When I read Padilla v. Kentucky, I didn’t give much thought to the question, but after hearing considerable debate among smart lawyers of whether the rule in that case (that counsel is ineffective for not telling the defendant about clear immigration consequences before a guilty plea) is retroactive, I took a closer look at the retroactivity of Padilla.
There are two different retroactivity questions that the courts will face. First, does the rule apply to a conviction that was final (all direct appeals exhausted or expired) before Padilla was handed down (March 31, 2010); and second, can someone who has already filed one writ of habeas corpus use Padilla as grounds for filing a second, successive, or out-of-time writ of habeas corpus?
Let’s call the first type of retroactivity “first-writ” retroactivity, and the second type “successive-writ” retroactivity.
The test for successive-writ retroactivity comes from the AEDPA (or from state law). 28 USC § 2255 contains the limitations on successive and out-of-time federal writs:
A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of—
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review. . . .
A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain—
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.
The test for first-writ retroactivity comes from Teague v. Lane. Teague stands, in the minds of most lawyers discussing Padilla, for the proposition that, where the Supreme Court creates a new procedural rule, that new rule will not be applied on collateral review unless it is a “watershed rule” implicating the fundamental fairness and accuracy of the criminal proceeding (Saffle v. Parks). So, lawyers arguing about the first-writ retroactivity of Padilla say, whether the procedural rule in Padilla is first-writ retroactive depends on a) whether the rule is a new rule or an application of an old rule; and b) if it is a new rule, whether it is a watershed rule. The rule is first-writ retroactive if it is either an old rule or a watershed new rule. This is accurate.
- If the rule in Padilla’s case is a new one but neither a watershed rule nor made retroactively applicable, it is neither first-writ retroactive nor successive-writ retroactive.
- If the rule in Padilla’s case is a new rule explicitly made retroactive by the Supreme Court, but is not a new watershed rule, it is successive-writ retroactive but not first-writ retroactive.
- If the rule in Padilla’s case is a new watershed rule, but is not explicitly made retroactive by the Supreme Court, it is first-writ retroactive but not successive-writ retroactive. (This, and the previous scenario, may be logically impossible; “not a watershed rule” and “not explicitly made retroactive” may be mutually exclusive. I’ll leave the heavy thinking on that one to someone else.)
- If the rule in Padilla’s case is not a new rule, it is first-writ retroactive but not successive-writ retroactive.
It didn’t make sense to me that the Padilla rule would be retroactive as to Mr. Padilla, but not as to anyone else. This is in contrast to the creation of a new rule in a direct-appeal case (like Batson v. Kentucky) in which the rule does not have to be retroactively applied for the defendant to win. So I went looking for a case—any case—in which the Supreme Court had announced a new non-retroactive rule in a collateral-attack (not direct-appeal) case. And I found nothing. How odd, I thought, that this situation has never come up before.
Then I read Teague v. Lane more closely.
The test for the retroactivity of a new rule is part of the holding in Teague. But procedure, as Professor Ragazzo says, is everything. What the Supreme Court did in Teague is, for our purposes, more important than what it said.
In the relevant portion of Teague (parts IV and V, in which only four justices—O’Connor, Rehnquist, Scalia, and Kennedy—joined), Mr. Teague argued that “the Sixth Amendment’s fair cross section requirement applies to the petit jury.” The Court declined to address that contention; it found that the rule that Mr. Teague proposed would not be first-writ retroactive, and so it didn’t reach the question of whether the proposed rule was correct: “Because we hold that the rule urged by petitioner should not be applied retroactively to cases on collateral review, we decline to address petitioner’s contention.” (Justices Stevens and Blackmun concurred in the result but would have found a right and denied relief anyway, so a majority of justices would have denied Mr. Teague relief, whether or not his contention was correct, because the rule was not retroactive.)
Lawyers point to Parts IV and V of the Teague opinion to support the proposition that a new procedural rule is not first-writ retroactive unless it is a watershed rule, and some courts have held, based on that reading of Teague, that the Padilla rule is a new rule, not a watershed rule, and therefore not retroactive. But the point of Parts IV and V of the Teague opinion was not that Mr. Teague could not benefit retroactively from some new rule from another case. It was, rather, that the Court would not create a new rule in Mr. Teague’s case that would not be retroactive in other cases:
Were we to recognize the new rule urged by petitioner in this case, we would have to give petitioner the benefit of that new rule even though it would not [because it would not be a watershed rule] be applied retroactively to others similarly situated. In the words of JUSTICE BRENNAN, such an inequitable result would be an “unavoidable consequence of the necessity that constitutional adjudications not stand as mere dictum. But the harm caused by the failure to treat similarly situated defendants alike cannot be exaggerated…. . . .
We can simply refuse to announce a new rule in a given case unless the rule would be applied retroactively to the defendant in the case and to all others similarly situated.… We think this approach is a sound one.… We therefore hold that, implicit in the retroactivity approach we adopt today, is the principle that habeas corpus cannot be used as a vehicle to create new constitutional rules of criminal procedure unless those rules would be applied retroactively to all defendants on collateral review through one of the two exceptions we have articulated. Because a decision extending the fair cross section requirement to the petit jury would not be applied retroactively to cases on collateral review under the approach we adopt today, we do not address petitioner’s claim.
In Padilla, if Kentucky or any of the amici who filed briefs in support of affirmance had thought that Mr. Padilla was proposing a new rule, they could have invoked Parts IV and V of Teague, and if the Supreme Court agreed with them that the rule was not first-writ retroactive the Court either would not have considered the rule (the Teague plurality approach) or held that the rule was a rule but denied Mr. Padilla relief (the Teague Stevens/Blackmun approach).
But nobody in Padilla briefed retroactivity and the Court, which could have raised it sua sponte (as it did in Teague), and which took the position in Teague that the question of retroactivity should be faced when a new rule was announced, didn’t even mention retroactivity in Padilla; nor did the dissent. Why not? Because, as far as the Court (including the dissenters and, dare I say, even the parties to that case) was concerned, as an application of an old procedural rule, the Padilla rule is first-writ retroactive. Those trying to raise it in sucessive writs, however, are out of luck. They should, like Mr. Padilla, have raised it on the first go ’round. The Padilla rule is not a new rule.