Question Presented (from cert petition):
In Padilla v. Kentucky, 130 S. Ct. 1473 (2010), this Court held that criminal defendants receive ineffective assistance of counsel under the Sixth Amendment when their attorneys fail to advise them that pleading guilty to an offense will subject them to deportation. The question presented is whether Padilla applies to persons whose convictions became final before its announcement.
Lower court decision (655 F.3d 684 (7th Cir. 2011)); On Point post
First takes: Lyle Denniston; crImmigration; Kent Scheidegger; Michael O’Hear.
Continuing fall-out from Padilla: is its holding retroactive? Scheidegger, stressing that this is a federal prosecution (hence not not involving 2254 collateral review), says Padilla is clearly non-retroactive, “if the Court is faithful to its precedents,” namely Teague v. Lane. This seems much too facile – see, e.g., United States v. Orocio, 645 F.3d 630, 641 (3rd Cir. 2011) (Padilla is “an ‘old rule’ for Teague purposes and is retroactively applicable on collateral review”); and the crImmigration post, which collects several state court holdings in favor of retroactivity. The issue, then, surely isn’t as clear-cut as Scheidegger assumes.
As the prior On Point post indicates, though § 971.08(1)(c) ensures that Padilla likely will have little if any impact in the narrow sense of obligation to provide deportation advice, the implications for ineffective-assistance review have yet to be fully explored. Presently, counsel’s performance is tested by whether “the law or duty is clear such that reasonable counsel should know enough to raise the issue,” State v. McMahon, 186 Wis. 2d 68, 85, 519 N.W.2d 621 (Ct. App. 1994). Although that articulation seems benign, its application has been increasingly fussy; at times, it seems, unless there is very specific on-point authority, counsel simply has no duty to extract and apply a principle even to a modestly different context. E.g., State v. Jackson, 2011 WI App 63, ¶19 (“We acknowledge that a reasonable attorney could have objected to the lesser included instruction given here, based on Carrington I. But, since the case can be reasonably limited to its specific fact situation, the trial attorney’s failure to object was not deficient performance. See McMahon, 186 Wis. 2d at 84. Because of that, Jackson’s ineffective assistance of counsel claim on this issue fails….”). Is such a crimped view of deficient performance consistent with Padilla? Take away the § 971.08(1)(c) obligation, and it is quite easy to imagine a Wisconsin court saying that, because counsel wasn’t under some concrete, already-established obligation in this area, his failure to give deportation advice couldn’t have been deficient as a matter of law. This sort of construct – failure to argue an “unsettled” or “unclear” point can’t be deficient – may be, as with the collateral/direct-consequences distinction, if not quite swept away, at least applied less dogmatically.
The cert petition (p. 25) implicitly addresses this problem:
To be sure, the Padilla dissent, like some prior lower court decisions, sought to impose a new limitation on Strickland’s professional norms doctrine, limiting it to advice concerning direct consequences of pleas. See 130 S. Ct. at 1495 (Scalia, J., dissenting). But this Court rejected that argument, using language emphasizing that it was the dissent – not the majority – that was seeking to make new law. This Court explained that it had “never applied a distinction between direct and collateral consequences to define the scope of constitutionally ‘reasonable professional assistance’ required under Strickland,” id. at 1481 (citation omitted), and it saw no good reason to do so in the context of the failure to warn of deportation consequences.
Put otherwise, mere absence of a pronouncement on the distinction between direct-collateral consequences didn’t preclude IAC analysis in Padilla. To the extent this cert grant reinforces that idea, the limiting principle currently at work in Wisconsin IAC review may be reined in. Michael O’Hear has a more nuanced view: “In practice, adopting a more relaxed approach to Teague would likely only benefit a very small number of defendants, most or all of whom would be individuals (like Chaidez herself) challenging federal convictions–convictions whose finality does not implicate the federalism considerations that seem to have animated Teague.”
The McMahon standard conflicts with the controlling Strickland standard for ineffective assistance of counsel and its continued application opens up a number of Wisconsin convictions to federal habeas review without the deference otherwise required under the Antiterrorism and Effective Death Penalty Act.
Strickland asks whether counsel’s failure to make a particular objection or give certain advice was unreasonable. If yes, the deficient performance prong is satisfied. McMahon, however, asks a substantially difference question: whether counsel failed to do something he or she was required to do.
Under Strickland, counsel’s performance is deficient if he or she fails to object when the attorney knows or should know that the evidence is reasonably subject to challenge, even if the particular challenge has not yet been adopted by the courts (or even if the challenge is contrary to existing court interpretations). Under McMahon, deficiency exists only where the objection is a slam dunk.
In other words, under the controlling standard in Strickland, basic reasonableness controls when the legal basis for objection or advice is less than clear. See my amicus brief in State v. Domke, 805 N.W.2d 364, 2011 WI 95 : Domke Amicus Brief