NO (CONSOL. WITH NO ) SUPREME COURT OF THE STATE OF WASHINGTON IN RE PERSONAL RESTRAINT PETITIONS OF

Transcription

1 NO (CONSOL. WITH NO ) SUPREME COURT OF THE STATE OF WASHINGTON IN RE PERSONAL RESTRAINT PETITIONS OF MUHAMMADOU JAGANA and YUNG-CHEN TSAI, Petitioners. LAW PROFESSORS AMICUS BRIEF IN SUPPORT OF PETITIONERS Professor Christopher N. Lasch, Colo. Registration #42241 University of Denver Sturm College of Law 2255 East Evans Avenue, Suite 335 Denver, CO Tel. (203) Professor John A. Strait, WSBA #4776 Seattle University School of Law th Avenue Seattle, WA Tel. (206) Counsel for Amici Curiae

2 TABLE OF CONTENTS TABLE OF CONTENTS... i TABLE OF AUTHORITIES... iii IDENTITY AND INTEREST OF THE AMICI...1 STATEMENT OF THE CASE...1 ISSUE PRESENTED...1 ARGUMENT...2 I. APPLYING THE TEAGUE ANTI-REDRESS RULE TO A CLAIM OF TRIAL COUNSEL INEFFECTIVENESS PROPERLY BROUGHT FOR THE FIRST TIME IN A PERSONAL RESTRAINT PETITION RUNS CONTRARY TO THE PRINCIPLES UNDERLYING THE FEDERAL REDRESSABILITY REGIME....3 A. The federal redressability rules are premised on state courts providing an initial forum for applying and developing federal constitutional law....3 B. The federal redressability rules require unrestricted review of a federal constitutional claim when it is first raised in state court proceedings....8 C. Ineffective assistance of trial counsel claims do not raise the finality concerns served by Teague, because they are properly brought for the first time in PRP proceedings Washington has finality-serving doctrines that channel claims to the right forum at the right time Ineffective assistance of counsel is properly raised for initial adjudication in PRP proceedings i

3 D. The United States Supreme Court has recognized that for purposes of finality, ineffectiveness claims properly brought for the first time on collateral review should be treated as though on direct appeal II. BECAUSE FINALITY IS ADEQUATELY SERVED BY PROTECTIONS EMBODIED IN THE SUBSTANTIVE LAW GOVERNING INEFFECTIVE ASSISTANCE CLAIMS, AND IS THEREFORE OUTWEIGHED BY THE INTEREST IN PROVIDING A FORUM FOR SIGNIFICANT CONSTITUTIONAL CLAIMS, SUFFICIENT REASONS EXIST TO APPLY PADILLA RETROACTIVELY CONCLUSION...19 ii

4 Cases TABLE OF AUTHORITIES Washington In re Restraint of Adolph, 170 Wn.2d 556, 243 P.3d 540 (2010)...11 In re Restraint of Brockie, 178 Wn.2d 532, 309 P.3d 502 (2013)...11 In re Restraint of Cook, 114 Wn. 2d 802, 792 P.2d 506 (1990)...12 In re Restraint of Crace, 174 Wn.2d 835, 280 P.3d 1002 (2012)...19 In re Restraint of Gentry, 137 Wn.2d 378, 972 P.2d 1250 (1999)...11 In re Restraint of Gentry, 179 Wn. 2d 614, 316 P.3d 1020 (2014)....2, 9 In re Restraint of Haghighi, 178 Wn.2d 435, 309 P.3d 459 (2013)...9 In re Restraint of Hagler, 97 Wn.2d 818, 650 P.2d 1103 (1982)...12, 16 In re Restraint of Stockwell, 179 Wn.2d 588, 316 P.3d 1007 (2014)...9, 19 State v. Grier, 171 Wn.2d 17, 246 P.3d 1260 (2011)...13 State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995)...15 United States Supreme Court Arizona v. Evans, 514 U.S. 1, 115 S.Ct. 1185, 131 L.Ed.2d 34 (1995)...20 Danforth v. Minnesota, 552 U.S. 264, 128 S.Ct. 1029, 169 L.Ed.2d 859 (2008)...2, 4, 5, 8 Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969)...4, 5 Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987)... passim Mackey v. United States, 401 U.S. 667, 91 S.Ct. 117, 128 L.Ed.2d 404 (1971)...4, 5, 6, 7 Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803)...19 Martinez v. Ryan, --- U.S. ---, 132 S. Ct. 1309, 182 L.Ed.2d 272 (2012)...10, 14, 15 Massaro v. United States, 538 U.S. 500, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003)...13 Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010)... passim Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)... passim Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989)... passim iii

5 Trevino v. Thaler, U.S., 133 S.Ct. 1911, 185 L.Ed.2d 1044 (2013)...15 Other Federal Cases Woods v. Sinclair, , 2014 WL at *21 (9th Cir. Aug. 25, 2014)...15 Constitutional Provisions U.S. Const. Art. VI, cl Rules of Procedure RCW , 3, 9 Secondary Sources Paul Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv. L. Rev. 441 (1963)...6, 7 Henry Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142 (1970)...6, 7, 13 Christopher N. Lasch, Redress in State Postconviction Proceedings for Ineffective Crimmigration Counsel, 63 DePaul L. Rev. 959 (2014)...12 iv

6 IDENTITY AND INTEREST OF THE AMICI Amici curiae are Washington legal scholars who teach, research and write about criminal law, criminal procedure, immigration law, constitutional law, tribal criminal law, and access to justice. As teachers, practitioners, and scholars, amici have an interest in the proper resolution of the issue addressed here. Amici include clinical faculty who, in addition to lecturing and researching, are actively engaged in supervising law students in the practice of law in Washington. STATEMENT OF THE CASE Amici adopt the parties statements and address only a legal issue. ISSUE PRESENTED The parties agree that the Supreme Court s decision in Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), bringing within the scope of the Sixth Amendment s right to effective assistance of counsel the right to be adequately advised by counsel as to the immigration consequences of a criminal conviction, marked a significant change in the law. The significant new rule announced in Padilla will be retroactively applied to the personal restraint petitions of Mr. Jagana and Mr. Tsai if sufficient reasons exist. RCW (6). This Court has previously, in other contexts, used the test announced in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 1

7 334 (1989), to determine whether sufficient reasons exist to apply new rules retroactively. See In re Restraint of Gentry, 179 Wn.2d 614, 627, 316 P.3d 1020 (2014). The threshold question for this Court, then, is whether the Teague test is appropriate for determining whether sufficient reasons exist to apply the Padilla rule retroactively. Amici suggest the Court should answer this question in the negative and then consider, independent of the Teague analysis, whether sufficient reasons exist to apply Padilla retroactively. Amici suggest sufficient reasons exist. ARGUMENT In Danforth v. Minnesota, 552 U.S. 264, 128 S.Ct. 1029, 169 L.Ed.2d 859 (2008), the Supreme Court explained that because the antiredress 1 rule of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), was fashioned to address comity and finality concerns specific to federal habeas review of state-court criminal judgments, Teague does not bind state postconviction courts. This Court must now determine whether, under Washington law, Teague is a useful guide in determining the availability of redress to a litigant who properly raises for the first time in a personal restraint petition (PRP) his claim of 1 The Court explained that redressability, rather than retroactivity, is the appropriate term because the use of retroactivity terminology falsely impl[ies] that the right at issue was not in existence prior to the date the new rule was announced. Danforth, 552 U.S. 271 & n.5. The question Teague addresses is whether a violation of the new rule prior to its announcement is subject to redress in a particular proceeding. Id. 2

8 constitutionally ineffective assistance of trial counsel. The principles underlying Teague compel this Court to depart from Teague here. Indeed, those principles would be undermined by Teague s application to claims of ineffectiveness properly brought for the first time in PRP proceedings. After determining Teague is inapplicable here, the Court must determine whether sufficient reasons exist, RCW (6), to apply Padilla retroactively. Because the test for ineffectiveness adequately addresses the finality concerns served by an anti-retroactivity rule, this Court should conclude sufficient reasons exist. The finality interests that would ordinarily weigh against providing redress, having been thoroughly addressed by the ineffectiveness standard, should yield to Washington s state interest in providing a forum for constitutional litigation. I. APPLYING THE TEAGUE ANTI-REDRESS RULE TO A CLAIM OF TRIAL COUNSEL INEFFECTIVENESS PROPERLY BROUGHT FOR THE FIRST TIME IN A PRP RUNS CONTRARY TO THE PRINCIPLES UNDERLYING THE FEDERAL REDRESSABILITY REGIME. A. The federal redressability rules are premised on state courts providing an initial forum for applying and developing federal constitutional law. The Supreme Court s rules for deciding whether a litigant may obtain redress for the violation of a newly announced constitutional rule stem from two seminal decisions. Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987), established a rule of full redressability 3

9 in proceedings on direct review, and Teague v. Lane, supra, established a rule of non-redressability (with two narrow exceptions not implicated here) in federal habeas corpus proceedings to review a state-court criminal conviction. The roots of the Court s redressability rules lie in two influential opinions of Justice Harlan. Desist v. United States, 394 U.S. 244, 257, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969) (Harlan, J., dissenting); Mackey v. United States, 401 U.S. 667, 675, 91 S.Ct. 117, 128 L.Ed.2d 404 (1971) (Harlan, J., concurring in judgments in part and dissenting in part); see Danforth, 552 U.S (noting that Justice Harlan s views were adopted in Griffith and Teague). Together, the Griffith and Teague rules establish a regime that not only accords state courts the opportunity and responsibility for developing federal constitutional law, but also restrains federal courts from undermining the constitutional decisionmaking of state courts by imposing later-developed constitutional rules where the state courts have already rendered a constitutional decision. Griffith s rule of redressability for cases on direct review was grounded in Justice Harlan s conclusion that failure to apply a newly declared constitutional rule to criminal cases pending on direct review violates basic norms of constitutional adjudication. Griffith, 479 U.S. at 322. In particular, Justice Harlan had feared that allowing new rules to 4

10 justify redress only prospectively would eliminate the obligation of lower courts to decide claims and eviscerate their responsibility for developing or interpreting the Constitution. Mackey, 401 U.S. at 680. Teague s rule of non-redressability for cases on federal habeas corpus review similarly stemmed from Justice Harlan s belief that state courts should be the first locus for constitutional adjudication. The Teague rule reflects Justice Harlan s concerns for comity and respect for the finality of state-court judgments, see Danforth, 552 U.S. at 279, which were premised on the notion that a federal habeas court reviews claims that have already been adjudicated in state court. Justice Harlan recognized that relitigation of constitutional issues in federal habeas proceedings might serve a deterrence function, Desist, 394 U.S. at , forcing trial and appellate courts in both the federal and state system to toe the constitutional mark. Mackey, 401 U.S. at 687. But this function might be adequately served (and tempered by comity), Justice Harlan believed, by limiting federal habeas courts to applying constitutional rules in effect at the time of the state-court adjudication. Id. Teague is meant to accommodate the understandabl[e] frustra[tion] of state courts that faithfully apply existing constitutional law only to have a federal court discover, during a [habeas] proceeding, new constitutional commands. Teague, 489 U.S. at 310 (citations omitted). Comity was 5

11 thus deployed in Teague to protect the ability of state courts to adjudicate federal constitutional issues and to incentivize them to do so faithfully. The finality interest served by Teague was similarly premised on an initial adjudication of constitutional claims in state court. Justice Harlan relied on articles by Harvard law professor Paul Bator and by Second Circuit Judge Henry Friendly discussing the finality interests implicated by relitigating claims on collateral review. Mackey, 401 U.S. at 690 (citing Paul Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv. L. Rev. 441 (1963) and Henry Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142, (1970)). Importantly, neither Bator nor Friendly embraced finality to curtail collateral review without qualification. Both recognized the existence of general categories where the first go-around should not count where constitutional claims were not in fact subject to litigation on direct review. Bator, 76 Harv. L. Rev. at 454; Friendly,.38 U. Chi. L. Rev. at 152 (explicitly excepting from finality s ambit on collateral attack constitutional claims, the factual bases of which are outside the record and therefore not subject to consideration and review on appeal ). Indeed both suggested that the absence of a forum for claims which could not fairly be raised at all until after final 6

12 judgment could amount to a due process violation. Bator, 76 Harv. L. Rev. at ; Friendly,. 38 U. Chi. L. Rev. at 168. Bator explicitly extolled the capacity of state-court judges to determine federal constitutional issues. [D]eciding federal questions is an intrinsic part of the business of state judges, Bator wrote. 76 Harv. L. Rev. at For Bator, permitting relitigation of constitutional claims anew on federal habeas raised a crucial issue the possible damage done to the inner sense of responsibility, to the pride and conscientiousness, of a state judge in doing what is, after all, under the constitutional scheme a part of his business: the decision of federal questions properly raised in state litigation. Id. at 506. The premise of the Teague rule, then, is the availability of a state forum for adjudicating in the first instance the merits of constitutional issues presented. See Mackey, 401 U.S. at (Harlan, J., dissenting); see also, e.g. Bator, 76 Harv. L. Rev. at 512 (referring to federal questions already adjudicated by state courts and subject to Supreme Court review ). Teague s deference to state courts is premised on state courts faithful discharge of this obligation, and upon the existence of a full round of unrestricted review, as the Griffith rule establishes, in which constitutional innovation is permitted and even required. 7

13 The federalism and comity considerations underlying Teague, of course, are unique to federal habeas review of state convictions, Danforth, 552 U.S. at 279, and need not concern this Court in considering what redressability rules should govern PRP proceedings in Washington. Finality, on the other hand, is implicated in the context of state [postconviction proceedings] as well as federal habeas Id. at 280. Considering the logical underpinnings of Griffith and Teague, even while recognizing the finality interest present in state postconviction proceedings, should cause this Court to reject the application of Teague s anti-redressability rule to the Padilla claims presented here. B. The federal redressability rules require unrestricted review of a federal constitutional claim when it is first raised in state court proceedings. The logic of Griffith (holding that federal constitutional claims must be afforded an unencumbered round of review during which constitutional innovation can occur), and not the logic of Teague (holding that once such an unencumbered review has taken place, innovation in federal habeas corpus proceedings is inconsistent with comity and finality), pertains here. To be sure, PRP proceedings present characteristics of both federal habeas proceedings (governed by Teague) and direct review proceedings (governed by Griffith). On the one hand PRP proceedings, like federal habeas proceedings, are a form of 8

14 collateral review. See, e.g., In re Restraint of Stockwell, 179 Wn.2d 588, 596, 316 P.3d 1007 (2014). To some degree, then, the finality interests at stake in federal habeas corpus proceedings can be present in PRP proceedings. An example occurred in In re Restraint of Gentry, 179 Wn.2d 614, 316 P.3d (2014), in which this Court adhered to Teague s framework to determine whether, under RCW (6), sufficient reasons existed for retroactive application of a constitutional rule in PRP proceedings. In Gentry, the claim raised in PRP proceedings was capable of resolution on direct review, and indeed had been raised on direct review. 179 Wn.2d at (describing prosecutorial misconduct claim raised on direct review). The petitioner in Gentry sought to use PRP proceedings as a forum for relitigation under a new rule that had been created after the conclusion of his direct review proceedings. See id. The finality concerns underlying Teague were therefore fully implicated. See also, e.g., In re Restraint of Haghighi, 178 Wn.2d 435, 309 P.3d 459 (2013) (similarly applying Teague in case where PRP attempted to relitigate direct appeal claim under legal standard announced after conclusion of direct review proceedings). But PRP proceedings, unlike federal habeas proceedings, can also be more akin to direct review proceedings a first forum in which to litigate constitutional claims and develop facts pertaining to those claims. 9

15 Because a claim of trial counsel ineffectiveness typically relies on facts outside the record, a PRP proceeding is the appropriate forum for first raising such a claim. See Sections I(C) and I(D), infra; Martinez v. Ryan, U.S., 132 S.Ct. 1309, 1317, 182 L.Ed.2d 272 (2012) (treating collateral review in which ineffectiveness was properly raised for the first time as the equivalent of a prisoner's direct appeal ). When a litigant properly brings a claim for the first time in state postconviction proceedings, applying a rule designed to address comity and finality concerns present when claims are relitigated on federal habeas review has serious adverse consequences. Teague presumes the existence of a state-court forum for adjudicating constitutional claims, and strives to incentivize state courts to faithfully adjudicate those claims by limiting federal review. See Section I(A), supra. Applied to a claim properly raised for the first time in PRP proceedings, Teague deprives litigants of a forum and denies Washington courts a role in the ongoing dialogue over the scope and substance of federal constitutional rights, defeating the very policy of deference to state courts upon which Teague is premised. C. Ineffective assistance of trial counsel claims do not raise the finality concerns served by Teague, because they are properly brought for the first time in PRP proceedings. Teague s concern with finality cannot be divorced from the precise context in which it was forged. While federal habeas review of state-court 10

16 judgments involves relitigation of claims that have already been subject to one full round of litigation in state court, Washington has rules to ensure PRP proceedings are not a forum for relitigation of constitutional claims. Section I(C)(1), infra. Ineffectiveness claims are properly brought in PRP proceedings for an initial round of adjudication. Section I(C)(2), infra. 1. Washington has finality-serving doctrines that channel claims to the right forum at the right time. Washington has sufficient finality-serving doctrines requiring claims to be raised at the appropriate time and by the appropriate procedural vehicle. Litigants are encouraged to bring constitutional claims at the earliest opportunity. A fundamental principle serving the state s interest in finality is that PRP proceedings are not a substitute for an appeal, and therefore relief for claims that should have been raised on direct review but are presented for the first time in a PRP is narrowly circumscribed. In re Restraint of Brockie, 178 Wn.2d 532, 539, 309 P.3d 502 (2013). Claims actually raised and resolved on direct review are ordinarily not reconsidered in PRP proceedings. In re Restraint of Gentry, 137 Wn.2d 378, 388, 972 P.2d 1250 (1999). Similarly, procedural rules prevent litigants from raising successive personal restraint petitions raising claims in a piecemeal fashion. See, e.g. In re Restraint of Adolph, 170 Wn.2d 556, 565, 243 P.3d 540 (2010). 11

17 The finality concerns underlying Teague are amply, precisely and completely served by these doctrines, which represent a carefully calibrated balance between Washington s interest in finality and its interest in considering serious and potentially valid claims. In re Restraint of Cook, 114 Wn.2d 802, 809, 792 P.2d 506 (1990); see also In re Restraint of Hagler, 97 Wn.2d 818, 826, 650 P.2d 1103 (1982) ( We have recognized that there must be achieved a balance between the interest in error-free trials and the interest in the finality of judgments. ). All of these doctrines may be characterized as serving procedural finality, see Christopher N. Lasch, Redress in State Postconviction Proceedings for Ineffective Crimmigration Counsel, 63 DePaul L. Rev. 959, (2014) (describing procedural finality as a measure pegged to a litigant s opportunity to raise claims for litigation). Teague serves procedural finality as well, see id. at , but its overvaluing of finality once direct review is complete means Teague is not calibrated to consider claims properly raised for the first time in postconviction proceedings, and results in the denial of a forum and elimination of Washington courts participation in shaping federal constitutional doctrine. See Section I(D), infra. 2. Ineffective assistance of counsel is properly raised for initial adjudication in PRP proceedings. 12

18 The claims at issue here that trial counsel was ineffective by failing adequately to advise of the immigration consequences attendant to a guilty plea cannot normally be adjudicated on direct review. The United States Supreme Court has determined that ineffectiveness claims are properly brought for the first time in postconviction proceedings. Massaro v. United States, 538 U.S. 500, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003). Penalizing litigants for not raising ineffectiveness on appeal would not induce litigants to present their contentions to the right tribunal at the right time, but instead would have the opposite effect, creating the risk that defendants would feel compelled to raise the issue before there has been an opportunity fully to develop the factual predicate for the claim. 538 U.S. at 504 (citation omitted). In short, an ineffectiveness claim typically relies on facts that are outside the record and therefore not subject to consideration and review on appeal. Friendly, supra, 38 U. Chi. L. Rev. at 152. And where such a claim cannot be litigated on the evidence within the direct appeal record, this Court has been clear that the claim must be pursued in PRP proceedings. State v. Grier, 171 Wn.2d 17, 29, 246 P.3d 1260 (2011) ( Grier must file a personal restraint petition if she intends to rely on evidence outside of the trial record. ) (citing Strickland v. Washington, 466 U.S. 668, 691, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). 13

19 D. The United States Supreme Court has recognized that for purposes of finality, ineffectiveness claims properly brought for the first time on collateral review should be treated as though on direct appeal. The United States Supreme Court recently recognized, in Martinez v. Ryan, 132 S.Ct. 1309, that in assessing the finality interest accruing to a state-court adjudication challenged on federal habeas review, claims of ineffective assistance brought properly for the first time in post-conviction proceedings should be treated as though pursued on direct review. Martinez concerned the application of the procedural default doctrine to a constitutional claim of trial counsel ineffectiveness. The Court began by noting that the procedural default rule is among those rules, specific to federal habeas corpus review of state-court judgments, designed to ensure that state-court judgments are accorded the finality and respect necessary to preserve the integrity of legal proceedings within our system of federalism. 132 S.Ct. at Nonetheless, finality did not carry the day precisely because Martinez s claim of ineffective trial counsel would have been properly brought for the first time in postconviction proceedings. Where, as here, the initial-review collateral proceeding is the first designated proceeding for a prisoner to raise a claim of ineffective assistance at trial, wrote the Court, the collateral proceeding is in many ways the equivalent of a prisoner's direct appeal as 14

20 to the ineffective-assistance claim. Id. at 1317 (emphasis added). 2 In light of the similarities between direct review proceedings and collateral proceedings presenting the first opportunity to raise a claim, the Court essentially imported the rules for direct review proceedings. Martinez confirms that claims of ineffective assistance like those raised here, that are properly raised for the first time in postconviction proceedings, do not implicate finality any more than claims raised on direct review. Finality, the principal policy consideration that might support application of the Teague rule here, is absent. Instead, Martinez demonstrates that because claims of ineffectiveness are generally encouraged to be brought in postconviction proceedings for the first time, see Section I(C)(2), supra, it is the policy reasons underlying the Griffith rule of retroactivity that are implicated the opportunity to obtain an adjudication on the merits of [the] claims. Martinez, 132 S.Ct. at Id. at 1317 (emphasis added). In Trevino v. Thaler, U.S., 133 S.Ct. 1911, 185 L.Ed.2d 1044 (2013), the Court held that the Martinez rule applies in jurisdictions that do not require ineffectiveness claims to be brought in post-conviction proceedings, if the state procedural framework, by reason of its design and operation, makes it highly unlikely in a typical case that a defendant will have a meaningful opportunity to raise a claim of ineffective assistance of trial counsel on direct appeal. 133 S.Ct. at The Ninth Circuit recently held that the Martinez rule applies in Washington. Woods v. Sinclair, , 2014 WL at *21 (9th Cir. Aug. 25, 2014). Martinez s requirement that state law required (or forced as a practical matter) the petitioner to bring the claim in the initial review collateral proceeding is met, the Ninth Circuit held, because Washington law does not permit consideration of matters outside the trial record on direct appeal. Id. (citing State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995)). 15

21 II. BECAUSE FINALITY IS ADEQUATELY SERVED BY PROTECTIONS EMBODIED IN THE SUBSTANTIVE LAW GOVERNING INEFFECTIVENESS CLAIMS, AND IS THEREFORE OUTWEIGHED BY THE INTEREST IN PROVIDING A FORUM FOR SIGNIFICANT CONSTITUTIONAL CLAIMS, SUFFICIENT REASONS EXIST TO APPLY PADILLA RETROACTIVELY. This Court must determine, without reference to the Teague standard, whether sufficient reasons exist to apply the Padilla rule retroactively. This Court should answer this question in the affirmative, because the test governing Padilla claims has built-in safeguards to protect finality. Both the deficient performance and prejudice components of the legal standard safeguard finality. With Washington s interest in finality adequately addressed, the interest in providing a forum for litigating these important constitutional claims provides sufficient reason to permit the claims to be litigated retroactively. See In re Restraint of Hagler, 97 Wn.2d at 826 (recognizing need to balance finality and need to provide a forum for error correction). Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), created a two-part test for ineffective assistance. Padilla relies on Strickland, which requires a defendant to prove not only that trial counsel s performance was deficient, but also that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at

22 Both prongs of Strickland protect finality. In evaluating whether counsel s performance was constitutionally deficient, Strickland eschews a post hoc judgment: A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel s challenged conduct, and to evaluate the conduct from counsel s perspective at the time. 466 U.S. at 689 (emphasis added); see also id. at 690 (instructing postconviction courts to evaluate performance as of the time of counsel s conduct and measured against prevailing professional norms ). Reviewing courts are not to judge counsel s conduct by standards of performance that evolve later. By this requirement, ineffective assistance of counsel claims are already frozen in amber, and need no antiretroactivity rule to protect against the occasional unfairness of evolving constitutional norms. 3 The Strickland Court s discussion announcing the standard for assessing deficient performance indicates the Court was motivated by its concern with the finality of judgments: The availability of intrusive post-trial inquiry into attorney performance or of detailed guidelines for its evaluation would encourage the proliferation of ineffectiveness challenges. Criminal trials resolved unfavorably to the defendant would increasingly 3 Here, as is explained in the amicus brief of the Washington Defender Association, prevailing professional norms have long required defense counsel to provide adequate counsel regarding immigration consequences, presaging the Padilla decision s determination that this requirement falls within the scope of the Sixth Amendment. 17

23 come to be followed by a second trial, this one of counsel's unsuccessful defense. Id. at 690. Teague is not necessary to serve finality where the legal standard governing claims is linked to the time of the alleged error. The prejudice prong of the Strickland test explicitly accounts for finality. The Court rejected the idea that deficient performance should merit automatic reversal, and instead sought to fashion a test that would identify errors of counsel sufficiently serious to warrant setting aside the outcome of the proceeding. Id. at 693. While a prejudice test requiring a defendant to demonstrate prejudice by a preponderance of the evidence would reflect[] the profound importance of finality in criminal proceedings, id., the Court decided that [a]n ineffective assistance claim asserts the absence of one of the crucial assurances that the result of the proceeding is reliable, so finality concerns are somewhat weaker and the appropriate standard of prejudice should be somewhat lower. Id. at 694. Thus, in calibrating the prejudice prong, the Strickland Court explicitly considered the finality owed to state-court judgments. In essence, Strickland was designed for collateral review. Superimposing a second finality-serving doctrine, such as an antiretroactivity rule, on ineffective assistance claims properly brought for the first time in postconviction proceedings, skews the fine balance struck by Strickland. 18

24 This Court has previously recognized that Strickland s prejudice prong is, in and of itself, an adequate safeguard of the state s interest in finality that naturally arises in postconviction proceedings. In In re Restraint of Crace, 174 Wn.2d 835, 842, 280 P.3d 1002 (2012), this Court rejected imposing a double prejudice standard on ineffectiveness claims raised in PRP proceedings. Although PRP petitioners must demonstrate actual and substantial prejudice in most instances a heightened burden imposed on collateral review in order to serve the state s interest in finality, see In re Restraint of Stockwell, 179 Wn.2d 588, , 316 P.3d 1007 (2014) in Crace this Court held this heightened burden need not be met where the alleged error is ineffective assistance of counsel. This Court noted that Strickland was specifically crafted for collateral review, and explicitly addressed the state s interest in finality. 174 Wn.2d at Thus, the balance of the need for error correction against the interests of the state in finality has been adequately struck by Strickland itself. CONCLUSION Washington s courts, no less than federal courts, have the duty to adjudicate federal constitutional claims. See U.S. Const. Art. VI, cl. 2 ( This Constitution shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby. ); Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176, 2 L.Ed. 60 (1803) ( It is, emphatically, the 19

25 province and duty of the judicial department, to say what the law is. ); Arizona v. Evans, 514 U.S. 1, 8, 115 S.Ct. 1185, 131 L.Ed.2d 34 (1995) ( State courts, in appropriate cases, are not merely free to they are bound to interpret the United States Constitution. ). Teague and Griffith were meant to ensure this principle. They encourage state courts to interpret the federal constitution, and by limiting federal review of their interpretations establish them as coequal developers of federal constitutional law. But importing Teague in the cases presented here would undermine it, denying Washington s courts the important opportunity to discharge their constitutional obligation. Having determined that Teague should not be applied here, this Court should conclude that for ineffective assistance of counsel claims like those at issue here which are evaluated according to a legal test that accords great weight to the state s interest in finality Washington s interest in providing a forum for litigation of constitutional claims is sufficient reason to permit retroactive application of a significant change in the law such as that marked by Padilla. Respectfully submitted on the 5th day of September, 2014, /s/ Christopher N. Lasch, Colo. Registration #42241 /s/ Professor John A. Strait, WSBA #