Miller v. State

MOYLAN, J. When an appellate court applies a legal principle in a new way, the retroactivity of such an application almost invariably depends on whether the new application represents simply the ⁶⁶⁰ decanting of old wine in new bottles or the uncorking of a new wine. The Supreme Court announced its decision in Padilla v. Kentucky, 559 U.S. _ , 130 S.Ct. 1473 , 176 L.Ed.2d 284 on March 31, 2010. The holding was that if a defense attorney fails to advise a non-citizen client about deportation as a possible consequence of a guilty plea, such failure could represent ineffective assistance of counsel and could invalidate the guilty plea. The taste test now before us asks us to assess the vintage of that holding.

Will it or will it not date back to invalidate a guilty plea entered on June 1,1999? The Guilty Plea In the Circuit Court for Prince George’s County on June 1, 1999, the appellant, Lincoln Miller, tendered a plea of guilty to the charge of possessing 448 grams of cocaine with the intent to distribute. At no time during the offering of the plea was the appellant advised on the record by the court or by counsel about any possibly adverse immigration consequences that might result from that plea. Accepting the plea, which was otherwise voluntary and knowledgeable in every respect, Judge Richard H. Sothoron, Jr. sentenced the appellant to five years of imprisonment without the possibility of parole.

The appellant did not appeal that sentence, which the appellant finished serving on June 1, 2004. Subsequent Events Following his release from prison in Maryland, the appellant, who is now 58 years of age, returned to New York State and resumed residence with his wife of 24 years. The appellant is a native of Belize. He had been accorded Lawful Permanent Resident status in the United States in 1981.

For all intents and purposes, the appellant’s travails in Maryland were ancient history when, in the spring of 2008, he paid a visit to his native Belize. Upon his return to the United States on May 27, 2008, however, he was detained by Immigration and Customs Enforcement agents at the Miami International Airport. On September 29, 2008, deportation proceedings against him were begun, based on the 1999 conviction ⁶⁶¹ in Prince George’s County. The removal proceedings are being held in abeyance, pending the resolution of this appeal.

Coram Nobis On June 18, 2009, the appellant filed a Petition for a Writ of Error Coram Nobis in the Circuit Court for Prince George’s County. He alleged that “his guilty plea had not been tendered knowingly, voluntarily, and intelligently, in light of the facts that: (1) he was not advised of the immigration consequences attendant to his plea, and (2) he was not advised, prior to acceptance of his plea, that by pleading guilty he was foregoing his right to direct appeal, and was thus limited to filing an application for leave to appeal, on four limited grounds.” On August 21, 2009, a hearing was held on the coram nobis petition before Judge Maureen Lamasney. The appellant was the only witness to testify. On October 5, 2009, Judge Lamas-ney filed an Opinion and Order denying the coram nobis petition.

The critical part of Judge Lamasney’s opinion reads as follows: It is clear from the record that the Plea Court did not inform the petitioner of either possible immigration consequences or the right to a direct automatic appeal to the Court of Special Appeals if convicted after a trial. However, “consequences of the plea” has been interpreted to mean “direct” consequences. A consequence is considered direct only if “the result represents a definite, immediate and largely automatic effect on the range of the defendant’s punishment”, Cuthrell v. Director of Patuxent 475 F.2d 1364 (4th Cir.1973). (Emphasis supplied).

Padilla v. Kentucky The appellant now appeals from that denial, claiming that Padilla v. Kentucky has, nunc pro tunc, rendered Judge Lamasney’s rationale untenable. Judge Lamasney’s decision was based upon the well-settled Maryland (and, indeed, national) law that a guilty plea may not be attacked on the ⁶⁶² ground that the defendant had not been advised with respect to the collateral consequences (as opposed to direct consequences) of the conviction to which he was pleading guilty. Cuthrell v. Director of Patuxent, 475 F.2d 1364 (1973), the decision of the United States Court of Appeals for the Fourth Circuit on which Judge Lamasney relied, well reflected the prevailing national law. The law is clear that a valid plea of guilty requires that the defendant be made aware of all “the direct consequences of his plea.” By the same token, it is equally well settled that, before pleading, the defendant need not be advised of all collateral consequences of his plea, or, as one Court has phrased it, of all “possible ancillary or consequential results which are peculiar to the individual and which may flow from a conviction of a plea of guilty.” 475 F.2d at 1365-66 (emphasis supplied).

There is no question but that deportation is a collateral consequence of a conviction. The appellant is correct that automatically rejecting a defendant’s claim on the basis of the collateral consequence— direct consequence distinction is no longer proper. In that regard, the Supreme Court majority opinion was clear. The collateral [consequence] versus direct [consequence] distinction is ... ill-suited to evaluating a Strickland claim concerning the specific risk of deportation.

We conclude that advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel. Strickland applies to Padilla’s claim. _ U.S. at _, 130 S.Ct. at 1482 , 176 L.Ed.2d at 294 (emphasis supplied). 1 ⁶⁶³ The dispositive question for us, however, is whether that Supreme Court decision of March 21, 2010, has any applicability to the appellant’s guilty plea of June 1,1999. Retroactivity Versus Prospectivity The most articulate local statement on retroactive versus prospective application of an arguably new legal ruling is that by Judge Harrell (now on the Court of Appeals) for this Court in Warrick v. State, 108 Md.App. 108, 113 , 671 A.2d 51 , cert. denied, 342 Md. 507 , 677 A.2d 583 (1996): The general rule of retroactivity vel non can be stated simply — if the subject case merely applies settled precedents to new facts, the case is given retroactive effect, for the case is viewed as not changing the law in any material way. On the other hand, if the subject case creates a new rule that is a “clear break” with the past, retrospective application is inappropriate.

The Supreme Court has said that a “clear break” exists where the new rule “explicitly overruled a past precedent of this Court, or disapproved a practice this Court had arguably sanctioned in prior cases, or overruled a longstanding practice that lower courts had uniformly approved.” (Emphasis supplied). The limited extent to which even a “new” legal ruling will be given a partially retroactive effect is that even a “new” ruling will apply to all other cases that are not yet final, in the sense that they are still on direct appeal. In Teague v. Lane, 489 U.S. 288, 304-05 , 109 S.Ct. 1060 , 103 L.Ed.2d 334 (1989), Justice O’Connor stated that even “a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final.” In Griffith v. Kentucky, 479 U.S. 314, 322-23 , 107 S.Ct. 708 , 93 L.Ed.2d 649 (1987), Justice Blackmun wrote for the Supreme Court: [A]fter we have decided a new rule in the case selected, the integrity of judicial review requires that we apply that rule ⁶⁶⁴ to all similar cases pending on direct review. Justice Harlan observed: “If we do not resolve all cases before us on direct review in light of our best understanding of governing constitutional principles, it is difficult to see why we should so adjudicate any case at all....

In truth, the Court’s assertion of power to disregard current law in adjudicating cases before us that have not already run the full course of appellate review, is quite simply an assertion that our constitutional function is not one of adjudication but in effect of legislation.” Mackey v. United States, 401 U.S. [667], at 679, 91 S.Ct. 1160, 23 [28] L.Ed.2d 404 [(1971)] (opinion concurring in judgments). As a practical matter, of course, we cannot hear each case pending on direct review and apply the new rule. But we fulfill our judicial responsibility by instructing the lower courts to apply the new rule retroactively to cases not yet final. (Emphasis supplied).

See also Potts v. State, 300 Md. 567, 581 , 479 A.2d 1335 (1984) (“As a general rule, a change in law will be given effect while a case is on direct review.”) (Emphasis supplied). This Case Was Not On Direct Review This variety of quasi-retroactivity would clearly not apply to the appellant’s June 1, 1999 guilty plea. The case was final and beyond any possibility for direct review as of July 1, 1999, the end of the 30-day window -within which an appeal or application for leave to appeal from the June 1, 1999 judgment of guilty might have been filed. 2 When Padilla v. Kentucky was decided, almost eleven years later, the appellant’s case was indisputably not on direct review. ⁶⁶⁵ For cases which are no longer on direct review but only on collateral review, such as this one and such as our recently decided case of State v. Denisyuk, 191 Md.App. 408 , 991 A.2d 1275 , cert. granted, 415 Md. 38 , 997 A.2d 789 (2010), 3 newly announced legal principles would not apply. In Teague v. Lane, 489 U.S. at 310 , 109 S.Ct. 1060 , the Supreme Court was clear: [W]e now adopt Justice Harlan’s view of retroactivity for cases on collateral review.... [N]ew constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced.

(Emphasis supplied). See also Allen v. Hardy, 478 U.S. 255, 257-58 , 106 S.Ct. 2878 , 92 L.Ed.2d 199 (1986) (“We conclude that our decision in Batson [v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986)] should not be applied retroactively on collateral review of convictions that became final before our opinion was announced.”); Solem v. Stumes, 465 U.S. 638, 650 , 104 S.Ct. 1338 , 79 L.Ed.2d 579 (1984) (“At a minimum, nonretroactivity means that a decision is not to be applied in collateral review of final convictions.”). In Teague v. Lane, 489 U.S. at 309-10 , 109 S.Ct. 1060 , Justice O’Connor explained some of the reasons for not giving full retroactive effect to decisions that effectively work a change in the law. Application of constitutional rules not in existence at the time a conviction became final seriously undermines the principle of finality which is essential to the operation of our criminal justice system.... ⁶⁶⁶ The “costs imposed, upon the State[s] by retroactive application of new rules of constitutional law on habeas corpus ... generally far outweigh the benefits of this application.” (Emphasis supplied).

What Is New Law? It was also in Teague v. Lane, 489 U.S. at 301 , 109 S.Ct. 1060 , that the Supreme Court gave us the most manageable statement yet provided as to what constitutes a new application of the law. It is admittedly often difficult to determine when a case announces a new rule, and we do not attempt to define the spectrum of what may or may not constitute a new rule for retroactivity purposes. In general, however, a case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government.

To put it 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. (Emphasis supplied). Padilla v. Kentucky As New Law Applying that definition from Teague v. Lane to the holding of Padilla v. Kentucky, it is clear that the Padilla holding “was not dictated by precedent existing” on June 1, or July 1, 1999, “at the time the [appellant’s] conviction became final.” In Judge Harrell’s words in Warrick v. State, 108 Md.App. at 113 , 671 A.2d 51 , the Padilla v. Kentucky holding “overruled a longstanding practice that lower courts had uniformly approved.” See Griffith v. Kentucky, 479 U.S. at 325 , 107 S.Ct. 708 . What Padilla v. Kentucky ultimately held was by no means foreordained by what had gone before.

For decades, the universally applied law, federal and state, had been that a guilty plea would not be invalidated by the failure of the court or of the defense attorney to advise the defendant about a ⁶⁶⁷ collateral consequence of the plea. 4 Although acknowledging that deportation is a collateral consequence of a conviction, the Supreme Court said only that it had never before relied on such a distinction: We, however, have never applied a distinction between direct and collateral consequences to define the scope of constitutionally “reasonable professional assistance” required under Strickland. _ U.S. at_, 130 S.Ct. at 1481 , 176 L.Ed.2d at 293 . Significantly, the majority opinion never said that it had ever declined to rely on such a distinction. It said simply that it had never ruled on the issue one way or the other and was, therefore, completely free to go either way. That by no ⁶⁶⁸ means implies that the Court’s ultimate decision was one “dictated by precedent.” It was simply not prohibited by its own precedent, and that is a different thing.

The Supreme Court, moreover, never suggested that the caselaw around the country had not overwhelmingly relied on the distinction between direct and collateral consequences. The Supreme Court, indeed, cited no support in the caselaw, federal or state, for its ultimate holding. The Internal Wording of Padilla v. Kentucky At the very outset of the opinion, the Court acknowledged, _ U.S. at_, 130 S.Ct. at 1478 , 176 L.Ed.2d at 290 , that it was responding to a dramatically changing situation: The landscape of federal immigration law has changed dramatically over the last 90 years. (Emphasis supplied).

The opinion then proceeded to chronicle significant changes in immigration law and policy that had occurred in 1917, 1922, 1952, and 1996 and from those changes concluded: These changes to our immigration law have dramatically raised the stakes of a non-citizen’s criminal conviction. _ U.S. at _, 130 S.Ct. at 1480 , 176 L.Ed.2d at 292 (emphasis supplied). The implication was unmistakable that the law providing some relief to non-citizens, far from remaining static, would have to change to meet the changing needs of changing times, to wit, the “dramatic raising of] the stakes.” The Solicitor General, as amicus curiae, had urged that notice be taken only of affirmative misadvice about deportation and not of non-advice. The Supreme Court declined to buy that argument, but did acknowledge, _ U.S. at _, 130 S.Ct. at 1483-84 , 176 L.Ed.2d at 296 , that the Solicitor General’s position “has support among the lower courts,” citing four federal circuits and two state courts. United States v. Couto, 311 F.3d 179, 188 (2d Cir.2002); United States v. Kwan, 407 F.3d 1005 (9th Cir.2005); Sparks v. Sowders, 852 F.2d 882 (6th Cir.1988); United States v. Russell, 686 F.2d 35 (D.C.Cir. 1982); State v. Rojas-Martinez, 125 P.3d 930, 935 (Utah ⁶⁶⁹ 2005); In re Resendiz, 25 Cal.4th 230, 105 Cal.Rptr.2d 431 , 19 P.3d 1171 (2001).

No case was cited opposing that view. The Supreme Court was not following a well-trodden path. Although the Supreme Court cautioned that “we must be especially careful about recognizing new grounds for attacking the validity of guilty pleas,” _ U.S. at_, 130 S.Ct. at 1485 , 176 L.Ed.2d at 298 , it then explained why it felt justified in doing so. The subject matter of that careful balancing, however, was expressly that of “recognizing new grounds for attacking the validity of guilty pleas.” (Emphasis supplied).

The only remote allusion the Supreme Court made to any previous thinking by it about the subject at all, _ U.S. at _, 130 S.Ct. at 1483 , 176 L.Ed.2d at 295 , was: We too have previously recognized that “preserving the client’s right to remain in the United States may be more important to the client than any potential jail sentence.” Immigration and Naturalization Service v. St. Cyr, 533 U.S. 289, 323 , 121 S.Ct. 2268 [2271], 150 L.Ed.2d 347 (2001). Ironically, even if a harbinger of change could be spotted back in INS v. St. Cyr, it would avail the appellant in this case absolutely nothing. That earliest conceivable antecedent rumbling was filed on June 25, 2001. Even as of that first fleeting hint of something “blowin’ in the wind,” the time had already long since lapsed for any direct review of the appellant’s guilty plea of June 1, 1999.

The appellant’s guilty plea had already been final for two years. Another sure-fire tip-off that the Supreme Court was preparing to change the law was its amassing, _ U.S. at_, 130 S.Ct. at 1482 , 176 L.Ed.2d at 294-95 , of “prevailing professional norms [to] support the view that counsel must advise her client regarding the risk of deportation.” The Court cited a host of professional ethical standards and academic authorities. That is a classic argumentative technique when making a case not for recognizing what the law already is but in building persuasive support for what the law, in the Court’s judgment, ought to be. The Supreme Court was ⁶⁷⁰ unquestionably justifying the change it was about to make.

That, by definition, is making new law. That much is clear from within the four corners of the majority opinion itself. 5 ⁶⁷¹ Our search internally for Freudian clues as to what Padilla v. Kentucky thought about itself, however, is very secondary. What ultimately matters is not whether the Supreme Court majority subjectively thought it was changing the law, but whether, as an objectively measured fact, it did change the law. The Supreme Court majority never expressly addressed the subject of change and had no occasion to do so.

It is for us to examine what the law, state and federal, in Maryland and nationwide, was prior to March 31, 2010; to examine what the law became after March 31, 2010; and by that comparison to determine whether the law was, indeed, changed. Justice Alito’s Concurrence The concurring opinion in Padilla v. Kentucky was more introspective than was the majority opinion. Justice Alito filed a concurring opinion that was joined by Chief Justice Roberts. He concurred in the decision that Padilla’s guilty plea must be invalidated on the limited ground that Padilla’s lawyer had affirmatively given him bad and inaccurate advice about deportation.

He did not agree with the majority opinion that the mere lack of any advice would suffice to invalidate a guilty plea. On that position, he was joined by the dissenting opinion of Justice Scalia and Justice Thomas. Justice Alito repeatedly referred to the majority opinion as one that was breaking new ground. The Court tries to justify its dramatic departure from precedent by pointing to the views of various professional organizations....

And we must recognize that such standards may represent only the aspirations of a bar group rather than an empirical assessment of actual practice. _ U.S. at_, 130 S.Ct. at 1488 , 176 L.Ed.2d at 300-01 (emphasis supplied). Justice Alito’s concurrence emphasized the “longstanding and unanimous position of the federal courts” that was diametrically opposed to the new approach being taken by the Padilla majority: Until today, the longstanding and unanimous position of the federal courts was that reasonable defense counsel need ⁶⁷² only advise a client about the direct consequences of a criminal conviction. _ U.S. at _, 130 S.Ct. at 1487 , 176 L.Ed.2d at 300 (emphasis supplied). Justice Alito again made reference to the newness of the Padilla holding. The Court’s new approach is particularly problematic.... _ U.S. at _, 130 S.Ct. at 1488 , 176 L.Ed.2d at 301 (emphasis supplied).

In pointing out that the new position being taken by the majority was not simply out of line with the universally followed precedent but was squarely athwart the well-worn and familiar path, Justice Alito characterized the new approach as “a major upheaval” and “a dramatic expansion.” Justice Alito made challenging reference to the departure from preexisting law, as he pointed out that the majority’s new approach “has been rejected by every Federal Court of Appeals to have considered the issue” and how the majority’s holding “casually dismisses the longstanding and unanimous position of the lower federal courts.” The majority opinion simply treated the then-prevailing law as if it were nonexistent. It made no mention of it. Fourth, the Court’s decision marks a major upheaval in Sixth Amendment law. This Court decided Strickland in 1984, but the majority does not cite a single case, from this or any other federal court, holding that criminal defense counsel’s failure to provide advice concerning the removal consequences of a criminal conviction violates a defendant’s Sixth Amendment right to counsel.

As noted above, the Court’s view has been rejected by every Federal Court of Appeals to have considered the issue thus far. The majority appropriately acknowledges that the lower courts are “now quite experienced with applying Strickland,” but it casually dismisses the longstanding and unanimous position of the lower federal courts with respect to the scope of criminal defense counsel’s duty to advise on collateral consequences. ⁶⁷³ The majority seeks to downplay its dramatic expansion of the scope of criminal defense counsel’s duties under the Sixth Amendment by claiming that this Court in Hill v. Lockhart similarly “applied Strickland to a claim that counsel had failed to advise the client regarding his parole eligibility before he pleaded guilty.” _ U.S. at __, 130 S.Ct. at 1491-92 , 176 L.Ed.2d at 304-05 (emphasis supplied). In no respect did the majority opinion take issue with these characterizations of its holding as a major shift in direction. The Prevailing Federal Law The holding of Padilla v. Kentucky was indisputably a clear break with preexisting federal law.

In the absence of a definitive statement from the Supreme Court on the relationship between the effective assistance of counsel and advice about deportation at a guilty plea, the most persuasive voices on the subject are those of the United States Circuit Courts of Appeal. Nine of the twelve federal circuits had spoken on the subject before the Supreme Court’s decision in Padilla and their verdict was unanimous. 1975, Second Circuit In United States v. Santelises, 509 F.2d 703, 704 (2d Cir. 1975), the Second Circuit held that the mere failure of an attorney to advise a client about deportation does not even state a claim. All that is new is an appended affidavit from Robert Mitchell — his counsel at the plea proceedings — which states that Mitchell did not inform Santelises that he might be subject to deportation. This affidavit, however, is of no legal significance.

Since Mitchell does not aver that he made an affirmative misrepresentation, Santelises fails to state a claim for ineffective assistance of counsel. (Emphasis supplied). 1985, Eleventh Circuit In United States v. Campbell, 778 F.2d 764, 768 (11th Cir.1985), the Eleventh Circuit was equally emphatic: ⁶⁷⁴ Campbell alleges that she would not have pleaded guilty if her trial counsel had advised her of the deportation consequences of the plea. This bare allegation is not sufficient, however, to establish prejudice under Strickland. ... [A] defendant’s lack of knowledge of those collateral consequences cannot affect the voluntariness of the plea. Accordingly, counsel’s failure to advise the defendant of the collateral consequences of a guilty plea cannot rise to the level of constitutionally ineffective assistance.

(Emphasis supplied). 1988, Fourth Circuit The Fourth Circuit in United States v. Yearwood, 863 F.2d 6, 7-8 (4th Cir.1988), agreed with the other circuits. Turning to the issue raised in defendant’s § 2255 motion, we agree with the circuits which have decided the issue and found that an attorney’s failure to advise a client that deportation may result from a conviction does not constitute ineffective assistance of counsel. ... Defendant’s trial counsel had no spontaneous duty to inform defendant that his guilty plea would lead to his being deported. (Emphasis supplied). 1989, Seventh Circuit In Santos v. Kolb, 880 F.2d 941, 944 (7th Cir.1989), the Seventh Circuit added its voice to the unanimous verdict of the federal circuit courts.

In a recent and similar case, we held that it was not ineffective assistance of counsel for an attorney to fail to inform his client of the immigration consequences of a conviction for a drug offense. In United States v. George, 869 F.2d 333 (7th Cir.1989), we stated: ... A deportation proceeding is a civil