical of the rule. The authors explained that “[t]he real work of the conviction is performed by the collateral consequences,” and that the direct/collateral distinction in the context of ineffective-assistance claims was “surprising because it seems inconsistent with the framework that the Supreme Court . . . laid out” in Strickland. Chin & Holmes, at 700–701.
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not necessarily mean a rule is new.” Wright, 505 U. S., at 304 (O'Connor, J., concurring in judgment) (citing Stringer
v. Black, 503 U. S. 222, 237 (1992)); see Graham v. Collins, 506 U. S. 461, 506 (1993) (Souter, J., dissenting).
Where the application of Strickland was straightforward, rooted in 15 years of professional standards and the Court's prior St. Cyr decision, there is no reason to put these lower court cases, many from more than a decade earlier, ahead of this Court's simple and clear reasoning in Padilla. Nevertheless, the majority reaches the paradoxical conclusion that by declining to apply a collateralconsequence doctrine the Court had never adopted, Padilla announced a new rule.
III What truly appears to drive the majority's analysis is itssense that Padilla occasioned a serious disruption in lower court decisional reasoning. See, e.g., ante, at 9–10 (“If that does not count as ‘break[ing] new ground' . . . we are hard pressed to know what would” (quoting Teague, 489 U. S., at 301)). The concurring and dissenting opinions in Padilla similarly reflected the impression that it was a significant and destabilizing decision. See 559 U. S., at ___ (ALITO, J., concurring in judgment) (slip op., at 3); id., at ___ (SCALIA, J., dissenting) (slip op., at 5) (describing the majority opinion as a “sledge hammer”); ante, at 8–9, n.
10. But the fact that a decision was perceived as momentous or consequential, particularly by those who disagreedwith it, does not control in the Teague analysis. Faithfullyapplying the Teague rule depends instead on an examination of this Court's reasoning and an objective assessmentof the precedent at issue. Stringer, 503 U. S., at 237. In Padilla, we did nothing more than apply Strickland. Byholding to the contrary, today's decision deprives defendants of the fundamental protection of Strickland, which requires that lawyers comply with professional norms
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with respect to any advice they provide to clients.
* * * Accordingly, I would reverse the judgment of the Seventh Circuit and hold that Padilla applies retroactively oncollateral review to convictions that became final before its announcement. With respect, I dissent.
16-03-2013 15:52
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