The United States Supreme Court Declares Their Landmark Decision In Padilla v. Kentucky Is Not Retroactive, But Non-Citizens Seeking To Overturn Their Convictions Due To Ineffective Advice From Counsel Still Have Avenues For Relief Under California Law

In the United States Supreme Court landmark decision of Padilla v. Kentucky (2010) 130 S. Ct. 1473, the Court held that non-citizen criminal defendants are owned a constitutional duty from their trial counsel to be properly and thoroughly advised concerning the immigration consequences of pleading guilty. Many seemingly minor criminal convictions can result is severe and devastating immigration consequences for non-citizen criminal defendants. The U.S. Supreme Court in Padilla held that criminal trial counsel have a duty to research and properly advise a non-citizen defendant of the immigration consequences of pleading guilty. Failure to adequately and properly advise a non-citizen defendant of the immigration consequences of their guilty plea can constitute ineffective assistance of counsel and be grounds for later vacating or reversing the defendant’s plea. However, in the years after the Court’s decision in Padilla, an important question was left open concerning whether the doctrine set forth in Padilla would apply to individuals whose convictions became final before the date of the Court’s decision.

The rule for whether a rule of law will apply retroactively was espoused in the United States Supreme Court case of Teague v. Lane (1989) 489 U.S. 288, wherein the Court held that “new rules” are rules that are “not dictated by precedent existing at the time the defendant’s conviction became final.” (Id. at p. 301.) If a rule is considered “new” under the Teague standard, it will not apply retroactively and a criminal defendant whose conviction occurred before the date of ruling cannot use the “new rule” to appeal or challenge their conviction. In contrast, an “old rule” is a rule which is not too far removed from broader outlines of precedent and can be applied by a criminal defendant on both direct appeal and collateral review to help attack their conviction.

Many legal scholars thought the U.S. Supreme Court would declare the ruling in Padilla to be retroactive because the Court’s jurisprudence has long held that ineffective assistance of counsel claims applied to all “important decisions,” (Strickland v. Washington (1984) 466 U.S. 668, 688) in plea bargaining that could “affect the outcome of the plea process” (Hill v. Lockhart (1985) 474 U.S. 52, 59). Thus, some legal scholars believed the ruling in Padilla did not create a “new rule” by extending the ineffective assistance of counsel analysis set forth in Strickland, but instead Padilla merely affirmed defense counsel’s obligations to the criminal defendant during the plea process and therefore constituted an “old rule.”

The United States Supreme Court in Chaidez v. United States (2012) 132 S. Ct. 2101, resolved the issue of whether Padilla applied retroactively, holding that Padilla created a new rule of law that did not apply retroactively. The Chaidez ruling was a devastating blow to many non-citizens hoping to challenge their convictions based on the increased protections set forth in Padilla. However, just because the United States Supreme Court has held that the federal constitutional protections espoused in Padilla cannot be used by non-citizens whose convictions became final before the date of the ruling does not mean that non-citizens who received bad advice from trial counsel concerning the immigration consequences of their plea before Padilla was decided are without defenses.

Often times state law can be used to help overturn a non-citizen’s conviction when they received inadequate or inaccurate information about the immigration consequences of pleading guilty. Many jurisdictions, such as California, have held long before Padilla that criminal trial counsel owes a duty to a non-citizen defendant to properly research and accurately and thoroughly advise them of the immigration consequences of pleading guilty. For example in California, in People v. Soriano (1987) 194 Cal. App. 3d 1470, it was held that a non-citizen received ineffective assistance of counsel which was grounds for reversing his conviction because his criminal trial attorney failed to research the immigration consequences of his guilty plea and only gave him a generalized pro forma warning that he “could be” deported if he chose to plead guilty when, in fact, the defendant was required to be deported if he pled guilty. Another California example can be seen in In Re Resendiz (2001) 25 Cal. 4th 230, wherein a non-citizen defendant was incorrectly assured by his trial counsel that he would not be deported if he pled guilty, but was later placed into deportation proceedings because of his criminal conviction. The Resendiz court held that it constitutes ineffective assistance of counsel for an attorney to affirmatively misadvise a non-citizen criminal defendant of the immigration consequences of pleading guilty.

Thus, just because the United States Supreme Court has held that the Federal Constitution does not protect non-citizen criminal defendants who were given erroneous advice concerning the immigration consequences of their guilty plea before the date Padilla was decided, does not mean that non-citizens receiving faulty immigration advice about their guilty pleas are without recourse. Many jurisdictions, such as California, have long held that criminal trial counsel has a duty to properly research and advise non-citizen defendants concerning the immigration consequences of their guilty pleas. If a non-citizen’s criminal conviction occurred in a jurisdiction like California and they were misadvised by trial counsel about the immigration consequences of their plea, they may be able to reverse their conviction even if it became final before the date Padilla was decided. If you are facing unforeseen immigration consequences as a result of your criminal conviction, contact The Law Offices of Grant Bettencourt today for help.