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.

New Padilla Resources

The ABA's Criminal Justice Section recently announced the establishment of a Padilla Task Force, in response to the decision in Padilla v. Kentucky.  The task force aims to assist defense lawyers in fulfilling their counseling obligations under that decision.  With that goal in mind, the ABA now has a Padilla Resource Page that provides access to a number of helpful vidoe discussions, powerpoints, and guides for practitioners. 

Check out the ABA's Padilla Resource Page here.

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.