Virginia General District Court Judge Refuses to Follow Va. Supreme Court

In a recent decision, Loudon County General District Judge Worcester strongly disagreed with and declined to follow the Virginia Supreme Court's recent holding in Commonwealth v. Morris and Chan.  The Supreme Court ruling, discussed in previous posts, denied the availability of certain writs, such as the writ of coram nobis (also called coram vobis), to aliens seeking post-conviction relief based on ineffective assistance of counsel.

Prior to the Virginia Supreme Court ruling, Judge Worchester had used the writ of error in four cases in which defendants had not been advised of deportation consequences. 

In his opinion, Judge Worchester stated "[i]f this Court were to abide by the ruling [in Morris and Chan] ... a constitutional violation will stand uncorrected. . . . [t]he Court will not allow this to happen." Finding that the Virginia Supreme Court's ruling was "at odds with long-standing precedent and jurisprudence," the judge apparently decided to ignore it and granted relief using the writ of coram nobis anyway.

Read the opinion here.
Read an article from the Washington Post here.

Virginia U.S. District Court Rules Padilla is Not Retroactive

Recently, the U.S. District Court in Alexandria, Virginia took up the issue of whether the U.S. Supreme Court's decision in Padilla v. Kentucky, 130 S. Ct. 1473 (2010), applies retroactively.  The Court held that Padilla announced a "new" rule because the failure of counsel to advise the defendant of the risk of deportation would not have been unreasonable at the time the defendant's conviction became final.  Additionally, the Court held that none of the retroactivity exceptions identified in Teague v. Lane, 489 U.S. 288 (1989), were applicable to Padilla.

Read the opinion here.


Federal courts across the country are grappling with this issue and reaching widely different conclusions:

Finding Padilla Retroactive:

United States v. Zhong Lin - Western District of Kentucky.
Read the opinion in its entirety here.

Martin v. United States - Central District of Illinois.
Read the opinion in its entirety here.

United States v. Chaidez - Northern District of Illinois.
Read the opinion in its entirety here.

Finding Padilla Not Retroactive:

United States v. Perez - District of Nebraska.
Read the opinion in its entirety here.

United States v. Shafeek - Eastern District of Michigan.
Read the opinion in its entirety here.

Virginia Supreme Court Denies Audita Querela & Coram Nobis Post-Conviction Relief

In January, the Virginia Supreme Court issued its decision in two cases concerning the availability and application of post-conviction relief from removeability in Virginia state courts (Commonwealth v. Morris and Commonwealth v. Chan). At issue were two ancient writs, the writ of audita querela and the writ of coram nobis, which Morris and Chan argued were available to alter the criminal sentence of an alien long after it was originally imposed in order to avoid harsh immigration consequences such as deportation.

The Court held that the write of audita querela was simply not an available form of post-conviction relief in Virginia, despite its availability in a number of other jurisdictions.  The Court also held that ineffective assistance of counsel did not constitute and error in fact for the purposes of the writ of coram nobis.

Read the opinion here.
Read Washington Post article here.

Virginia Supreme Court to Consider Post-Conviction Relief for Aliens

On November 1, 2010, the Virginia Supreme Court will hear oral arguments in two cases concerning the availability and application of post-conviction relief from removeability in Virginia state courts (Commonwealth v. Morris and Commonwealth v. Chan).  At issue are two ancient writs, the writ of Audita Querela and the writ of Coram Nobis.  These writs allow a trial court to alter the criminal sentence of an alien long after it was originally imposed in order to avoid harsh immigration consequences such as deportation. 

The writ of Audita Querela is a common law writ dating back to 1329 which historically permitted a defendant to obtain relief from a judgment because of some defense or discharge arising subsequent to its rendition.  It has been used in criminal cases by a number of federal courts and Virginia trial courts to prevent substantial injustices. 

The writ of Coram Nobis (also called Coram Vobis), unlike Audita Querela, has been codified in Virginia.  It allows a trial court to correct its own record with reference to a vital fact not known when the judgment was rendered and could not have been presented by a motion for a new trial, appeal or other statutory proceeding.  The writ is available where the error of fact is not apparent on the record, not attributable to the applicant's negligence, and which if known by the court would have prevented rendition of the judgment. 

These forms of relief are particularly important in cases where an alien's attorney fails to advise the alien that taking a plea deal for a seemingly small misdemeanor under Virginia law can lead to mandatory detention and deportation under immigration law, even where the alien serves no time in jail.  Earlier this year, the U.S. Supreme Court found that this type of failure to advise constitutes ineffective assistance of counsel. Where other avenues, such as habeus relief are already time-barred, these two writs often present the last possibility of relief from removal.

Padilla v. Kentucky

As immigration practitioners undoubtably know, immigration law is often quite severe when it comes to the consequences of criminal convictions.  Unbenownst to many criminal law practitioners, the unique severity of deportation often turns a seemingly advantageous plea deal into an immigration nightmare. 

On March 31, 2010, the U.S. Supreme Court addressed this issue and held that criminal defense attorneys have an obligation to inform their clients if a guilty plea carries a risk of deportation. The Court ruled that the Sixth Amendment requires defense counsel to provide affirmative, competent advice to a noncitizen defendant regarding the immigration consequences of a guilty plea, and, absent such advice, a noncitizen may raise a claim of ineffective assistance of counsel.  Writing for the majority, Justice Stevens stated that, "[o]ur longstanding Sixth Amendment precedents, the seriousness of deportation as a consequence of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand no less."

As the Court noted, immigration law is notoriously complex.  The Immigration group welcomes referrals and consultations on the immigration consequences of criminal convictions.

To learn more about Padilla, read the opinion and a practice advisory.