Editor’s Note: Today we post the second of two parts of an article by Daniel Sylvester, a third-year law student at DePaul University College of Law. The first part was posted on October 18.


III.  Analysis

            The Third Circuit found that Padilla applied retroactively, not because it was a watershed rule, but because it was an old rule.[130]  The Seventh and Tenth Circuits disagreed, finding that Padilla was not only a new rule but that it had no retroactive application because it had not met either of the Teague exceptions.[131]  If the Third Circuit is correct, then Padilla is an old rule that applies retroactively, if the Seventh and Tenth Circuits are correct, then Padilla is a new rule that does not apply retroactively because it meets neither Teague exception.  However, there is a third possibility:  that the Third Circuit is correct—Padilla applies retroactively and that the Seventh and Tenth Circuits are correct—Padilla is a new rule.  Thus, under this approach, Padillawould meet one of the two Teague exceptions and therefore require retroactive application.

A.  Old Rule or New Rule?

            One determines if a rule is an old rule or a new rule under Teague by evaluating whether or not the “result [wa]s dictated by the precedent existing at the time the defendant’s conviction has become final.”[132]  In other words, the question is whether in trying to determine the outcome in Padilla, could the Supreme Court “have felt compelled by existing precedent to conclude that [the Padilla decision] was required by the Constitution.”[133]  The Court looks at the views expressed in its own opinions and at the prior decisions of lower courts to determine if a rule is old or new.[134]  When the Supreme Court splits on a case, it is generally a strong indicator that the Court has announced a new rule.[135]  Additionally, if lower courts’ prior decisions had reached the opposite conclusion of the Supreme Court, it “is compelling evidence that reasonable jurists reading the Supreme Court’s precedents [at that time] . . . could have disagreed about the outcome,” further demonstrating that the Court announced a new rule.[136]

            So, is Padilla an old rule or a new rule?  “The central holding of Padilla is that defense counsel ‘must inform her client whether his [guilty] plea carries a risk of deportation’ if those consequences are clear.”[137]  The Seventh and Tenth Circuits reasoned that Padilla met the Supreme Court’s standards to be considered a new rule because it was decided by a split court that had both a concurrence and a strong dissent which both declared the decision to be groundbreaking.[138]  Additionally, the lower courts were nearly unanimous in their decisions “that the Sixth Amendment did not require counsel to provide advice concerning collateral (as opposed to direct) consequences of a guilty plea,” the Supreme Court’s decision indicated that it was not dictated by precedent.[139]  The arguments from the Seventh and Tenth Circuits create a strong case for Padilla being considered a new rule.  However, the Third Circuit held otherwise.

            In its Teague analysis, the Third Circuit viewed Padilla as an extension of “Strickland’s Sixth Amendment analysis to a non-criminal setting—namely, the failure of criminal defense counsel to advise a client of the mandatory civil removal consequences of pleading guilty.”[140]  It looked more closely at Strickland to determine if Padilla, as applied under that standard, would be a new rule.[141]  Under this analysis, the Third Circuit found that “Padilla followed directly from Strickland” and was an “old rule” which must be applied retroactively on collateral review.[142]

            Unfortunately, the Third Circuit was wrong in deciding that Padilla announced an old rule and thus applied retroactively.  Both the Seventh and Tenth Circuits acknowledged the Third Circuit’s compelling argument that Padilla is an extension of Strickland, but noted that just because Padilla had to be analyzed underStrickland, that alone did not make it an old rule.[143] The Seventh and Tenth Circuits believed that by requiring counsel to provide effective assistance on the civil penalty of deportation, the Supreme Court had announced a new rule, even if that rule then had to be analyzed under Strickland to determine if the counsel was effective or not.[144] By conflating the effective counsel requirement holding and the Strickland effective counsel analysis the Third Circuit’s decision was incorrect.[145]  Additionally, the Third Circuit failed by not continuing the analysis required under Teague—comparing the views expressed by the Supreme Court’s decision in Padilla with the outcomes of the lower courts prior to Padilla—to determine if it was a new rule or not.[146]  The Seventh and Tenth Circuits were correct, and Padilla is a new rule under Teague that does not apply retroactively on collateral review unless it meets one of its two exceptions.[147]

B. The First Teague Exception

            The first Teague exception examines the new rule announced by the Supreme Court to determine if it is substantive or procedural.[148]  The new rule will apply retroactively under the first Teague exception only if it is a substantive rule.[149]  A new rule is substantive if it “narrow[s] the scope of a criminal statute by interpreting its terms, as well as constitutional determinations that place a particular conduct or persons covered by the statute beyond the State’s power to punish.”[150]  A new procedural rule on the other hand only “raises[s] the potential that a defendant who was convicted under improper procedure may have been otherwise acquitted.”[151]  The new rule announced in Padilla is not substantive because it does not place any conduct or person “beyond the State’s power to punish.”[152]Padilla is a procedural rule, so Teague’s first exception does not apply.[153]

C. The Second Teague Exception

            The second Teague exception applies to a new procedural “rule [that] is a watershed rule of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding.”[154]  To meet this watershed standard, “a new rule (1) must be necessary to prevent an impermissibly large risk of an inaccurate conviction, and (2) must alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding.”[155]  This bedrock procedural element must be one that was previously unrecognized.[156]  In the entire history of Teague, no new rule has met the second exception.[157]  In fact, the only case that the Supreme Court has stated could meet the standard of Teague’s second exception is Gideon.[158]

1.  Comparing Padilla and Gideon

            To properly analyze Padilla under the second Teague exception, it must first be compared with Gideon—the only case the Supreme Court has stated would meet the second Teague exception.  

a.  Gideon
            In Gideon, Clarence E. Gideon was charged with breaking and entering, a felony in Florida.[159]  As an indigent defendant, Gideon requested that the state provide him with counsel, which the trial judge denied.[160]  He later filed a habeas corpus petition with the Florida Supreme Court on the grounds that, because the trial court refused to appoint him counsel, it denied him of his rights protected under the Constitution and the Bill of Rights.[161]  The Florida Supreme Court denied all relief, and the United States Supreme Court granted certiorari.[162]

            The Supreme Court had to decide if its holding in Betts v. Brady[163] was still valid and should be applied to Gideon, or if it should overturn Betts.[164]  The Supreme Court decided Gideon based on the Sixth Amendment’s guarantee of counsel being a right that “is ‘fundamental and essential to a fair trial’ [and] is made obligatory upon the States by the Fourteenth Amendment.”[165]  The Supreme Court relied upon its earlier precedent in Johnson v. Zerbst[166]

[The assistance of counsel] is one of the safeguards of the Sixth Amendment deemed necessary to insure fundamental human rights of life and liberty . . . . The Sixth Amendment stands as a constant admonition that if the constitutional safeguards it provides be lost, justice will not ‘still be done.’[167]


In deciding Gideon, the Supreme Court overturned Betts and made it clear that the Sixth Amendment’s guarantee of counsel was fundamental and essential to a fair trial.[168]

b. Padilla

            In Padilla, the Supreme Court once again faced a Sixth Amendment issue when the Kentucky Supreme Court held that “collateral consequences are outside the scope of representation required by the Sixth Amendment, and therefore the failure of defense counsel to advise the defendant of possible deportation consequences is not cognizable as a claim for ineffective assistance of counsel” when the defendant pled guilty.[169]  The United States Supreme Court disagreed and held that “counsel must inform her client whether his plea carries a risk of deportation.”[170]

In deciding Padilla, the Supreme Court looked to the Sixth Amendment.[171]   It found that despite being a collateral consequence of conviction, deportation is nonetheless such a severe and nearly automatic punishment that “advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel.”[172]  The Supreme Court noted that it had long recognized that the Sixth Amendment required counsel to be effective.[173]  The Court further noted that “the negotiation of a plea bargain is a critical phase of litigation for purposes of the Sixth Amendment.”[174]  Finally, the Court stated that the Constitution requires it “to ensure that no criminal defendant—whether a citizen or not—is left to the ‘mercies of incompetent counsel.’”[175]

c.  Comparison

            The Supreme Court decided both Padilla and Gideon under the ambit of the Sixth Amendment.[176]  Each also applied to a whole class of people, Padilla to immigrants and Gideon to indigents.[177]  The Supreme Court noted in Gideon that the assistance of counsel is such an essential element of the Sixth Amendment, that if the Sixth Amendment is not upheld, justice is not done.[178]  In Padilla, the Supreme Court noted that the Sixth Amendment’s requirement for effective assistance of counsel included the critical phase of negotiating a plea bargain.[179]  It stated that because deportation is such an extreme punishment, essentially amounting to banishment or exile, the need for effective assistance of counsel is even more critical.[180]  Finally, just as it found the appointment of counsel in Gideon restored “constitutional principles established to achieve a fair system of justice,”[181] the Supreme Court found in Padilla that it was the Court’s “responsibility under the Constitution to ensure” immigrants have effective assistance of counsel as prescribed by the Sixth Amendment.[182]

2.  Differentiating Padilla from the Other Teague Rulings

            As mentioned earlier, the Supreme Court has made fourteen decisions regarding the second Teagueexception, though not once did the Court hold that the exception applied.[183]  For Padilla to be covered by the second Teague exception, it must not only show that it is similar to Gideon, but it must show why it stands out from the other fourteen rulings and meets the watershed rule requirement.  These fourteen Teague rulings will be reviewed by the ruling classification provided earlier in the background— sentencing rules; police interrogations rule; jury instruction on a mental state element rule; a new right to appeal rule; jury selection rule; and confrontation clause rule.[184]

a.  Sentencing Rules

            The Supreme Court has applied Teague analysis to more sentencing rule cases than to any other group of cases.[185]  The sentencing rule cases dealt with new rules that affected the sentencing portion of the trial, which necessarily occurs post-conviction.[186]  The second Teague exception is based on Justice Harlan’s view in Desist that accuracy in the process is critical to ensure that the innocent are not convicted, and his view inMackey that “the procedure must implicate the fundamental fairness of the trial.”[187]  A post-conviction sentencing rule may meet the fairness element of the test, but it does not meet the accuracy element, as it applies after conviction and only addresses the sentencing phase of a trial.[188]

            Unlike the post-conviction sentencing rules, the Padilla rule focuses on the effectiveness of counsel at the pleading stage.[189]  To meet the watershed requirement of Teague, a new rule must “prevent[] an impermissibly large risk of an inaccurate conviction.”[190]  A sentencing rule can never meet this requirement because it is post-conviction by its very nature.  The Padilla rule, on the other hand, deals with the effective assistance of counsel at the pleading stage of a trial, which the Supreme Court considers “a critical phase of litigation for the purposes of the Sixth Amendment.”[191]  Because the Padilla rule applies before the conviction phase of a trial, this new rule, unlike the sentencing rules, may prevent an inaccurate conviction.[192]

b.  Police Interrogation Rules

            In Arizona v. Roberson,[193] the Supreme Court’s police interrogation rule “barr[ed] police-initiated interrogation following a suspect’s request for counsel in a separate investigation.”[194]  Unlike the sentencing rules, this new rule impacted the trial phase because it applied to pre-trial police interrogations.  However, the second Teague exception requires that “the likelihood of an accurate conviction [be] seriously diminished.”[195]  In Butler, the Supreme Court noted that instead of diminishing the accuracy of the conviction, the violation of this specific rule actually increased the accuracy and thus did not meet the second Teague exception.[196]

            Padilla is distinguishable from the police interrogation rule because the police rule did not meet the standard for fairness and accuracy under the second Teague exception.[197]  The Supreme Court noted in the police interrogation rule that in lieu of decreasing the accuracy, violation of the rule actually increased the accuracy of a conviction.[198]  In Padilla, on the other hand, the Supreme Court noted that the pleading stage has a major impact on the fairness of the outcome of the trial for a noncitizen facing the risk of deportation.[199]  The practical impact of Padilla is to encourage defendants who might in ignorance otherwise accept a plea deal (the sentence for which could be a short sentence or time-served) to demand trial on the merits, theoretically increasing the accuracy of the resulting determination. In contrast to police interrogation rules,Padilla forces a more extensive, and thus more accurate result.

c.  Jury Instruction on a Mental State Element Rule

            In Gilmore, the Supreme Court had to decide whether a new rule stating that when a court gives:

murder instructions preced[ing] the voluntary-manslaughter instructions, but did not expressly direct the jury that it could not return a murder conviction if it found that the defendant possessed a mitigating mental state, it was possible for a jury to find that a defendant was guilty of murder without even considering whether he was entitled to a voluntary-manslaughter conviction instead.[200]


In this specific case, the defendant admitted his guilt, but argued that he was guilty only of manslaughter instead of murder.[201]  After determining that it was a new rule and did not meet the first Teague exception, the Supreme Court found that even though the jury instructions may have been confusing, the new rule did not “implicate the fundamental fairness and accuracy of the criminal proceeding” and the second Teague exception did not apply.[202]

            Padilla on the other hand, did have a major impact on fairness, since the outcome in his trial could determine whether he was deported or not—a punishment the Supreme Court equated to exile.[203]Additionally, the Supreme Court in Padilla viewed “the negotiation of [his] plea bargain [as] a critical phase of litigation”[204] striking at the heart of the second Teague exception since it created an “impermissibly large risk for an inaccurate conviction.”[205]

d.  New Right to Appeal Rule

            In Goeke, the respondent had been convicted of killing her husband, had fled, and was re-captured.[206]   Her appeal was dismissed under the state’s fugitive-dismissal rule, which allowed the court to dismiss an appeal of someone who tries to flee justice.[207]  The Eighth Circuit held that “dismissal of an appeal where preappeal flight had no adverse effect on the appellate process violated the defendant's substantive rights under the Fourteenth Amendment.”[208]  The Supreme Court held that this was a new rule and that it did not meet the second Teague exception because due process does not require a state to provide any sort of appellate process.[209]

            Padilla is distinguishable from Goeke in that states are not required by due process to provide an appellate process under the Constitution.[210]  In Padilla, however, the Supreme Court noted that “the advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment” and would thus be eligible for review as a new rule under Teague.[211]

e.  Jury Selection Rule

            In Teague itself, the petitioner contended “that the Sixth Amendment’s fair cross section requirement applies to the petit jury.”[212]  The petitioner asked the Supreme Court to announce a new rule extending its decision in Taylor v. Louisiana[213] beyond the jury venire.[214]  The Supreme Court determined that because its decision created a new rule, to apply retroactively the rule had to meet the second exception (which the Court subsequently fleshed out).[215]  Applying its new Teague analysis to the Taylor rule, it determined that the rule proposed by the petitioner “would be a far cry from the kind of absolute prerequisite to fundamental fairness that is ‘implicit in the concept of ordered liberty.’”[216]

            Padilla is distinguishable from the jury selection rule because the jury selection rule did not meet the fairness element of the second Teague exception.[217]  The Supreme Court, on the other hand, noted in Padillathat, because the penalty of deportation was so severe, it “only underscores how critical it is for counsel to inform her noncitizen client that he faces a risk of deportation”[218] and “long standing Sixth Amendmentprecedents” demanded that the Supreme Court ensure they have competent counsel.[219]

f.  Confrontation Clause Rule

            In Whorton, the defendant was convicted of sexually assaulting his step-daughter.[220]  At the trial, the victim was unable to testify due to distress, so the court allowed the mother and a police officer to testify to out of court statements made by the child.[221]  The defendant claimed that the court’s action violated the Confrontation Clause, even though the law allowed such hearsay testimony at the time.[222] The Supreme Court had to determine if its ruling in Crawford that “[t]estimonial statements of witnesses absent from trial are admissible only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine [the witness]”[223]  applied retroactively or not.

            The Supreme Court found the Crawford rule to be a new procedural rule, so it would only apply retroactively if it met the second Teague exception.[224]  The Court noted that it had had never found a rule that met the watershed requirement of the second Teague exception, including the rule from Crawford.[225]  The Crawford rule did not meet the accuracy part of the second Teague exception because it had to do more than just improve the accuracy of a trial; it had “to prevent an impermissibly large risk of an inaccurate conviction.”[226]  Once again, the Supreme Court pointed to Gideon as the standard of such a risk and Crawforddid not meet that standard.[227]  Additionally, “the Crawford rule did not alter [the Court’s] understanding of the bedrock procedural elements essential to the fairness of a proceeding.”[228]  The Supreme Court noted that while Crawford was an important rule, it did not have the same “profound and ‘sweeping’ change[s]” that Gideondid so it did not meet the second element of the exception.[229]

            Unlike the confrontation clause case, Padilla meets both the accuracy requirement and the alteration of “the bedrock procedural elements” of fairness requirement of Teague.[230]  The confrontation clause case only dealt with the inadmissibility of hearsay evidence and the Supreme Court held it did not necessarily prevent “an impermissibly large risk” of inaccurate conviction, but prevented a mere risk of inaccurate conviction.[231]  InPadilla, however, the Supreme Court noted that since the plea bargain phase is such a critical phase of litigation and because the risk of deportation is so severe a punishment,[232] it had the responsibility to ensure that an LPR had effective counsel who informed him of deportation risks when pleading, because an error in the plea bargain phase could be equated to “an ‘impermissibly large’ risk of an inaccurate conviction.”[233]  In addition,Padilla is distinguishable from the confrontation clause rule because Padilla was viewed as “mark[ing] a major upheaval in Sixth Amendment law.”[234]

3.  Watershed

            Does Padilla meet the watershed requirement of the second Teague exception?  Padilla bears closer similarity to Gideon than any of the other Teague cases that the Supreme Court has reviewed.[235]  Padillameets both elements of the second Teague exception in that it “prevent[s] an impermissibly large risk of an inaccurate conviction,” and it “alter[s] our understanding of the bedrock procedural elements essential to the fairness of a proceeding.”[236]  The Supreme Court, in noting the severity of deportation and the importance of the plea bargaining stage under the Sixth Amendment’s requirement for effective assistance of counsel, shows how the Padilla rule prevents the large risk of an inaccurate conviction.[237]  Additionally, Supreme Court Justice Alito, in his concurring opinion, underscores how the Padilla decision made a “major upheaval” to the understanding of the Sixth Amendment law[238]—one of “the bedrock procedural elements essential to the fairness of a proceeding.”[239]  Most importantly, Padilla stands up to the Palko test that Justice Harlan pointed to as the appropriate guide to use in determining which cases meet the second exception.[240]  The Palko test, which Justice Harlan believed mandated the result in Gideon, now mandates the rule in Padilla.  Under Justice Harlan’s analysis the “Palko [test] more correctly marks the tipping point of finality interests, . . . in terms of divining which new rules should apply on habeas.”[241]  The Padilla rule “prevents an impermissibly large risk of an inaccurate conviction. . .”[242]  The rule also “alter[s] our understanding of the bedrock procedural elements essential to the fairness of a proceeding” because it is a “major upheaval” of the Sixth Amendment[243] making it a procedure that is “implicit in the concept of ordered liberty”[244] and meets the Palko test, the “tipping point of finality interests in determining which new rules should apply on habeas”[245] corpus review.  Thus Padilla, like Gideon, is a watershed rule that meets the second Teague exception and applies retroactively on collateral review.

IV.  Impact

            The Padilla rule could have a direct impact upon two critical areas of the law.  First, it will have a direct impact on immigration law, specifically on cases currently in the criminal system or already decided that involve LPRs.  Additionally, Padilla could signal a shift in allowing LPRs to have a right to counsel for deportation proceedings.[246] The second area of law that Padilla will impact upon is how the Supreme Court will view retroactivity in the future, as the Gideon watershed threshold has finally been met.

A.  Immigration

            What will happen when Padilla is applied retroactively and LPRs are able to attack their guilty plea in a habeas petition?  In its Padilla, the Court tackled this issue directly, noting that “[i]t seems unlikely that our decision today will have a significant effect on those convictions already obtained as the result of plea bargains.”[247]  This may seem unrealistic at first blush when in 2009 over 128,000 noncitizens (both LPRs and illegal immigrants) were deported for criminal convictions and another 95,000 noncitizens were in prison.[248]  The Supreme Court foresaw this issue in its Padilla decision, and noted that while “[p]leas account for 95% of all criminal convictions . . . . they account for only approximately 30% of the habeas petitions filed.”[249]  The Court felt that the risk of opening a floodgate of habeas petitions was offset by petitioners not wanting to lose the deal they had already struck which could result in a “less favorable outcome.”[250]  Additionally, the Court noted that many states now either use plea forms that “provide notice[] of possible immigration consequences” or have passed laws that “require the trial courts to advise defendants of possible  immigration consequences.”[251]  Finally, the Court felt that the requirements of Strickland, which had been in place for over twenty-five years and required effective counsel, would be a large hurdle for most Padilla claims to overcome.[252]

            More critically, retroactive application of Padilla could potentially provide LPRs with the right to deportation counsel.[253]  Immigrants (both LPRs and illegal) have never had any right to counsel in deportation proceedings until Padilla.[254]  Though Padilla does not directly provide an LPR the right to counsel in deportation proceedings, the fact that the Supreme Court recognized “the seriousness of deportation as a consequence of a criminal plea” and gave LPRs a constitutional right to competent counsel regarding the risk of deportation in criminal proceedings is a great step forward.[255]  However, this ruling also created an interesting dichotomy, in that those involved in criminal proceedings have a constitutional right to effective counsel regarding the criminal behavioral impact on deportation but, because deportation is a civil issue, other LPRs facing deportation outside of criminal proceedings do not have any constitutional right to counsel at all.[256]  Padilla could be the beginning of a trend towards granting those constitutional rights to all LPRs in deportation proceedings.[257]  Once the Supreme Court makes Padilla retroactive, it will become the Gideon of immigration law.[258]

B.  Retroactivity

            The unknown impact that a retroactive application of Padilla as a new rule based on the second Teagueexception is on retroactivity itself.  Courts and scholars, in most cases, have been quick to state that Padilla is a new rule and the second Teague exception does not apply.[259]  But what if they are wrong?  What if this is the watershed case that meets the standard of Gideon?  If it is, and the Supreme Court states that it meets the second Teague exception, will this open the door to more such exceptions, or a change to the way the Supreme Court views retroactivity?  Is the Supreme Court in a position to make another shift on retroactivity as it did withStovall and then Teague?  Or is Padilla the rare Gideon that will come up under Teague but not have any direct impact on retroactivity outside its own area of the law?  That is a question that only the Supreme Court can answer.

V.  Conclusion

            The three Circuit Courts that have had a chance to make a decision based upon the new Padilla rule have each erred.  As demonstrated above, Padilla meets the standard of the second Teague exception (as exemplified by Gideon), and applies retroactively.  Padilla, like Gideon, extended Sixth Amendment protections to a whole new class of people, generated a watershed development in both criminal and immigration law, and will prevent inaccurate convictions and the wrongful deportation of LPRs.  The long-term impact of the Supreme Court declaring Padilla a new rule that applies retroactively could have far reaching implications in immigration law.  The extension of constitutional protections, especially the right to counsel, to LPRs in deportation could bePadilla’s most long-lasting and positive impact.  This extension could help change the current climate of deportation and exile that the Supreme Court noted exists in its Padilla opinion.  What the decision will do to retroactivity, and how it will affect future rules being viewed under the second Teague exception is uncertain.  Scholars and courts have not asked that question, assuming that after more than twenty years the Supreme Court will not find an exception to Teague.  However, Padilla meets that exception, potentially opening up once again the discussion on when retroactivity should apply, which could play out over many future decisions by the Supreme Court.  What we do know for now is that the question of retroactivity is back, and it has a new name:Padilla.