Post-Conviction Relief for Immigrants

(B)  Duty to Anticipate Changes in the Law.  Counsel must also anticipate reasonable changes in the law, especially those developments that are “in the pipeline” at the time the alleged error occurred.  Where the law has changed since the time of counsel’s representation, it may be helpful to consult retroactivity case law that discusses whether judicial decisions are considered to be “new law” or mere extensions of existing law.[116]  The test under federal law is whether a court would feel compelled by existing precedent to conclude that the rule was mandated at the time of the error,[117] or whether the rule “‘breaks new ground,’ ‘imposes a new obligation on the States or the Federal Government,’ or ‘was not dictated by precedent existing at the time the defendant’s conviction became final.’”[118]  If the change in law is not considered a “new rule” under this standard, counsel should be charged with its knowledge and found deficient for a failure to research.  See § 6.15, infra.

[116] See Teague v. Lane, 489 U.S. 288 (1989); see, e.g., People v. Guerra, 37 Cal.3d 385, 399, 208 Cal.Rptr. 162, 690 P.2d 635 (1984).

[117] Saffle v. Parks, 494 U.S. 484, 488 (1990).

[118] Snook v. Wood, 89 F.3d 605, 612 (9th Cir. 1996).