UPDATE: Chaidez and Padilla Retroactivity

True to her word, Judge Gottschall from the Northern District of Illinois has issued a follow up opinion in United States v. Chaidez, this time deciding the issue of whether the Supreme Court’s decision in Padilla v. Kentucky could be applied retroactively.  The opinion can be accessed here.

The short answer is that yes, Padilla can be applied retroactively.  That conclusion is based generally on the court’s finding that the rule that came out of the Padilla decision, i.e., that a Strickland IAC claim lies in situations where counsel fails to inform a client of the immigration consequences of a criminal conviction, is not considered a “new rule” for postconviction retroactivity purposes.  Judge Gotschall based this conclusion on two grounds: first, that the Supreme Court itself decided the Padilla matter on its merits rather than on retroactivity procedural grounds which it could very well have done; and second, that Padilla was really an extension of Strickland that highlighted the importance of counsel informing a client of immigration consequences from a criminal conviction, a practice  that has long been advocated by the ABA and other bar associations.

The case now proceeds to the fact finding phase, in which the court will determine whether Chaidez can satisfy the Padilla-Strickland standard with her particular situation.