As we await the U.S. Supreme Court’s decision in Chaidez, we learn that the highest court in Florida has come out against retroactive application of Padilla. The case, which I have written about here and here, is Gabriel Hernandez v. State, SC11-941. Before reaching the question of Padilla retroactivity, however, the Hernandez court decided an issue that, if I correctly recall, appeared in one form or another in the Fourth Circuit’s recent decision in United States v. Akinsade (see my prior blog post); namely, whether a court’s admonishment at a plea proceeding regarding immigration consequences precludes a defendant from bringing a claim for ineffective assistance vis a vis Padilla. The Florida Supreme Court answered that question in the negative.
It is unlikely that Hernandez will be persuasive precedent in cases that originate outside of Florida. The court analyzed the Padilla retroactivity issue solely under Florida state law. And in marked contrast to the Chaidez case, the parties seemed to concede that Padilla represented a “new rule”, which meant that advocates of retroactive application had the tough task of convincing the court that Padilla represented, in the words of the Hernandez court, “a development of fundamental significance” — a standard that, at least in the federal realm, no decision has been able satisfy save for, perhaps, the decision in Gideon v. Wainwright.
The opinion in Hernandez can be downloaded here.
Invisible Man 