Since law school, when I clerked for a solo who did Pennsylvania Post Conviction Relief Act (PCRA) work on a regular basis, I have repeatedly banged my head against the wall at how frustrating-to-impossible it is for a client to get relief.
Most of the time (about 99%), the sole issue in a PCRA petition is whether trial counsel rendered ineffective assistance of counsel — in other words, the defendant lost because the lawyer did a lousy job. Admittedly, very few of the PCRA petitions that are reviewed on the merits are meritorious — thankfully most of us know what we are doing — but the statute actually makes it nearly impossible procedurally to get to the merits, even when the lawyer did a bad job.
I had a client who is an immigrant. He pled guilty to a deportable offense in 2009, without ever having been advised about the potential immigration consequences. In 2010, The Supreme Court of the United States held in Padila v. Kentucky that criminal defense attorneys who do not give immigration advice are not providing constitutionally effective assistance — at a minimum, any competent defense lawyer should be able to advise a client whether his offense is deportable. My client fell exactly into this situation, and should get the benefit of the ruling, right? Maybe not.
His plea was entered in 2009, and the PCRA says:
“Any petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final…”
My guy pled In January, 2009, the conviction became final in February, 2009 (after the period to file an appeal ran), so the petition timed out in February, 2010.
But there is an exception!
“unless the petition alleges and the petitioner proves that… the right asserted is a constitutional right that was recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania after the time period provided in this section and has been held by that court to apply retroactively.”
So, if this is a new rule announced by either SCOTUS or SCOPA, and “held by that court to apply retroactively,” we win!
Not so fast… Let’s unpack that “exception” a bit.
- …the right asserted is a constitutional right that was recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania after the time period provided…
Padilla held that criminal defense attorneys have an affirmative obligation to advise their clients of the possibility of adverse immigration consequences that may follow a conviction. That is a new duty we all must adhere to — but is it a new right? Our mid-level appellate court, the Superior Court of Pennsylvania held that is not.
In Commonwealth v. Garcia, the Superior Court analyzed Padilla and found that it is not a new right, merely the application of an existing right (the right to effective assistance of counsel under Strickland) to a new set of facts.
We conclude that the United States Supreme Court’s Opinion in Padilla did not recognize a new “constitutional right” as envisioned by our Legislature in enacting Subsection 9545(b)(1)(iii). Rather, Padilla clarified and refined the scope of a criminal defendant’s long-standing constitutional right to the effective assistance of counsel during the guilty plea process. Because Padilla effectively overruled the result of the “collateral consequences” label that the Pennsylvania courts have given to the risk of deportation, we recognize the temptation to conclude that it announces a new constitutional right. However, we conclude that the United States Supreme Court’s application of Strickland to a new set of facts (counsel’s advice regarding the risk of deportation) and its resulting holdings based on current professional standards and expectations, did not establish new constitutional rights. Simply put, the “constitutional right” at issue in Padilla, i.e., the right to effective assistance of counsel during the guilty plea process, is not “new;” but rather, was defined in scope under the well-established ambit of Strickland. As such, Appellant’s attempt to invoke the after-recognized constitutional right exception to the PCRA timeliness requirements by specifically relying upon Padilla can afford Appellant no relief.
So… Padilla did not create a new right, even though (as the Garcia court noted elsewhere in the opinion) Padilla abrogated longstanding precedent here that we had no duty to give immigration advise at all. In other words, because he should have had it then, he can’t have it now.
Moving on to the next clause in that statute….
- and has been held by that court…
So, does this mean that the exception only applies if SCOTUS holds that the new right is retroactive? What if a US Court of Appeals rules that Padilla is retroactive it won’t count? Because the Third Circuit has ruled that it is.
Is my client’s petition not ripe yet because SCOTUS hasn’t yet ruled on Padilla retroactivity? Which brings me directly to the most frustrating thing of all…
So a new rule is retroactive if announced by SCOTUS and “held by that court to apply retroactively.” But here is the weirdest, craziest, most ridiculous thing about the language of the PCRA: Old rules are retroactive; new rules are not.
In Teague v. Lane, SCOTUS announced the framework for deciding whether constitutional rulings apply retroactively or not. The split the criminal procedure world into two camps — old rules, and new rules. Old rules are automatically retroactive and do not need to be specifically announced as such.
The Third Circuit case I linked to above analyzed Padilla through Teague and held that because the Court applied Strickland to a new set of facts, it is an old rule and therefore retroactive.
Remember Garcia, the Superior Court case? That court held that because SCOTUS applied Strickland to a new set of facts, it is an old rule, and therefore not retroactive.
Two courts, two identical analyses, two identical conclusions, and two diametrically opposite rulings.
There are circumstances where truly new rules apply retroactively, but they are rare — how often do “watershed” rulings come down the pike? I can’t actually think of one off the top of my head.
So, in effect, the PCRA says you have one year to file your claim, unless some high court ruling announces a new rule, and that same court says it’s retroactive, which the high court won’t do for new rules. If the ruling applies existing law to new facts (which, frankly, is how the common law works), it is not a new rule — you were entitled to that right all along, sir.
Which is why you can’t have it now.