Padilla’s Collateral Effect

The 11th Circuit Court of Appeals recently affirmed a grant of habeas relief to a petitioner whom it found to have received ineffective assistance of counsel.  The case is Bauder v. Dep’t of Corrections, State of Fla. (Case No. 10-10657) and the opinion can be accessed here.  Relying on Padilla v. Kentucky, the Bauder court found that trial counsel’s misadvice to the petitioner concerning the likelihood of a “civil commitment” sentence constituted ineffective assistance of counsel.  It concluded that even though a “civil commitment” sentence might be considered an “adverse collateral consequence” of a conviction, the petitioner’s attorney was still required under Padilla to advise the client that the charges at issue might trigger the collateral consequence, particularly in situations when the law is unclear.  In Padilla, the adverse collateral consequence at issue was, of course, the prospect of deportation.  The Bauder decision doesn’t really break new ground on the Padilla postconviction front.  Even before Padilla, the law has been quite clear that an attorney’s affirmative misadvice concerning an “adverse collateral consequence” constitutes ineffective assistance of counsel.  See, e.g., Strader v. Garrison, 611 F. 2d 61 (4th Cir. 1979).  Which also means that the Bauder court didn’t have to consider the Padilla retroactivity issue since it was applying an old rule, so to speak.