A U.S. District Court from Nebraska has ruled that principle announced in Padilla v. Kentucky – i.e., effective assistance requires advice as to immigration consequences – creates a “new rule” under the standard established in Teague v. Lane and is therefore barred from retroactive application. The case is United States v. Perez, Case No. 8:02CR296 (D. Neb. Nov. 9, 2010) and can be accessed here. From the opinion in Perez:
A decision of the Supreme Court should not be applied retroactively if it creates a “new rule” which “`breaks new ground or imposes a new obligation on the States or the Federal Government . . . . To put it differently, a case announces a new rule if the result was not dictated by precedent existing at the time the defendant’s conviction became final.'” Miller v. Lochhart, 65 F.3d 676, 685 (8th Cir. 1995) (quoting Teague v. Lane, 489 U.S. 288, 301 (1989)). In 2006, when Perez pled guilty to his single-count indictment, failure to inform a defendant of the prospect of deportation did not necessarily constitute an error of counsel in the Eighth Circuit. See Gumangan v. United States, 254 F.3d 701, 706 (8th Cir. 2001). Thus, this Court is convinced that Padilla created a “new rule” that should not apply retroactively because such rule was not dictated in prior Eighth Circuit precedent. Moreover, with the holding in Gumangan, at the time of Perez’s plea, it was not clear that it was a “prevailing professional norm” in the Eighth Circuit to inform a defendant of immigration consequences when pleading guilty. Wiggins, 539 U.S. at 521 (internal quotation marks omitted). Thus, if this Court were to apply Padilla retroactively, it is unclear how it would do so in light of Gumangan.
Even without having researched it, I would take issue with the analysis of the Perez court. It matters not what the prevailing norms were in the Eighth Circuit at the time of the conduct at issue in Perez. In issuing the Padilla decision, the Supreme Court had already put this issue to bed, concluding that the prevailing professional norms nationally, i.e., among all circuits, required a criminal defense attorney to advise as to immigration consequences. I would also argue that whether the prevailing professional norms in the Eighth Circuit required advice as to immigration consequences is an issue separate and apart from the issue of whether Padilla was dictated by existing precedent. The undeniable fact is that Padilla was decided squarely on the basis of Strickland v. Washington, certainly a case that was on the books at the time Padilla was decided.