In thе Matter of the Personal Restraint of YUNG-CHENG TSAI, Petitioner. In the Matter of the Personal Restraint of MUHAMMADOU JAGANA, Petitioner.
No. 88770-5 (consolidated with No. 89992-4)
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
MAY 07 2015
YU, J.
EN BANC
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YU, J.—As applied to Washington, the holding in Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010) is an affirmation of an old rule of state constitutional law—the duty to provide effective assistance of counsel includes the duty to reasonably research and apply relevant statutes. However, language in certain Washington appellate cases made it appear that this well-established rule did not apply to
Muhammadou Jagana raises a claim that would have been rejected before Padilla based on those superseded appellate cases. We therefore reverse the Court of Appeals’ order dismissing Jagana‘s personal restraint petition (PRP) and remand to the trial court for an evidentiary hearing. However, Yung-Cheng Tsai‘s claim was available before Padilla
FACTUAL AND PROCEDURAL HISTORY
A. Yung-Cheng Tsai
On July 27, 2006, Tsai pleaded guilty to one count of unlawful possession of a controlled substance with intent to deliver (marijuana). On August 29, 2006, the trial court sentenced him to 11 months in jail and 12 months of community custody. Tsai did not appeal. On or about October 30, 2007, Tsai received a notice to appear from the United States Immigration and Naturalization Services, which informed him that he was subject to removal (also known as deportation) based on his conviction.
On July 21, 2008, Tsai filed a motion to withdraw his guilty plea under
On May 18, 2011, Tsai again moved to withdraw his guilty plea under
The trial court initially denied Tsai‘s 2011 motion, holding it was time barred. On Tsai‘s motion, thе trial court vacated its holding and transferred the motion to the Court of Appeals to be considered as a PRP. The Court of Appeals denied Tsai‘s PRP as time barred, holding that Padilla and Sandoval
B. Muhammadou Jagana
On June 7, 2006, Jagana pleaded guilty to one count of possession of a controlled substance (cocaine). He was sentenced to three months of electronic home monitoring. Jagana did not appeal.
On November 4, 2010, Jagana moved to withdraw his guilty plea under
The Court of Appeals initially filed a published opinion holding Jagana‘s PRP was timely under
The State sought discretiоnary review, and we remanded to the Court of Appeals for reconsideration in light of Chaidez v. United States, 568 U.S. 342, 133 S. Ct. 1103, 1107, 185 L. Ed. 2d 149 (2013), which held Padilla did announce a new rule that does not apply retroactively to matters on collateral review. In re Pers. Restraint of Jagana, 177 Wn.2d 1027, 309 P.3d 1186 (2013). On reconsideration, the Court of Appeals withdrew its opinion and dismissed Jagana‘s PRP as time barred. We granted Jagana‘s motion for discretionary review and consolidated his case with Tsai‘s. In re Pers. Restraint of Jagana, 180 Wn.2d 1014, 327 P.3d 55 (2014).
ISSUES
A. Are the PRPs exempt from the one-year time bar in
B. If the PRPs are not time barred, are the petitioners entitled to relief or evidentiary hearings on the merits of their claims?
ANALYSIS
A. As applied to Washington, Padilla did not announce a new rule, but it did effeсt a significant change in the law under RCW 10.73.100(6)
1. The unreasonable failure to give any advice about the immigration consequences of a guilty plea was already deficient performance in Washington under the ordinary Strickland test
A criminal defendant‘s right to the assistance of counsel derives from the
When determining whether a defense attorney provided effective assistance, the underlying test is always one of “reasonableness under prevailing professional norms.” Id. at 688. While simple to state in theory, this test can be complicated to apply in practice. The court must engage in a fact-specifiс inquiry into
a duty of loyalty, a duty to avoid conflicts of interest[,] ... the overarching duty to advocate the defendant‘s cause and the more particular duties to consult with the defendant on important decisions and to keep the defendant informed of important developments in the course of the prosecution. Counsel also has a duty to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process.
It is against this backdrop that we consider whether Padilla applies retroactively under
In Chaidez, the Supreme Court held that Padilla did not merely apply the ordinary test for ineffective assistance of counsel; it first considered the threshold question of whether defense counsel has any constitutional duty to advise noncitizen defendants about the immigration consequences of pleading guilty. Id. at 1108. The notion that defense counsel has no such duty arose from a distinction many courts have drawn between direct and collateral consequences. Padilla, 559 U.S. at 365 & n.9. Immigration consequences were usually considered collateral and thus outside the scope of defense counsel‘s constitutional duty to advise. Id. at 364-65. Padilla did not fully reject the direct-versus-collateral distinction but held it was not appropriate as applied to immigration consequences. Id. at 366.
This court first explicitly adopted the distinction between direct and collateral consequences in a 1980 case holding that habitual criminal proceedings were collateral consequences. State v. Barton, 93 Wn.2d 301, 305, 609 P.2d 1353 (1980). Within three years of Barton, our legislature did what Padilla ultimately did in 2010—it rejected the direct-versus-collateral distinction as applied to immigration consequences, declaring that a noncitizen defendant must be warned about immigration consequences before pleading guilty.1 LAWS OF 1983, ch. 199 § 1(1), codified at
Where an attorney unreasonably fails to research or apply relevant statutes without any tactical purpose, that attorney‘s performance is constitutionally deficient. See, e.g., id. at 865-69 (deficient performance where reasonably adequate research would have shown that a former pattern jury instruction misstated the law on self-defense); State v. Aho, 137 Wn.2d 736, 745-46, 975 P.2d 512 (1999) (deficient performance where reasonably adequate research would have prevented the possibility of conviction based on acts predating the relevant statute‘s effective date). Cf. State v. Paredez, 2004-NMSC-036, 136 N.M. 533, 101 P.3d 799, 805 (holding that the failure to advise a noncitizen defendant about immigration consequences as required by N.M. CODE R. 5-303(E)(5) could be ineffective assistance); RPC 1.1 cmt. 2 (“Perhaps the most fundamental legal skill consists of determining what kind of legal problems a situation may involve, a skill that necessarily transcends any particular specialized knowledge.“). Indeed, “[a]n attorney‘s ignorance of a point of law that is fundamental to his case combined with his failure to perform basic research on that point is a quintessential еxample of unreasonable performance under Strickland.” Hinton v. Alabama, 571 U.S. 263, 134 S. Ct. 1081, 1089, 188 L. Ed. 2d 1 (2014). The unreasonable failure to research and apply
This resolves Padilla‘s threshold question as applied to Washington law. Padilla thus becomes a “garden-variety application[ ] of the test in Strickland” that simply refines the scope of defense counsel‘s constitutional duties as applied to a specific fact pattern. Chaidez, 133 S. Ct. at 1107. Because Padilla did not announce a new rule under Washington law, it applies retroactively to matters on collateral review under Teague.
2. Padilla effected a significant change in Washington law
Whether a changed legal standard applies retroactively is a distinct inquiry from whether there has been a significant change in the law. An old rule whose new application significantly changes the law is unusual, but not impossible, as this case demonstrates. Padilla‘s application of the old Strickland test significantly changed state law by superseding Washington appellate cases that apparently foreclosed the possibility that defense counsel‘s unreasonable and prejudicial failure to fulfill his or her duties under
(a) A “new” rule under Teague is not always the same as a “significant change” in the law under RCW 10.73.100(6)
There is unquestionably a substantial overlap between “new” Teague rules and “significant changes” in state law, but they are two separate inquiries: ”
In fact, we have always defined the two phrases differently. A significant change in state law occurs “where an intervening opinion has effectively overturned a prior appellate decision that was originally determinative of a material issue.” In re Pers. Restraint of Greening, 141 Wn.2d 687, 697, 9 P.3d 206 (2000). By comparison, new rules for Teague purposes “are those that ‘break[] new ground or impose[] a new obligation on the States or the Federal government [or] if the result was not dictated by precedent existing at the time the defendant‘s conviction became final.‘” State v. Evans, 154 Wn.2d 438, 444, 114 P.3d 627 (2005) (alterations in original) (quoting Teague, 489 U.S. at 301). “If before the opinion is announced, reasonable jurists could disagree on the rule of law, the opinion is new.” Id. (citing Beard v. Banks, 542 U.S. 406, 411, 124 S. Ct. 2504, 159 L. Ed. 2d 494 (2004)).
Using different definitions for a “significant change” in state law and a “new” rule under Teague is not only fully supported by the plain language of
A “significant change” in state law and a “new” constitutional rule of criminal procedure are different phrases with different meanings that serve different purposes. We will not conflate them. Gentry, 179 Wn.2d at 625; cf. Commonwealth v. Sylvain, 466 Mass. 422, 433-34, 995 N.E.2d 760 (2013) (retaining the general Teague framework but declining to adopt the expanded definition of a “new” rule that was аrticulated after Teague).
(b) Padilla significantly changed Washington law
It is true that in most cases simply applying the ordinary Strickland test to new facts will announce neither new rules nor significant changes in the law. See In re Pers. Restraint of Turay, 150 Wn.2d 71, 83, 74 P.3d 1194 (2003) (Where an opinion “simply applies settled law to new facts, it does not constitute a significant change in the law.“). However, Washington appellate cases issued before Padilla apparently foreclosed any possibility that the unreasonable, prejudicial failure to provide the advice required by
The first appellate case to explicitly consider whether
The only decision of this court that touches on the issue presented here is In re Personal Restraint of Yim, 139 Wn.2d 581, 588, 989 P.2d 512 (1999). However, Yim dealt with a claim that the defendant received incorrect advice, rather than no advice, regarding immigration consequences. Id. Padilla is not limited to incorrect advice; it explicitly holds that providing no advice regarding immigration consequences is also deficient. Padilla, 559 U.S. at 370. Further, Yim discussed only the voluntariness of the defendant‘s plea without reference to the standard for determining ineffective assistance of counsel, and Yim did not consider
Nevertheless, Washington appellate courts have routinely rejected the possibility that such a failure could ever be ineffective assistance of counsel. Each of those decisions relies on cases analyzing guilty pleas entered before the effective date of
B. Jagana is entitled to an evidentiary hearing on the merits
A significant, material, retroactive change in the law exempts a PRP from
Jagana alleges that his trial attorney unreasonably failed to ascertain Jagana‘s immigration status and did not provide him with any guidance as to any possible immigration consequences of his guilty plea, and further alleges that these failures rendered Jagana‘s plea involuntary. These allegations, if true, would establish that Jagana did not receive effective assistance of counsel in deciding whether to plead guilty. As discussed above, Washington courts would have rejected Jagana‘s claim before Padilla was issued. Jagana‘s failure to raise this apparently unavailable argument cannot render his PRP procedurally barred. Greening, 141 Wn.2d at 697. He is entitled to an evidentiary hearing.
However, Washington courts have long recognized that where a defendant relies on his or her attorney‘s incorrect advice about the immigration consequences of pleading guilty, the defendant‘s plea may be rendered involuntary and withdrawn. Yim, 139 Wn.2d at 588. With the assistance of an attorney, Tsai filed a motion to withdraw his guilty plea in 2008, alleging his guilty plea was involuntary because his attorney incorrectly advised him about
CONCLUSION
This case is not a faceless one that bears no consequences. Numerous noncitizen defendants have benefited from the clear statutory requirement that defense counsel has a duty to advise them about the immigration consequences of pleading guilty. However, numerous meritorious claims that defense counsel unreasonably failed to fulfill this duty have been rejected based on the mistaken belief that
YU, J.
WE CONCUR:
MADSEN, C.J.
STEPHENS, J.
GONZALEZ, J.
GORDON MCCLOUD, J.
WIGGINS, J.
OWENS, J. (dissenting) — In 1992, we adopted the United States Supreme Court‘s method for determining when a constitutional rule that arises out of new case law may apply retroactively. In re Pers. Restraint of St. Pierre, 118 Wn.2d 321, 326-27, 823 P.2d 492 (1992). The Court‘s method comes from Teague v. Lane, 489 U.S. 288, 310, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989), and undеr that method only settled constitutional rules apply retroactively. New constitutional rules of criminal procedure do not apply retroactively. Id. In this case, both Tsai and Jagana ask that we apply a constitutional rule that arose out of new case law—Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010)—retroactively to them.
In Padilla, the United States Supreme Court held that if a defendant‘s attorney fails to advise the defendant of the immigration consequences of pleading guilty, it violates the defendant‘s right to the effective assistance of counsel under the
As I explain below, our case law shows that prior to Padilla, Washington courts had held that if an attorney failed to advise his or her client of the immigration consequences of pleading guilty, it was not a violation of the defendant‘s
The majority avoids this result by distorting the historical scope of Washington constitutional law regarding ineffective assistance of counsel. The majority relies on a Washington statute—
It is understandable why the majority wants to avoid this difficult result, but it is compelled by our precedent adopting the Teague analysis. Unless and until we overturn our adoption of the Teague analysis, we are bound by it. Padilla represented a new constitutional rule of criminal procedure in Washington. Thus, it cannot be applied retroactively to the petitioners under Teague. I respectfully dissent.
1. Under Teague, New Constitutional Rules of Criminal Procedure Do Not Apply Retroactively
Under Teague, “[u]nless they fall within an exception to the general rule, new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced.” 489 U.S. at 310. “Only when we apply a settled rule may a person avail herself of the decision on сollateral review.” Chaidez, 133 S. Ct. at 1107. A rule is new “‘when it breaks new ground or imposes a new obligation’ on the government.” Id. (quoting Teague, 489 U.S. at 301). Put 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.” Teague, 489 U.S. at 301.
2. As the United States Supreme Court Has Held, Padilla Was a New Rule in Jurisdictions (Like Washington) That Previously Held That Advice about Immigration Consequences Was Categorically Removed from the Scope of the Sixth Amendment
Prior to Padilla, both federal courts and our courts had concluded that an attorney‘s advice about the immigration consequences of pleading guilty was categorically removed from the scope of the
In Chaidez, Chaidez pleaded guilty to deportable offenses, but her attorney failed to advise her of the immigration consequences of pleading guilty. Id. at 1106. Her conviction became final in 2004. Id. In 2009, after immigration proceedings commenced against her, she filed a writ of coram nobis1 in federal district court, arguing ineffective assistance of counsel under the
In finding that Padilla created a new rule (and thus that it could not be applied retroactively), the Court‘s analysis hinged on the distinction between defense counsel‘s duty to inform clients about deportation consequences as a matter of professional competence and defense counsel‘s requirements under
As discussed above, Washington courts, like the federal courts and many other state courts prior to Padilla, “concluded that the
3. The Majority Fundamentally Errs by Conflating Statutory and Constitutional Authority
As discussed above, Washington has long required trial courts and attorneys to inform defendants of the immigration consequences of pleading guilty as a matter of practice and professional competence pursuant to a statute. However, we never required that practice under the
In 1983, our legislature passed a bill requiring that defendants be advised of immigration consequences before pleading guilty. LAWS OF 1983, ch. 199, § 1(2) (currently codified as
The majority fundamentally errs by asserting that in 1983, “our legislature did what Padilla ultimately did in 2010—it rejected
Despite the existence of
It should be evident from the majority‘s own citations that it has no authority to support its holding. The only pre-Padilla case the majority cites that actually held that it was ineffective assistance of counsel for an attorney to fail to advise his or her client of the immigration consequences of pleading guilty is from New Mexico. Paredez, 136 N.M. 533. As noted above, that is one of the two states the United States Supreme Court discussed in Chaidez that did not consider deportаtion to be a collateral consequence. 133 S. Ct. at 1109 & n.9.
Thus, I would conclude that Padilla created a new rule in Washington, and I would therefore hold that the rule imposed by Padilla is not retroactive under Teague. Accordingly, I would find the petitioners’ personal restraint petitions time barred.
CONCLUSION
I recognize that “[t]his case is not a faceless one that bears no consequences.” Majority at 17.
OWENS, J.
Fairhurst, J.
Madsen, C.J.