Blazing new trails in the law here in Virginia. It’s been a year since the Padilla v. Kentucky decision of the US Supreme Court, which found that defense lawyers have an affirmative duty to warn their non-citizen clients about the immigration consequences of their plea. And state courts continue to wrestle with how to incorporate the ruling into their laws dealing with postconviction remedies.

Shouldn’t Padilla be enough? Shouldn’t the US Supreme Court’s words be binding on all courts? Well, yes and no. It is true that no court can, after the decision, state that defense lawyers do not have to advise their clients. What’s not clear is whether the rule is retroactive, ie, does it apply to defendants who pled guilty before the Padilla decision, and also whether the state court’s postconviction laws provide a way to reopen the conviction.

 In Virginia, there were two cases on appeal to the Virginia Supreme Court – Commonwealth v. Chan and Commonwealth v. Morris. In these two cases, the defense lawyers had failed to provide correct information regarding the immigration consequences of their pleas. Once put in removal proceedings, they filed writs of coram nobis (sometimes called coram vobis) – an ancient common law writ that was meant to correct errors in a proceeding which, if known, would have prevented the judgment from being rendered. For example, suppose a court adjudges a defendant guilty and sentences him, and several years later it is discovered that the defendant was only 16 years old and hence a minor. If that fact was known at the time, it would have prevented rendition of the judgment. The writ of coram nobis exists to correct these types of errors.

On January 13, 2011, the Virginia Supreme Court sharply limited the usability of the writ for cases of misadvice of immigration consequences. The “error” here is the recognition of the fact that the attorney did a competent job. After Padilla, if there was no warning of immigration consequences, it was ineffective assistance of counsel as a matter of law. Would a court render judgment if it knew that the attorney didn’t represent his client? Of course not. Therefore, you would think that coram nobis is available to correct the error. The Virginia Supreme Court didn’t think so. In its consolidated decision, it ruled that coram nobis is not available for these types of errors.

 There are a host of problems with a decision like this, not the least of which is the fact that it does an end run around Padilla, effectively stating, with regard to a conviction tainted by misadvice on immigration consequences, that “we agree that it’s broken, but we have no tool to fix it.” The decision acts as a complete bar to relief. Postconviction remedies in Virginia are usually limited to appeals, motions for reconsideration, or writs of habeus corpus. After that, it becomes very difficult – if not impossible – to challenge a conviction. It is certainly good policy to make convictions “sticky” – they should not be able to be easily overturned. But surely the US Supreme Court ruling that a conviction is unconstitutional should be reason enough to reopen a conviction and fix it. Unfortunately, the Virginia Supreme Court found reliance on Padilla “misplaced,” yet somehow quoted its own ruling to declare that coram nobis is not available. The decision lets a constitutional error remain not only uncorrected, but uncorrectable.

On January 31, 2011 a strange thing happened. A Loudoun County, Virginia district court judge wrote an opinion in Commonwealth v. Cabrera which defied the Virginia Supreme Court and found that coram nobis was available to correct such errors. There was a fascinating discussion on the principle of stare decisis, a legal doctrine that says that courts are bound to follow previous decisions of other courts, especially higher courts. But the doctrine is not absolute. In the Cabrera decision, Judge Worcester found that if a decision is at odds with longstanding precedent and creates confusion, a court is not bound to follow it. Moreover, there is the matter that the US Supreme Court is superior to the Virginia Supreme Court. It calls into question the Supremacy Clause, a part of the US Constitution that says that it is the supreme law of the land. Judges are bound by oath to uphold the constitution, not follow stare decisis. Courts can get it wrong. The right decision should ultimately prevail. And even in the doctrine of stare decisis, if a decision is “wrong,” then it takes time to “stick”- in other words, there must be an element of societal reliance built up to such an extent that to unravel the bad decision would do more harm than good.

Applying all these factors, it is clear that Virginia Supreme Court got it wrong.

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