Padilla v Kentucky and Retroactive Application

I appealed a municipal court judge’s decision denying my client’s application for post-conviction relief. The grounds for the appeal were that my client’s constitutional right to effective assistance of counsel was violated due to the fact that her prior defense lawyer failed to inform her that she would be subject to removal proceedings if she pleaded guilty to shoplifting for a second time. It is clear from the record of the plea hearing that the court also failed to advise the defendant regarding those consequences.

A year ago, an appeal like this would probably not have been possible. However, the United States Supreme Court’s decision in Padilla v Kentucky opened the door for an argument that I have always supported-a criminal defense lawyer needs to inform a non-citizen client of the possible immigration consequences of a guilty plea. Failure to do so can result in a Sixth Amendment ineffective assistance of counsel claim to be analyzed under the two prong test established in Strickland.

The municipal court which originally heard the motion did not allow the petitioner to create a record. Basically, the case was dismissed with no findings as to whether counsel had provided effective counsel or that the defendant had been prejudiced by counsel’s ineffective representation. An appeal was necessary.

It was fairly clear from the outset that the superior court judge agreed with our position and was leaning towards finding that defense counsel’s performance was constitutionally deficient. However, the prosecutor for the State raised an interesting argument regarding the retroactive application of the Padilla decision.

Under normal circumstances, a new rule of constitutional law is not retroactive. the State’s argument was that the holding in Padilla announced a new rule of law, and placed a burden on defense counsel that did not exist before. If the prosecutor was to succeed with this argument, then the appeal would be dismissed.

However, we argued that no new rule had been created. We argued that the holding in Padilla simply further defined what it means to provide effective assistance of counsel. Additionally, and most persuasive, the Court in Padilla decided the case on the merits. It analyzed the facts and circumstances of a guilty plea that occurred years before and granted Padilla his request that his plea be vacated years later. In addition, in the decision, the Court specifically addressed lower courts future applications for PCR grounded in Padilla. The court noted that they did not think that the decision would open a “floodgate” of new litigation, and that lower courts were certainly equipped to analyze PCR applications using the test in Strickland.

I was able to find three specific cases that supported the retroactive application of Padilla. These cases provided guidance to the court as to how to rule on this issue. Thankfully, the court ruled in our favor, and my client will be entitled to an evidentiary hearing.


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