UPDATED: Banos: Padilla a “New Rule”?

There is some news on the Padilla front.  In Banos v. United States, the court in the Southern District of Florida rejected a defendant’s Padilla-based ineffective assistance claim without deciding whether Padilla would apply retroactively.  It noted that both parties, in their arguments to the court, agreed that Padilla constituted a “new rule” in the retroactivity context but proceeded to reject the defendant’s IAC claim on its merits, concluding that he had not established the requisite prejudice under the second part of the Strickland test.  One may wonder why the defendant opted for the “new rule” retroactivity path, which, as I have previously explained, is a much higher hurdle to surmount than arguing that Padilla is NOT a new rule and therefore is not barred from retroactive application under Teague v. Lane.  The answer lies, as it usually does for a growing number of Padilla-based IAC claims, in the fact that the defendant was out of time under 28 USC 2255, the federal habeas statute, and the vehicle employed by the defendant to attack his conviction.  Interestingly, the Banos court disagreed that Section 2255 applied in this case, because the defendant was “not currently in the custody of the United States” and instead converted the defendant’s motion to a petition for a writ of error coram nobis.  (See n.1 of the court’s decision.)  Nevertheless, the court made no determination as to whether Padilla could be applied retroactively, in contrast to the decision in what I consider to be the landmark case of Chaidez, which also involved a petition for writ of error coram nobis.  It is becoming clear that this writ is the preferred procedural vehicle for Padilla claims, especially for those who might run afoul of Section 2255’s limitations period.  Proceeding under the non-habeas route would obviate the need for a petitioner to have to shoehorn an otherwise untimely Padilla claim into one of Section 2255’s exceptions, which, if it is not already clear, is a near impossible task to accomplish.  The court’s decision in Banos can be downloaded here.  I will post the briefs from the parties soon.

UPDATE: My apologies for the delay, but, as promised, I now post the petitioner’s and government’s briefs  in Banos.  The government, interestingly, construed the petitioner as one seeking coram nobis rather than habeas relief — an argument that was ultimately accepted by the court.  This perhaps should have benefited the petitioner on the Padilla retroactivity front but alas the court opted not to decide the issue.  Nor did the government even cite let alone address the Chaidez case which held, persuasively, that Padilla should be applied retroactively in the coram nobis setting.  (Cf. p. 5 n.3 of Gov’t Brief.)  Not that this would have made much of a difference since the petitioner didn’t dispute that Padilla established a “new rule” for retroactivity purposes or, as I consider it, the death knell of Padilla retroactivity.

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