[*I have been informed by my ever helpful wife that we are in June; I will neither admit nor deny whether I knew this at the time I thought of this title but point out that the decisions at issue in this blog post were issued in May!]
The once prevailing wind of hostility by federal judges toward Padilla retroactivity claims has now begun to blow the other way. Two federal district courts recently held that Padilla did not announce a “new rule” for retroactivity purposes, i.e., Padilla could be applied retroactively, and granted, yes granted, the petitioners in those cases postconviction relief.
The cases are United States v. Krboyan, decided in the Eastern District of California, and Amer v. United States, a Northern District of Mississippi matter. It is notable that each case involved different procedural vehicles for seeking postconviction relief; in Krboyan, it was a petition for writ of error coram nobis, in Amer, a section 2255 habeas petition [although the court, in a move of great significance, sua sponte converted this into a petition for writ of error coram nobis thereby obviating the need for the petitioner to argue that his otherwise untimely 2255 petition fell within section 2255(f)(3)’s “new rule” exception, otherwise know as the death knell for Padilla retroactivity. Also notable is the fact that the holdings originated in two pretty different circuits, in terms of the general ideological sweep of decisions which affect criminal procedure and immigration: Ninth Circuit versus Fifth Circuit.
In other Padilla retroactivity news, the Supreme Court of New Jersey recently accepted a case with potentially profound impact on Padilla retroactivity law. The case is State v. Frensel Gaitan, which was previously covered in this blog here. The question to be answered, according to the New Jersey Supreme Court website, is as follows:
Do the decisions in Padilla v. Kentucky, 559 U.S. __, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010) and State v. Nunez-Valdez, 200 N.J. 129 (2009) apply to this non-citizen defendant’s argument, raised for the first time in his post-conviction relief petition, that his attorney failed to discuss with him the deportation consequences of his guilty plea?
If anyone has access to the briefs in the Gaitan case [as they become available] and would be willing to share them with other readers, please let me know.