Miller v. State

CHARLES E. MOYLAN, JR. (Retired, Specially Assigned), J. Journeys in the Fourth Dimension The key issue before us, as we reconsider on remand our earlier decision in this case, is that of how a recent opinion of ⁴⁵⁷ the Supreme Court announcing constitutional law might retroactively apply to a Maryland conviction that had long since become final and is now before us only on collateral, rather than on direct, review. Our focus will be upon 1) the test that must be applied to determine whether the recent Supreme Court pronouncement is or is not “new law”; 2) the precise earlier Maryland event to which the newly announced federal law is arguably to be retroactively applied; and 3) the time as of which the “old versus new law” measurement is to be taken. Permeating all of these issues is the critical question of timing.

When does something that once was “new law” become “old law” and, if it does thus ripen, what exactly are the maturing agents that bring about such change? How does H.G. Wells’s Time Machine behave in the court room? This Court filed its decision in Miller v. State, 196 Md.App. 658 , 11 A.3d 340 (2010). On November 23, 2011, the Court of Appeals filed a Per Curiam Order vacating our judgment and remanding the case to us “for reconsideration in light of Denisyuk v. State [ 422 Md. 462 , 30 A.3d 914 ] ... filed on October 25, 2011.” Miller v. State: The Decision Reaffirmed We have thoroughly reviewed and reconsidered our decision in Miller in light of Denisyuk and find nothing that directly and authoritatively requires us to change our earlier decision.

We hereby reaffirm it. We do believe, however, that some comment is appropriate to explain why Denisyuk does not persuade us to alter our original holding. The riddle of whether a judicial decision that breaks new ground should receive only prospective, partly retroactive, or fully retroactive application can be incredibly complex. The subtle interaction of the Supreme Court’s opinion in Padilla v. Kentucky, the Court of Appeals’s opinion in Denisyuk v. State, and this Court’s opinion in Miller v. State implicates numerous sub-issues, some of which have never been raised before in a Maryland court.

Accordingly, we deemed it advisable to enlist the assistance of counsel in plumbing some of the depths of the retroactivity/prospectivity question. We asked both par ⁴⁵⁸ ties to submit supplemental memoranda addressing five questions: 1. What impact, if any, should Denisyuk v. State, 422 Md. 462 [ 30 A.3d 914 ] (2011) and Padilla v. Kentucky, 559 U.S.-, 130 S.Ct. 1473 , 176 L.Ed.2d 284 (2010), have on our decision in Miller v. State ? 2. What exactly is the test for whether a newly announced Supreme Court decision is actually “new law” or is simply an application of an already well-established principle? 3.

To what point in the past do we apply that test, to wit, was the arguably retroactive rule “new law” or an “established principle” as of precisely what date? 4. Does Padilla v. Kentucky’s statement that the distinction between a direct consequence and a collateral consequence of a criminal conviction is “ill-suited” to evaluating non-advice about deportation, 130 S.Ct. at 1482 , have any retroactive impact on earlier analyses? 5. As to retroactivity/prospectivity questions generally, should Maryland follow Teague v. Lane and, if not, what should be our alternative framework of analysis? In addition to their legal memoranda, we also had the benefit of counsel’s addressing those issues at reargument on September 12, 2012.

Denisyuk Does Not Control Miller There is, to be sure, an obvious overlap in the core concerns of both Denisyuk and Miller . Both opinions focus on the Supreme Court’s decision in Padilla v. Kentucky, 559 U.S. -, 130 S.Ct. 1473 , 176 L.Ed.2d 284 , filed on March 31, 2010. Both opinions concern the applicability of Padilla to the respective situations under review in those two cases. Although the two cases share a general interest in Padilla , however, their ultimate situations with respect to Padilla’s applicability are radically different in two significant regards. ⁴⁵⁹ A. Dissimilar Substantive Issues A critical, indeed dispositive, difference is with respect to the type of legal issue that might or might not be impacted by the Padilla holding.

What Denisyuk held is that the holding of Padilla will enjoy retroactive applicability in Maryland. It is necessary, therefore, to identify that precise holding of Padilla . The majority opinion of the Supreme Court held: It is our responsibility under the Constitution to ensure that no criminal defendant—whether a citizen or not—is left to the “mercies of incompetent counsel. ” Richardson, 397 U.S. at 771, 90 S.Ct. 1441 , 25 L.Ed.2d 763 . To satisfy this responsibility, we now hold that counsel must inform, her client whether his plea carries a risk of deportation.

Our longstanding Sixth Amendment precedents, the seriousness of deportation as a consequence of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand no less. Taking as true the basis for his motion for postconviction relief, we have little difficulty concluding that Padilla has sufficiently alleged that his counsel was constitutionally deficient. Whether Padilla is entitled to relief will depend on whether he can demonstrate prejudice as a result thereof, a question we do not reach because it was not passed on below. 559 U.S. at-, 130 S.Ct. at 1486-87 , 176 L.Ed.2d at 299 (emphasis supplied). We must next identify precisely what Denisyuk held to be the Padilla holding that is now to be given retroactive applicability: We conclude, for the reasons that follow, that the holding of Padilla, i.e., that the failure of defense counsel to advise his or her client of the potential immigration consequence of a guilty plea is deficient performance under Strickland, applies retroactively to all cases arising out of convictions ⁴⁶⁰ based on guilty pleas that occurred after April 1, 1997, the effective date of the enactment of the IIRAIRA. 422 Md. at 479-79 , 30 A.3d 914 (emphasis supplied).

From its introduction to its conclusion and at all points between, Denisyuk focused, as did Padilla before it, on the Sixth Amendment right to the effective assistance of counsel as measured by the two-pronged test of Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). Denisyuk’s analysis focused exclusively on the professional performance of defense counsel, as measured not by preexisting caselaw but by emerging bar association standards of professional responsibility. In Miller , by contrast, the issue before the lower court, the decision of the lower court, and the original opinion of this Court had absolutely nothing to do with the Sixth Amendment or with ineffective assistance of counsel. Our only concern in Miller was with the ultimate voluntariness of a guilty plea, as measured by the seminal Maryland cases of State v. Priet, 289 Md. 267 , 424 A.2d 349 (1981), and State v. Daughtry, 419 Md. 35 , 18 A.3d 60 (2011).

The exclusive focus in Miller was on the mind of the defendant, not on the professional performance of the lawyer. The latter, of course, may have some influence on the former, but such influence is by no means automatic and the two issues are far from the same. To compare Denisyuk with Miller is to compare apples and oranges. Even assuming a retroactive application of Padilla to cases on collateral review generally, the direct impact of Padilla on a claim of ineffective assistance, on the one hand, and its, at most, indirect and arguable influence on a claim of guilty plea involuntariness, on the other hand, are by no means the same.

The first is directly dispositive, at least with respect to the performance prong of Strickland v. Washington. The latter would be, at most, indirect and the arguable influence would be extremely problematic. Denisyuk stated that, as of April 1, 1997, the failure of defense counsel to advise a non-citizen defendant contemplat ⁴⁶¹ ing a guilty plea that a conviction might result in ultimate deportation would amount to, ipso facto, the failure to satisfy the performance prong of Strickland v. Washington. As the Court of Appeals announced, 422 Md. at 478-79 , 30 A.3d 914 : We conclude, for the reasons that follow, that the holding of Padilla, i.e., that the failure of defense counsel to advise his or her client of the potential immigration consequence of a guilty plea is deficient performance under Strickland, applies retroactively to all cases arising out of convictions based on guilty pleas that occurred after April 1, 1997, the effective date of the enactment of the IIRAIRA.

(Emphasis supplied). That’s all there is to it! The Sixth Amendment analysis is over and the case, if it is a Sixth Amendment case, is decided. An assessment of the voluntariness of a guilty plea, by diametric contrast, is never so automatic or mechanistic an exercise.

For the very different criteria that determine the voluntariness of a guilty plea, see Boykin v. Alabama, 395 U.S. 238 , 89 S.Ct. 1709 , 23 L.Ed.2d 274 (1969); Brady v. United States, 397 U.S. 742 , 90 S.Ct. 1463 , 25 L.Ed.2d 747 (1970). All pertinent factors will enter into the analysis and voluntariness will ultimately be assessed only after examining the totality of the circumstances. Judge Harrell described the voluntariness standard in State v. Daughtry, 419 Md. 35, 79-80 , 18 A.3d 60 (2011): Our decision in the present case in no way “overrules prior law and declares a new principle of law.” The law of this State with respect to the voluntariness of guilty pleas has been the same over the past thirty years since we decided Piiet (if not longer): “[WJhether, considering the record as a whole, the trial judge could fairly determine that the defendant understood the nature of the charge to which he pleaded guilty.” ... Today, we reaffirm this “totality of the circumstances” approach to determining the voluntariness of guilty pleas.

(Emphasis supplied). Bearing directly on the essential fluidity of a voluntariness assessment, as opposed to the more mechanistic Sixth Amend ⁴⁶² ment assessment, are the dissenting voices of Judge Battaglia and Judge Murphy in DenisyuJc itself. After deciding that defense counsel had failed the Strickland prejudice prong, the Denisyuk majority had gone on to accept the trial judge’s factfinding that had the defendant been aware of the possibility of deportation, he would never have pled guilty. It was that further finding that for the majority satisfied Strickland’s prejudice prong.

It was at that point, however, that Judges Battaglia and Murphy bridled. Judge Battaglia pointed out that, as a matter of common sense, a number of circumstances might persuade a defendant voluntarily to plead guilty notwithstanding a risk of future deportation. The plea may have made good sense at the time but, with the benefit of hindsight once the sentence has been served, it is easy to have buyer’s remorse about the plea. Judge Battaglia’s point was that the plea itself may have been voluntary even if the advice that preceded it had constituted ineffective assistance.

The two issues are not clones of each other. One of the prominent factors in a defendant’s decision to plead guilty, Judge Battaglia’s dissent also points out, may be the strength of the State’s case. If the State’s case is so watertight that a conviction is virtually inevitable regardless of the trial mode selected, a guilty plea does not really give away very much. The unspoken but highly dubious assumption of Padilla , on the other hand, seems to be that without the antecedent guilty plea there would be no conviction.

If, however, a conviction is a virtual certainty in any event, the choice of the trial modality will have little or no effect on the ultimate deportation issue. To the extent to which the choice of the trial modality will have little effect on deportation, the risk of deportation conversely will have little effect on the choice of the trial modality. On the issue of the effective assistance of counsel, the failure to advise about the deportation risk may be, ipso facto, dispositive. On the very different issue of the voluntariness of the guilty plea, by contrast, the ineffective assistance may have no catalytic effect at all.

The one issue does not control the other. ⁴⁶³ Judge Battaglia also pointed out that another big factor in assessing the voluntariness of a guilty plea may be that of how good a deal the defendant is getting out of the plea bargain. “Whether the benefit obtained from the guilty plea was substantial also has been a frequent consideration among trial courts.” 422 Md. at 492 , 30 A.3d 914 . Many criminal defendants are neither far-sighted nor visionary. The risk of deportation at some future time might have little weight beside the palpable reward of less hard jail time right now. It is not inconceivable that a defendant might make the pragmatic decision that a bird in the hand is worth two in the bush or that less jail time is a good deal even if the non-jail time is to be spent in Mexico.

The Denisyuk dissent of Judges Battaglia and Murphy counsels against accepting at face value every self-serving declaration made by a convicted criminal, sometimes long after the fact. Maryland Rule 4-242(e), albeit not constitutional, is also a concrete illustration that the issues of 1) the furnishing of advice about deportation, on the one hand, and 2) the voluntariness of even an unadvised guilty plea, on the other hand, are distinct questions and that decisions with respect to them could go in diametrically different directions. Subsection (e), added to the rule in 1999, provides, in pertinent part: (e) Collateral consequences of a plea of guilty or nolo contendere. Before the court accepts a plea of guilty or nolo contendere, the court, the State’s Attorney, the attorney for the defendant, or any combination thereof shall advise the defendant (1) that by entering the plea, if the defendant is not a United States citizen, the defendant may face additional consequences of deportation, detention, or ineligibility for citizenship....

The omission of advice concerning the collateral consequences of a plea does not itself mandate that the plea be declared invalid. (Emphasis supplied). In Denisyuk itself, 422 Md. at 484 n. 9, 30 A.3d 914 the majority opinion quoted extensively from Rule 4-242(e) and expressly pointed out that when the advice mandated by the ⁴⁶⁴ rule is not given, the unadvised defendant is “permit[ted] collateral challenges based on ineffective assistance of counsel” but that the guilty plea itself will not necessarily be invalidated. The minutes of the April 24, 1998, meeting of the Court of Appeals Standing Committee on Rules of Practice and Procedure reflect the intention of the drafters of Rule b-2b2(e) to permit collateral challenges, based on ineffective assistance of counsel, to a plea that did not include on-the-record advice concerning immigration consequences: The Vice Chair expressed her disagreement with the fact that if a judge fails to advise the defendant about the consequences of a guilty plea, no remedy exists, even if that defendant suffers dire consequences.

Some other states provide that if the advice is not given, the plea can be invalidated. The Chair pointed out that there are two aspects to this. One is that the defendant can get post-conviction relief based on inadequate advice of counsel. The Rule says that the guilty plea cannot be attacked, but does not preclude postconviction relief.

U.S. citizens may not ask for their pleas to be set aside because the judge did not give the advice about immigration consequences. If a particular defendant is unfairly prejudiced, that defendant’s right to competent defense counsel should cover this situation. (Emphasis supplied). The Committee Note to the rule amendment unequivocally states that the addition of subsection (e) to Rule 4-242 “does not overrule Yoswick v. State, 347 Md. 228 , 700 A.2d 251 (1997) and Daley v. State, 61 Md.App. 486 , 487 A.2d 320 (1985).” Yoswick states, 347 Md. at 240 , 700 A.2d 251 , “[A] plea of guilty is not rendered involuntary in the constitutional sense if the defendant is not informed of the collateral consequences.” (Emphasis supplied).

We will further discuss those cases infra. We repeat that our Miller v. State deals only with the voluntariness of a guilty plea. Padilla v. Kentucky, for its part, does not deal with and has absolutely ⁴⁶⁵ nothing to say about the voluntariness of a guilty plea. The Court of Appeals’s opinion in Denisyuk v. State also does not deal with and has absolutely nothing to say about the voluntariness of a guilty plea.

Conversely, the retroactive Sixth Amendment relief sanctioned by Denisyuk was never requested by Miller. In denying coram nobis relief, Judge Lamasney had no occasion even to consider Strickland v. Washington or the Sixth Amendment right to the effective assistance of counsel. The petition for coram nobis relief never so much as mentioned the Sixth Amendment, and the subject was not raised at the subsequent hearing. Our opinion in Miller v. State was not predicated on the Sixth Amendment in any way.

The failure of a defense attorney to satisfy the performance prong of Strickland v. Washington does not ipso facto render a guilty plea involuntary. This is our primary reason for concluding, on reconsideration, that Denisyuk v. State neither compels nor persuades us to reach a different result in Miller v. State. The two cases deal with totally different subjects. B. A Temporal Dissimilarity: “The times they are achangin’ ” 1 How does the law deal with the fourth dimension?

With the possible exception of the natural rights of man in the eyes of Eighteenth Century legal philosophers, every legal principle, no matter how venerable now, once was new. The right to trial by jury has long been cherished, but it was new at the Assize of Clarendon in 1166. Its evolution into a generally accepted trial procedure came appreciably later. It is now a commonplace, of course, that every defendant is entitled to the “law of the land,” but that concept was new when King John signed the Magna Charta on June 15, 1215.

Its ripening into a compelling reality took decades, if not centuries. We treat today as long established the entitlement of a defendant to confront his accusers, but that notion was not yet born when Sir Walter Raleigh was tried for treason in 1603. Every precept we now take for granted had a beginning, and its ⁴⁶⁶ growth into something to be taken for granted was never instantaneous. So is it with advice about the risk of deportation.

Even if, arguendo, some aspect of Padilla v. Kentucky (not its Sixth Amendment holding, of course, but some of its reasoning process, such as its rejection of the distinction between direct consequences and collateral consequences) were deemed to have, at least arguably, some possible retroactive effect on our analysis in Miller , the retroactive application mandated by the time frame announced in Denisyuk would not be similarly mandated by the very different time frame in Miller . In dealing with questions of prospectivity and retroactivity, the search for a solution lies not in pinpointing when a new idea is born but in identifying that point in its evolution when it becomes so widely recognized that its acceptance can be said to be, in the language of the Supreme Court, “compelled by existing precedent.” Are we concerned in this case, for instance, with the state of the law on March 31, 2010, the date on which Padilla v. Kentucky was decided? Or are we concerned with the state of the law on March 7, 2007, the date on which Denisyuk’s criminal conviction became final? Or are we concerned with the state of the law on September 1, 1999, the date on which Miller’s criminal conviction became final?

Or are we possibly concerned with the state of the law on some other date? These are all very different questions, possibly yielding very different answers. We cannot even begin, therefore, the assessment process until we know what we are looking for. We need to know what is the test to be applied? and we need to know when is that test to be applied?

We also need to know where to look to get the answers to these questions. What is our controlling retroactivity law? Our Questions to Counsel With respect to each of these three critical questions, we sought the input of counsel. In terms of What is the test to be applied?, we asked: ⁴⁶⁷ What exactly is the test for whether a newly announced Supreme Court decision is actually “new law” or is simply an application of an already well-established principle?

With respect to the question of When is that test to be applied?, we asked: To what point in the past do we apply that test, to wit, was the arguably retroactive rule “new law” or an “established principle” as of precisely what date? In terms of Where do we look for the answers?, we asked: As to retroactivity/prospectivity questions generally, should Maryland follow Teague v. Lane and, if not, what should be our alternative framework of analysis? Maryland Follows Teague v. Lane Whatever the future may hold, Maryland in the past has regularly and invariably followed the Supreme Court’s guidance on the issue of retroactivity/prospectivity and Maryland, for the present, continues to follow the Supreme Court guidelines. Those Supreme Court guidelines are to be found in Teague v. Lane, 489 U.S. 288 , 109 S.Ct. 1060 , 103 L.Ed.2d 334 (1989), and in its extensive progeny over the course of the last 23 years.

It is a highly sophisticated and meticulously integrated body of law, and we know of no state that has rejected it for some alternative framework of analysis. Beginning with Linkletter v. Walker, 381 U.S. 618 , 85 S.Ct. 1731 , 14 L.Ed.2d 601 (1965), the Supreme Court spent a troubled quarter of a century grappling for the first time with the profoundly complex problems posed by the issue of retro-activity. After numerous instances of trial and error and with the benefit of massive and learned academic commentary, however, it ultimately forged, beginning with Griffith v. Kentucky, 479 U.S. 314 , 107 S.Ct. 708 , 93 L.Ed.2d 649 (1987) and culminating with Teague v. Lane in 1989, a tightly integrated and doctrinally consistent body of law. 2 ⁴⁶⁸ Throughout the troubled but formative first quarter of a century, the heavy intellectual lifting was done by Justice John Marshall Harlan, first in a penetrating dissent in Desist v. United States, 394 U.S. 244 , 89 S.Ct. 1030 , 22 L.Ed.2d 248 (1969) and then in a comprehensive overview of the entire field in his concurring and dissenting opinion in Mackey v. United States, 401 U.S. 667 , 91 S.Ct. 1160 , 28 L.Ed.2d 404 , in 1971. It was Justice Harlan’s insight that was partially embraced by Griffith v. Kentucky in 1987 and fully accepted by Teague v. Lane in 1989.

It was in Griffith v. Kentucky that the Court first developed the concept of quasi-retroactive applicability. If the Supreme Court ruling being examined is deemed to be “new law,” generally speaking it will not be applied retroactively. What Griffith established, however, is that the new law will, quasi-retroactively, be applied to all cases that are not yet final, in the sense that they are still on actual or potential direct review. Two years later, Teague v. Lane proceeded to fill in the rest of the retroactivity/prospectivity doctrine.

Because the forging of this new highly sophisticated and tightly integrated body of law only culminated with Griffith in 1987 and Teague in 1989, however, it is highly treacherous to cite any Supreme Court decision from the chaotic two decades that preceded 1987. The only exception to this caveat would be the trail-blazing Harlan dissents in Desist v. United States (1969) and Mackey v. United States (1971). Justice O’Connor’s seminal opinion in Teague was, to be sure, simply a plurality opinion. That frailty in the pedigree, however, did not last long.

Teague was decided on February 22, 1989. The Teague standard was adopted by the majority of the Court four months later in Penry v. Lynaugh, 492 U.S. 302 , 109 S.Ct. 2934 , 106 L.Ed.2d 256 (1989), and has enjoyed rock-solid majority status ever since. Danforth v. Minnesota, 552 U.S. 264 , 266 n. 1, 128 S.Ct. 1029 , 169 L.Ed.2d 859 (2008) (“Although Teague was a plurality opinion that drew support ⁴⁶⁹ from only four Members of the Court, the Teague rule was affirmed and applied by a majority of the Court shortly thereafter.”). See also Wright v. West, 505 U.S. 277, 291 , 112 S.Ct. 2482 , 120 L.Ed.2d 225 (1992).

For the past 23 years, Teague’s comprehensive coverage of the field has been universally followed and respected. We are not unmindful of the dicta in a footnote in Denisyuk, 422 Md. at 480 n. 8, 30 A.3d 914 observing that “Maryland has not adopted Teague , nor must it.” Significantly, however, Maryland, despite the dicta, has not rejected Teague . Neither has it forged a comprehensive retroactivity/prospectivity body of law of its own, nor must it. The Maryland case law, moreover, has tracked the Supreme Court’s treatment of the subject precisely and has never betrayed the slightest tendency to wander off on its own.

Judge Marvin Smith undertook the first detailed examination of retroactivity law for Maryland in Wiggins v. State, 275 Md. 689 , 344 A.2d 80 (1975). He began his analysis of retroactivity with the sentence, “The genesis of the modern retroactivity doctrine in criminal litigation is Linkletter v. Walker (1965).” His ensuing analysis cited 22 Supreme Court opinions and quoted at significant length from 10 of them. The retroactivity decision in State v. Hicks, 285 Md. 310 , 403 A.2d 356 (1979), also relied on Linkletter v. Walker (1965) and Stovall v. Denno (1967), as well as on two other Supreme Court cases dealing with retroactivity in civil cases. Holding that even a ruling that is “new law” will apply to cases that are still on direct review, Judge Smith in McClain v. State, 288 Md. 456 , 419 A.2d 369 (1980), actually anticipated what the Supreme Court would subsequently do in Griffith v. Kentucky (1987) and Teague v. Lane (1989), after analyzing at great length and then adopting the analysis urged by Justice Harlan in his dissents in Desist (1969) and Mackey (1971).

Chief Judge Robert Murphy also engaged in a significant retroactivity analysis for the Court of Appeals in Potts v. State, 300 Md. 567 , 479 A.2d 1335 (1984). That decision relied almost totally on the Supreme Court opinions of United States v. Johnson (1982), Linkletter v. Walker (1965), Solem v. ⁴⁷⁰ Stumes (1984), and Stovall v. Denno (1967). The opinion also cited seven decisions from various United States Courts of Appeals interpreting the Supreme Court law. The subsequent Maryland caselaw has not broken stride in its fundamental dependence on Supreme Court retroactivity law.

Houghton v. County Commissioners, 307 Md. 216 , 513 A.2d 291 (1986), relied on the Supreme Court cases of United States v. Johnson (1982), Chevron Oil Co. v. Huson (1971), and Hanover Shoe, Inc. v. United Shoe Mach. Corp. (1968). American Trucking Assoc. v. Goldstein, 312 Md. 583 , 541 A.2d 955 (1988), relied on the Supreme Court cases of Hanover Shoe (1968) and Linkletter (1965), as well as on Lawrence Tribe, American Constitutional Law (2d ed.1988). The extremely brief reference to retroactivity in Owens-Illinois v. Zenobia, 325 Md. 420, 471 , 601 A.2d 633 (1992), cited to Linkletter (1965).

The Maryland decisions relied on by Walker v. State, 343 Md. 629, 637-40 , 684 A.2d 429 (1996), were Maryland decisions that had, in turn, relied on federal law. In Warrick v. State, 108 Md.App. 108 , 671 A.2d 51 (1996), Judge Harrell for this Court not only relied on the Supreme Court decisions in Yates v. Aiken (1988), Griffith v. Kentucky (1987), and Stovall v. Denno (1967), but also stated that Maryland would use the same retroactivity analysis on local statutes and rules of court as it has traditionally used in dealing with federal constitutional rulings: The question of retroactivity in case law is most frequently found in the context of new constitutional rules. Here, however, no constitutional question is implicated. Nonetheless, the principles set forth here apply equally in the context of new constitutional rules as they do in the present context.

See State v. Hicks, 285 Md. 310, 338 , 403 A.2d 356 (1979) (“while Stovall, Linkletter, and Wiggins involved new constitutional rulings, the principles there announced apply as well to new interpretations of statutory provisions or rules.”). 108 Md.App. at 112 n. 1, 671 A.2d 51 (emphasis supplied). State v. Daughtry, 419 Md. 35, 77-80 , 18 A.3d 60 (2011), did not depart in any way from settled Supreme Court retroactivi ⁴⁷¹ ty law. The Maryland cases that it cited were all, in their turn, decisions that had cited and that completely followed established federal law. Judge James Eyler’s opinion in Allen v. State, 204 Md.App. 701, 42 A.3d 708 (2012), is a thorough summary and analysis of the development of the Supreme Court’s retroactivity/prospectivity law from Linkletter v. Walker in 1965 through Teague v. Lane in 1989.

Any minor variations in phraseology between the Supreme Court originals and the Maryland restatements of those originals are more a matter of random style than of any deliberate intention to have Maryland go off in a different direction. Even to speak, therefore, of a “Maryland retroactivity jurisprudence” is an ipse dixit without any foundation. It simply does not exist. It is inconceivable, moreover, that Maryland would ever wish to undertake the incredibly daunting task of creating an alternative and independent body of retroactivity doctrine in opposition to Teague v. Lane.

Maryland has never voiced a single complaint about Teague v. Lane, except perhaps for the completely unpersuasive dicta in Denisyuk . Padilla v. Kentucky is a decision of the Supreme Court of the United States. The issue of whether Padilla announced new law and shall be applied only prospectively, on the one hand, or simply applied a settled principle and should be applied retroactively, on the other hand, is currently before the Supreme Court in its review of Chaidez v. United States, 655 F.3d 684 (7th Cir.2011). It is scheduled for argument on October 30, 2012.

Should the Supreme Court decide that Padilla is not retroactive, it is inconceivable why Maryland would wish to go in an opposite direction from the Supreme Court and, effectively speaking, from the rest of the country. It is difficult to imagine what criteria Maryland would then have to invent to justify such a departure. It is also difficult to imagine what purpose would be served by doing so. As Judge Adkins noted in her Denisyuk dissent, 422 Md. at 494 n. 1, 30 A.3d 914 “[w]e are not bound by the federal standard, but it is persuasive.” ⁴⁷² Is There One Strickland Test Or Many?

In applying Padilla to the Sixth Amendment’s right to effective assistance of counsel and to the two-pronged standard of Strickland v. Washington, moreover, Maryland’s hypothetical departure from the national norm could pose insurmountable problems. Strickland’s performance prong measures the performance of counsel against a national norm. See Roe v. Flores-Ortega, 528 U.S. 470, 479 , 120 S.Ct. 1029 , 145 L.Ed.2d 985 (2000) (“[W]hile States are free to impose whatever specific rules they see fit to ensure that criminal defendants are well represented, we have held that the Federal Constitution imposes one general requirement: that counsel make objectively reasonable choices.”); Bobby v. Van Hook, 558 U.S. 4, 17 , 130 S.Ct. 13 , 175 L.Ed.2d 255 (2009). How could a Maryland lawyer be deemed ineffective for failing to do what lawyers in the rest of the country had never have been required to do?

For the performance prong of Strickland, fragmentation will not work. To appreciate the totally fruitless folly of Maryland’s going off on its own, one need only posit the hypothetical dilemma that would be produced if 1) the Supreme Court should decide that Padilla v. Kentucky will not apply retroactively to criminal convictions that were already final when Padilla was decided but 2) Maryland should decide that Padilla will be applied retroactively to such cases in Maryland. With respect to those cases that were already final, Maryland would be retroactively imposing a higher performance standard on defense attorneys than the Supreme Court would be imposing on lawyers in the rest of the country. To fail to have satisfied the heightened Maryland standard, therefore, could not amount to ineffective assistance of counsel within the contemplation of the Sixth Amendment of the United States Constitution.

A heightened Maryland standard cannot raise the standard for Strickland v. Washington’s performance prong. Posit two otherwise indistinguishable guilty pleas ten years ago, one in Maryland and the other in Delaware. In each case, the lawyer failed to warn the client about the risk of ⁴⁷³ deportation. In each case the client plead guilty and was ultimately deported.

Is it conceivable that the freshly vindicated Maryland defendant received ineffective assistance under Strickland and is now luxuriating in Ocean City, whereas his banished Delaware counterpart received adequate assistance under Strickland and is still languishing in Bangladesh? The same Strickland v. Washington cannot produce such diametrically different results. There is only one Sixth Amendment standard, not fifty-one. The very existence of the two-pronged test of Strickland v. Washington is federal constitutional law, not independent Maryland law.

Maryland has no Strickland v. Washington of its own. To ignore the Supreme Court, therefore, would require not only the invention of an independent retroactivity/prospectivity law but the invention of an independent right to the assistance of counsel law as well. What would be the point? In any event, until the Court of Appeals holds that Maryland courts are required to do otherwise, this Court will continue to accept Teague v. Lane and its progeny as controlling.

What Is the Test of Newness? When Does It Apply? The twin questions of What is the test? and When shall the test be applied? are so inextricably intertwined that an opinion that answers one of those questions invariably answers the other in the same breath. The touchstone for determining not only what “new law” is but also for pinpointing when the newness of the law shall be measured is Teague v. Lane, 489 U.S. 288, 301 , 109 S.Ct. 1060 , 103 L.Ed.2d 334 (1989), itself: 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 ⁴⁷⁴ if the result was not dictated, by precedent existing at the time the defendant’s conviction became final. (Emphasis supplied). That precise answer as to, “What is a new rule?” and as to, “When shall the measurement be taken?” was reaffirmed four months later in Penny v. Lynaugh, 492 U.S. 302, 314 , 109 S.Ct. 2934 , 106 L.Ed.2d 256 (1989). In her dissenting opinion in Denisyuk, 422 Md. at 493-94 , 30 A.3d 914 Judge Adkins agreed that this was the definition of “new law” articulated by Teague v. Lane: It is clear that Padilla created a new rule under the federal standard for retroactivity.

In Teague v. Lane, the Supreme Court set forth the federal standard, holding that a rule is “new,” and thus not applicable retroactively, if “the result was not dictated by precedent existing at the time the defendant’s conviction became final.” (Emphasis supplied). Within the year after Teague v. Lane, the Supreme Court was called upon in Butler v. McKellar, 494 U.S. 407 , 110 S.Ct. 1212 , 108 L.Ed.2d 347 (1990), to decide whether Butler, whose conviction had become final in 1982, was entitled to the retroactive benefit of the Supreme Court’s 1988 decision in Arizona v. Roberson, 486 U.S. 675 , 108 S.Ct. 2093 , 100 L.Ed.2d 704 (1988). The newness test, significantly, was administered not as of June 15, 1988, when Arizona v. Roberson was filed, but as of 1982, when Butler’s conviction had become final. The Supreme Court held that the rule ultimately announced in Roberson was not “dictated by precedent existing at the time the petitioner’s [Butler’s] conviction became final” in 1982. 494 U.S. at 412 , 110 S.Ct. 1212 (emphasis supplied).

Saffle v. Parks, 494 U.S. 484 , 110 S.Ct. 1257 , 108 L.Ed.2d 415 (1990), was decided the same day as Butler v. McKellar. The Supreme Court both articulated the controlling rule and explained its salutary purpose: “The ‘new rule’ principle therefore validates reasonable, good-faith interpretations of existing precedents made by state courts even though they are shown to be contrary to ⁴⁷⁵ later decisions.” Under this functional view of what constitutes a new rule, our task is to determine whether a state court considering Parks’ claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule Parks seeks was required by the Constitution. 494 U.S. at 488, 110 S.Ct. 1257 (emphasis supplied). The Court there held that the rule that Parks was contending for in 1990 would not have been “compelled by existing precedent” as of the time that Parks’s conviction became final in 1982. It was, therefore, new law and was not retroactively binding.

See also Sawyer v. Smith, 497 U.S. 227, 235 , 110 S.Ct. 2822 , 111 L.Ed.2d 193 (1990) (“Examination of our Eighth Amendment authorities that preceded Caldwell [v. Mississippi in 1985] shows that it was not dictated by prior precedent existing at the time the defendant’s conviction became final [on April 2, 1984].”) (emphasis supplied). In Graham v. Collins, 506 U.S. 461, 467-68 , 113 S.Ct. 892 , 122 L.Ed.2d 260 (1993), the day that Graham’s conviction became final on September 10, 1984 was held to be the critical date for surveying the legal landscape and for determining whether a future ruling could be deemed to have been dictated or compelled by the law existing back at that earlier time. [Ujnless reasonable jurists hearing petitioner’s claim at the time his conviction became final “would have felt compelled by existing precedent” to rule in his favor, we are barred from doing so now. Surveying the legal landscape as it then existed, we conclude that it would have been anything but clear to reasonable jurists in 1984 that petitioner’s sentencing proceeding did not comport with the Constitution. (Emphasis supplied).

In O’Dell v. Netherland, 521 U.S. 151 , 117 S.Ct. 1969 , 138 L.Ed.2d 351 (1997), the lay of the legal landscape had to be surveyed as of October 3, 1988, when the petitioner’s convic ⁴⁷⁶ tion became final, not as of 1994, when the opinion the petitioner sought to have retroactively applied was decided: Petitioner’s conviction became final on October 3, 1988, when we declined to review the Virginia Supreme Court’s decision affirming his sentence on direct review. Simmons, the rule of which petitioner now seeks to avail himself, was decided in 1994. 521 U.S. at 157 , 117 S.Ct. 1969 (emphasis supplied). The application of the Teague v. Lane standard was clear: This case presents the question whether the rule set out in Simmons v. South Carolina (1994) ...—was “new” within the meaning of Teague v. Lane, and thereby inapplicable to an already final death sentence. We conclude that it was new, and that it cannot, therefore, be used to disturb petitioner’s death sentence, which had been final for six years when Simmons was decided. 521 U.S. at 153 , 117 S.Ct. 1969 (emphasis supplied).

In Lambrix v. Singletary, 520 U.S. 518, 527 , 117 S.Ct. 1517 , 137 L.Ed.2d 771 (1997), the Supreme Court explained the two necessary steps in the retroactivity analysis that a court must always undertake: First, it determines the date upon which the defendant’s conviction became final. Second, it must “ ‘surve[y] the legal landscape as it then existed, ’ and ‘determine whether a state court considering [the defendant’s] claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule [he] seeks was required by the Constitution.” (Emphasis supplied). The new Supreme Court decision the retroactivity of which was being considered was Espinosa v. Florida, 505 U.S. 1079 , 112 S.Ct. 2926 , 120 L.Ed.2d 854 (1992). The Espinosa opinion had been filed on June 29, 1992.

In deciding whether the Espinosa holding would apply to the petitioner Lambrix, however, the Supreme Court did not examine the state of the law as of June 29, 1992, but looked, rather, to “the legal ⁴⁷⁷ landscape” six years earlier, as of November 24, 1986, when Lambrix’s conviction became final. Lambrix’s conviction became final on November 2j, 1986, when his time for filing a petition for certiorari expired. Thus, our first and principal task is to survey the legal landscape as of that date, to determine whether the rule later announced in Espinosa was dictated by then-existing precedent—whether, that is, the unlawfulness of Lambrix’s conviction was apparent to all reasonable jurists. 520 U.S. at 527-28 , 117 S.Ct. 1517 (emphasis supplied). The Supreme Court concluded that the law later announced on June 29, 1992 was not dictated by precedent existing as of November 24, 1986.

Caspari v. Bohlen, 510 U.S. 383, 393 , 114 S.Ct. 948 , 127 L.Ed.2d 236 (1994), held to the same effect: While our cases may not have foreclosed the application of the Double Jeopardy Clause to noncapital sentencing, neither did any of them apply the Clause in that context. On the contrary, [Pennsylvania v.] Goldhammer [ 474 U.S. 28 , 88 L.Ed.2d 183 (1985) ] and Strickland strongly suggested that Bullington [v. Missouri, 451 U.S. 430 , 101 S.Ct. 1852 , 68 L.Ed.2d 270 (1981) ] was limited to capital sentencing. We therefore conclude that a reasonable jurist reviewing our precedents at the time respondent’s conviction and sentence became final would not have considered the application of the Double Jeopardy Clause to a noncapital sentencing proceeding to be dictated by our precedents. (Emphasis supplied).

In Beard v. Banks, 542 U.S. 406, 413 , 124 S.Ct. 2504 , 159 L.Ed.2d 494 (2004), the petitioner’s conviction had become final in 1987. That, therefore, was the time for surveying the lay of the legal landscape for the newness examination: We must therefore assay the legal landscape as of 1987 and, ask “whether the rule later announced in [Mills ] was dictated by then—existing precedent—whether, that is, the ⁴⁷⁸ unlawfulness of [respondent’s] conviction was apparent to all reasonable jurists.” (Emphasis supplied). In Whorton v. Bockting, 549 U.S. 406 , 127 S.Ct. 1173 , 167 L.Ed.2d 1 (2007), the habeas corpus petitioner sought to have the 2004 confrontation clause decision of Crawford v. Washington applied retroactively to his Nevada conviction which had become final in 1993. Justice Alito posed the issue before the Court: This case presents the question whether, under the rules set out in Teague v. Lane, our decision in Crawford v. Washington [ 541 U.S. 36 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 ] (2004) is retroactive to cases already final on direct review.

We hold that it is not. 549 U.S. at 409 , 127 S.Ct. 1173 (citations omitted). It was first decided that the rule announced in Crawford would not have been compelled by precedent existing at the time that Bockting’s conviction became final in 1993: Because the Crawford rule was not dictated by the governing precedent existing at the time when respondent’s conviction became final, the Crawford rule is a new rule. 549 U.S. at 417 , 127 S.Ct. 1173 . It was also decided that the Crawford decision did not qualify for an exception to the bar on retroactivity by virtue of being a “watershed rule of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding,” an exception that is not pertinent to our present analysis. Our inquiry, therefore, into whether the rule of Padilla was new law or was simply the application of an established principle to a fresh factual predicate is not ultimately directed at May 31, 2010, when Padilla was decided.

Nor, in arguably applying Denisyuk , is our inquiry directed at March 7, 2007, when Denisyuk’s criminal conviction became final. It is directed at September 1, 1999, when Miller’s criminal conviction became final. Simply because the Padilla rule might, arguendo, have been dictated by existing precedent on May 31, 2010 or might even have been dictated by existing precedent on ⁴⁷⁹ March 7, 2007, by no means implies that the same rule would have been dictated or compelled by the precedent that existed eight or eleven years earlier on September 1, 1999. That requires an independent inquiry.

It requires a survey of the state of the law at that earlier time. What the Test of “New Law” Is Not Both Padilla v. Kentucky itself and Denisyuk v. State observed that the Padilla result was “a reasonable interpretation of prior law.” Lambrix v. Singletary, however, points out that that is not the test for when a law is “not new” and may, therefore, be applied retroactively: Most of the dissent is devoted to making a forceful case that Espinosa was a reasonable interpretation of prior law— perhaps even the most reasonable one. But the Teague inquiry—which is applied to Supreme Court decisions that are, one must hope, usually the most reasonable interpretation of prior law—requires more than that. It asks whether Espinosa was dictated by precedent—i.e., whether no other interpretation was reasonable.

We think it plain from the above that a jurist considering all the relevant material (and not, like the dissent, considering only the material that favors the Espinosa result) could reasonably have reached a conclusion contrary to our holding in that case. Indeed, both before and after Lambrix’s conviction became final, every court decision we are aware of did so. 520 U.S. at 538 , 117 S.Ct. 1517 (emphasis supplied). A Two-Step Measuring Process: New Law Now and New Law Then A tell-tale insight into how subtle retroactivity/prospectivity analysis can sometimes be is the alarming frequency with which the Supreme Court definitions find it necessary to resort to negative phraseology. The opinions are replete with references to “non-retroactivity” and to the critical definition of what is “not new law.” It is easy to lose direction in a hall of mirrors. ⁴⁸⁰ Another tricky maneuver is that frequently two separate “old versus new” assessments as of two separate times have to be made.

Even when it somehow manages to get the right result, much of the case law does not always seem to be aware of the double diagnosis problem. At the outset, an “old law” versus “settled principle” assessment has to be made with respect to the Supreme Court decision that is the immediate subject of the controversy. This always comes first. Padilla v. Kentucky as' of March 31, 2010 is a case in point.

If the Padilla decision is unquestionably “new law,” in the sense that it can be said to break new ground by overturning an established precedent or declaring a statute unconstitutional or saying something unquestionably for the first time, then it will apply prospectively to future cases and, of course, to the case being decided and, quasi-retroactively, to all cases still on direct review. Generally speaking, however, such “new law” will, with two relatively esoteric exceptions not here pertinent, 3 not be applied retroactively. In such a case, one “old versus new” assessment is enough. If Padilla was, indeed, “new law” on March 31, 2010, the problem is solved.

We need not even concern ourselves with, for instance, March 7, 2007, when Denisyuk’s criminal conviction became final or with September 1, 1999, when Miller’s criminal conviction became final. If, on the other hand, Padilla was simply an application of established precedent, to wit, was “not new law,” then, but only then, does the “old versus new” assessment have to be made at yet a second moment in time. There is more involved than the simple binary issue of, “Is Padilla retroactive? Yes or no?” If Padilla was “not new” on March 31, 2010, that ⁴⁸¹ means that it is potentially retroactive.

Whether potential retroactivity translates into actual retroactivity, however, must then be assessed on an ad hoc, case-by-case basis with respect to an infinite variety of earlier times. It is then that the Teague v. Lane definitions come into full play. Would, e.g., the Padilla rule that was “not new” on March 31, 2010 also have been “not new,” to wit, “compelled or dictated by existing precedent,” back on March 7, 2007, when Denisyuk’s conviction became final? If so, it will retroactively apply to that conviction.

If not, it will not retroactively apply. Even if the Padilla rule would have been dictated by the precedent that existed on March 7, 2007, however, that still does not tell us what the state of the existing precedent was back on September 1, 1999, when Miller’s conviction became final. That is a totally separate retroactivity question. The Pertinent Date For a Retroactivity Test We are not unmindful of the statement in Denisyuk that the new Padilla requirement was not only established law as of March 31, 2010, but had actually been established law since April 1, 1997, which was the effective date of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.

That, however, is completely at odds with how Teague v. Lane tells us a retroactivity decision must be made. It is, moreover, dicta and we are not persuaded by it. A holding in a case is that which must be decided to render a decision in that case. To reach its result in Denisyuk , it was necessary to decide whether the Padilla rule would have been dictated or compelled by existing precedent as of March 7, 2007, the date on which Denisyuk’s criminal conviction became final.

To go into the past ten years beyond 2007 was unnecessary to the decision. There is, moreover, no way that the April 1, 1997 date could be squeezed into the universally recognized and consistently reiterated Teague definition. “Existing precedent” did not change in any way on April 1, 1997. No case was decided on that day. No bar association standard was promulgated on that day.

The effective date of the new 1996 deportation law ⁴⁸² may, indeed, have created a need for some ameliorative change or for some additional relief, but the need for a thing is not the thing itself. Even if the new deportation law arguably created a need for a change, it did not itself constitute such change. The ameliorative relief, if and when it should ever come, would have to be in the form of new case law being decided or, arguably, new bar association standards being promulgated. We are not told, however, what cases, if any, were decided that would dictate or compel a Padilla-type rule or when such new precedents were decided.

We are not told what particular bar association standards came into being that mandated a change in the law or precisely when those new standards were promulgated, except for Padilla’s vague reference to “the last fifteen years.” That does not tell us what we need to know with respect to the “existing precedent” as of September 1,1999. On April 1, 1997, nobody’s criminal conviction became final; yet that ripening into finality is the only event that any Supreme Court opinion has ever pointed to as being the critical moment when the “old versus new” test is to be applied. There is, moreover, no reference to any “existing precedent,” or even existing professional standards, in esse on April 1, 1997, that could dictate or compel a Padilla-type rule as of that date. April 1, 1997 cannot be fitted into any known definition in any of the case law.

In all of the Padilla discussions of the history of deportation, moreover, there is a troubling disconnect between the disease and the cure. If the effective date for the IIRAIRA of 1996 created an urgent need for ameliorative relief, the obvious need is for the Executive Branch of the United States government to reform the rigidity of its deportation procedures. If deportation law is too harsh and automatic, then, by all means, it should be reformed. If there is a problem, the obvious source of the problem is with the deportation law itself.

That is why we have a United States Congress. The Padilla-type case is a strangely roundabout procedure by which the judicial branch of government is asked to provide ⁴⁸³ indirectly the ameliorative relief that the executive branch or the legislative branch is fully able to provide directly. It is also a strangely partial cure, providing some relief for defendants who plead guilty but doing absolutely nothing for those other deportable non-citizens who have actually gone to trial. Miller v. State: The Opinion Revisited We hereby reissue our opinion in Miller v. State in large measure as it read on December 29, 2010, but with significant revisions to bring it up to date and to take into account the intervening decision of Denisyuk v. State.

The Guilty Plea In the Circuit Court for Prince George’s County on June 1, 1999, the appellant, Lincoln Miller, entered a plea of guilty to the charge of possessing 448 grams of cocaine with the intent to distribute. At no time during the plea discussions was the appellant advised on the record by the court or by counsel about any possibly adverse immigration consequences that might result from a conviction. 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 he finished serving on June 1, 2004.

Subsequent Events Following his release from prison in Maryland, the appellant, who was then 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 pro ⁴⁸⁴ ceedings against him were begun, based on his 1999 conviction 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 Lamasney 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). By way of further making the point that Miller was not a Sixth Amendment case, it is worth noting that Judge Lamasney did not comment on the failure of defense counsel to inform the defendant about the risk of deportation but commented only about the failure of the trial judge to have done so. ⁴⁸⁵ The Holding of 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.

The Padilla opinion was filed on March 31, 2010. Its holding was that the failure of a criminal defense attorney to warn a client, contemplating the entering of a guilty plea, about deportation as a possible consequence of conviction was, ipso facto, an instance of ineffective assistance of counsel pursuant to the performance prong of Strickland v. Washington. 4 On October 25, 2011, moreover, the Court of Appeals filed its opinion in Denisyuk v. State, in which it stated that the Padilla holding with respect to a Sixth Amendment claim of ineffective assistance of counsel would enjoy retroactive effect in Maryland, dating back to April 1, 1997. As we have already fully discussed in that section of this opinion in which we explained why we do not consider our decision in this case to be controlled by either Padilla or Denisyuk , those cases have no direct bearing on the Miller case. They were both dealing with the Sixth Amendment right to the effective assistance of counsel generally and with the performance prong of Strickland v. Washington specifically.

The Petition for a Writ of Error Coram Nobis in this case, filed in the Circuit Court for Prince George’s County on June 18, 2009, did not raise a Sixth Amendment issue. The coram nobis petition raised only Miller’s claim that his guilty plea was not voluntary. As we fully explained supra, the effective assistance of counsel and the voluntariness of a guilty plea are separate and distinct issues. They are not joined at the hip.

A finding of ineffective assistance would by no means compel a ⁴⁸⁶ finding that a guilty plea was involuntary, as has been fully discussed. Accordingly, we hold that Padilla v. Kentucky does not, as Miller alleges, render Judge Lamasney’s denial of the coram nobis petition erroneous. This is our primary holding on this appeal. A Precautionary Further Analysis What we have just held should be enough to dispose of the appeal before us.

A genuine concern for the law’s repose in this case, however, behooves us to go further. There is something fundamentally disturbing about revisiting a guilty plea in a case that became final 13 years ago. The basic interest in finality in the adjudicative process was poignantly expressed by Justice Harlan in his concurring opinion in Mackey v. United States, 401 U.S. 667, 690-91 , 91 S.Ct. 1160 , 28 L.Ed.2d 404 (1971): There are operative competing policies in this area which I regard as substantial. It is, I believe, a matter of fundamental import that there be a visible end to the litigable aspect of the criminal process.

Finality in the criminal law is an end which must always be kept in plain view. ... If law, criminal or otherwise, is worth having and enforcing, it must at some time provide a definitive answer to the questions litigants present or else it never provides an answer at all. ... No one, not criminal defendants, not the judicial system, not society as a whole is benefited by a judgment providing a man shall tentatively go to jail today, but tomorrow and every day thereafter his continued incarceration shall be subject to fresh litigation on issues already resolved. A rule of law that fails to take account of these finality interests would do more than subvert the criminal process itself.

It would also seriously distort the very limited resources society has allocated to the criminal process. While men languish in jail, not uncommonly for over a year, awaiting a first trial on their guilt or innocence, it is not easy to justify expending substantial quantities of the time and energies of judges, prosecutors, and defense lawyers ⁴⁸⁷ litigating the validity under present law of criminal convictions that were perfectly free from error when made final. (Emphasis supplied). The Distinction Between Direct and Collateral Consequences We can well imagine a further argument that Miller, in trying to fend off that finality, might make.

Although, in our judgment, it would have no merit, it could still be time-consuming to litigate it. In the interest of finality, therefore, we will try to strike it down before it gets off the ground. 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 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 pre-Padilla 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). In the course of its analysis in Padilla , the majority opinion of the Supreme Court made one reference to the widely recognized distinction between the direct consequences and the collateral consequences of a criminal conviction: We, however, have never applied a distinction between direct and collateral consequences to define the scope of constitutionally “reasonable professional assistance” required under Strickland. Whether that distinction is ap ⁴⁸⁸ propriate is a question we need not consider in this case because of the unique nature of deportation. Deportation as a consequence of a criminal conviction is, because of its close connection to the criminal process, uniquely difficult to classify as either a direct or a collateral consequence.

The collateral versus direct distinction is thus ill-suited to evaluating a Strickland claim concerning the specific risk of deportation.... Strickland applies to Padilla’s claim. 559 U.S. at-, 130 S.Ct. at 1481-82, 176 L.Ed.2d at 293-94 (emphasis supplied). It is extremely hard to know what to make, if anything, of that statement. The mere fact that the Supreme Court itself had “never applied a distinction between direct and collateral consequences to define the scope of constitutionally ‘reasonable professional assistance’ required under Strickland ” says nothing except that the Supreme Court had never addressed the issue.

The Supreme Court may never have approved the distinction but neither had the Supreme Court ever disapproved it. That the Supreme Court had never addressed the issue did not negate the fact that it was a widely, if not universally, recognized