Padilla Retroactivity Update

Two federal district court decisions touched on but did not decide the Padilla retroactivity issue.

They are:

Haddad v. United States, Case No. 07-12540 (E.D. Mich. Jul. 20, 2010)

and

United States v. Aguilar-Lopez, Case No. No. CR-09-6045-FVS-1 (E.D. Wash. Jul. 29, 2010)

The petitioner in Haddad brought an ineffective assistance claim under Padilla arguing that he was not informed by his attorney of the immigration consequences of his misdemeanor drug conviction.  The court rejected this claim, finding that the petitioner failed to establish both prongs of the ineffective assistance rubric.  Because the prevailing professional standards at the time of the petitioner’s conviction – 1997 – did not require a Padilla-style notice, the court concluded that counsel’s performance was not deficient under the first IAC prong.  In doing so, the court noted in passing that Padilla would most likely not apply retroactively, relying on Teague v. Lane, but offered little if any analysis as to why that would be the case, aside from its citation to Teague.  Even assuming that Padilla did apply retroactively, the court concluded that the petitioner couldn’t establish the second prejudice prong for postconviction relief.

In Aguilar-Lopez, the court noted that the defendant might have a shot at successfully challenging his prior state court convictions if Padilla applied retroactively but concluded that the proper forum for such a challenge would be in state court, essentially rendering the Padilla retroactivity issue moot.

ALSO, the New York Law Journal published a piece last week about the split among courts on whether to apply Padilla retroactively.