There is pushback from supporters of immigrant rights.
From Loudon County, Virginia comes news of defiance by a trial judge against the recent ruling from the Virginia Supreme Court in Morris/Chan which limited the use of certain writs by attorneys seeking postconviction relief under Padilla v. Kentucky. In a 13-page opinion, the judge, Dean S. Worcester, granted a petition for writ of error coram vobis, finding a violation of Padilla because the petitioner was never advised by his attorney of the immigration consequences of his plea to felony petit larceny. Of course, the petitioner now faces the prospect of having to fight the larceny charge in trial or, more likely, to secure a agreement from the prosecutor in which he would plead to a non-deportable offense. The case is Commonwealth v. Edgar Luis Cabrera and the opinion is available here. The Washington Post has the story on Cabrera’s victory here.
Further up the eastern seaboard, in New Jersey, the Appellate Division reinstated a petition seeking postconviction relief under Padilla, which had been initially rejected by the trial court on the now increasingly common but no less incorrect basis of the petitioner’s plea colloquy with the court. The appellate court noted that the questions posed to the petitioner during his plea colloquy were never designed to determine whether the petitioner received the level of effective assistance of counsel that Padilla now mandates. Thus, it kicked the case back to the trial court for an evidentiary hearing. There is some discussion of Padilla retroactivity, none which factored into the court’s ruling, however. The case is State v. Frensel Gaitan and the opinion is available here.