Last week the U.S. Supreme Court handed down a significant decision in Padilla v. Kentucky written by Justice Stevens, which held that criminal defense attorneys must now advise their clients of the immigration consequences of a criminal conviction. Prior to this ruling, most state and federal courts scoffed at such a requirement, chastising counsel only when he or she misadvised a client about whether the risk of deportation posed by a conviction. One upshot of those decisions was the encouragement of counsel, particularly the uncaring and lackadaisical ones, to remain silent when it came to the point of a case where the worlds of criminal procedure and immigration law intersected. After Padilla, that will no longer be the case. And, it is, of course, too early to tell whether the post-Padilla regime will result in better representation for clients.
What I am puzzled about is whether the rule announced in Padilla will have any retroactive effect as to convictions that became final after the Court decided Padilla, particularly in postconviction/collateral proceedings. An initial review of Justice O’Connor’s seminal decision in Teague v. Lane brings me to the conclusion that Padilla could NOT be applied retroactively even with reference to Justice Harlan’s “ordered liberty” exception, i.e., that the rule announced in Padilla would be “the kind of absolute prerequisite to[a trial’s] fundamental fairness that is “implicit in the concept of ordered liberty.” ”
For those postconviction/criminal procedure gurus who may happen to stumble across this blog entry, I would greatly appreciate your collective thoughts on this issue.
Invisible Man 
Having just spent the last 7 hours researching this issue I am inclined to agree that Padilla is unlikely to be applied retroactively. While one might argue that Padilla became inevitable following the Supreme Court’s holding in Hill v. Lockhart that ineffective assistance of counsel claims could apply to sentencing issues and the comment in INS v. St. Cyr that deportation issues may be more important to immigrant defendants than sentencing issues, I still think that the argument that no reasonable jurists would have rejected the rule in Padilla sounds strained in the fact that so many jurists, including two Supreme Court justices, have. Certainly the other Teague exceptions seem unliklier still – clearly Padilla doesn’t protect any activity from criminal prosecution nor does being advised of the immigration consequences of a plea appear to be an “absolute prerequisite to fundamental fairness that is ‘implicit in the concept of ordered liberty.’ Teague, 489 U.S. at 314.
I’m not posting my name because I’m still weighing whether to try filing a motion for relief under Padilla and I certainly don’t want this post to be read by opposing counsel if I proceed. But at this point, its difficult to see how Padilla can be applied retroactively, at least in habeas cases.
Thanks for your thoughts on this and good luck with your Padilla motion if you do file it. I will try and post developments in this area – retroactive effect of Padilla – as they come about.
I was looking up on the possibility of retroactive application of Padilla v. KY, I found this article most helpful: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1591264
The authors are saying that the Teague “new rule of criminal procedure” rule does not control the Padilla decision. The authors contend that the Padilla decision itself intimated that Padilla could be applied retroactively under Strickland.
Does the fact that Padilla itself was decided in a Habeas Proceeding have any bearing on the retroactivity determinations …
Good question, “Preparing 28” – why would Padilla not be retroactive when the Padilla’s case is the result of a belated habeas corpus petition – i.e., collateral review? I am in Florida and have been following this for some time and the courts are withholding a nay or say although they are touching upon the subject, e.g., Garces (11th), Flores (4th DCA).
You are correct, David. The Supreme Court could very well have decided Padilla on procedural grounds but chose not to. If you take a look at the Chaidez decision from the Northern District of Illinois, Judge Gotschall cites this as a reason for applying Padilla retroactively.
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