Post Conviction Relief; Padilla v. Kentucky
Padilla v. Commonwealth of Kentucky, 559 U.S. 356 (2010), is a case in which the United States Supreme Court decided that criminal defense attorneys must advise non-citizen clients about the deportation risks of a guilty plea. The case extended the Supreme Court’s prior decisions on criminal defendants’ Sixth Amendment right to counsel to immigration consequences.
The duties of Counsel recognized in Padilla are broad. After Padilla, where the law is unambiguous, attorneys must advise their criminal clients that deportation “will” result from a conviction. Second, where the immigration consequences of a conviction are unclear or uncertain, attorneys must advise that deportation “may” result. Finally, attorneys must give their clients some advice about deportation—counsel cannot remain silent about immigration.
After Padilla, there has been significant litigation in the lower courts about whether attorneys are required to advise their criminal clients about other consequences of convictions.
José Padilla was born in Honduras in 1950. He later immigrated to the United States and became a lawful permanent resident. Padilla served in the US military during the Vietnam War and received an honorable discharge. As of 2010, Padilla had been a lawful resident in the United States for more than 40 years.
In 2001, Padilla was working as a commercial truck driver when he was arrested in Kentucky for transporting marijuana. His defense attorney told him that he “did not have to worry” about the conviction affecting his immigration status, so he pled guilty pursuant to a plea bargain. However, this advice was incorrect, as Padilla’s deportation was virtually automatic. In 2004, Padilla filed a pro se motion for post-conviction relief, alleging that he had been given bad advice from his attorney.
The Sixth Amendment, as interpreted by the Court in Gideon v. Wainwright, guarantees criminal defendants legal counsel. Strickland v. Washington, a subsequent decision, further requires that defendants receive effective counsel. If defendants receive ineffective assistance of counsel, they may be able to get their convictions overturned. Traditionally, defense attorneys were only required to advise their clients of the direct consequences of convictions: the sentence likely to result from a plea bargain, the maximum sentence one might face at trial, and the risk of conviction at trial. The Sixth Amendment does not require attorneys to tell their clients about any collateral consequences: civil penalties such as loss of professional licenses, loss of government benefits, and loss of voting rights. Before Padilla, deportation was considered a collateral consequence, and thus not a consequence about which attorneys had to provide legal advice.
Padilla argued that the bad advice he had been given was ineffective assistance and therefore his conviction breached the Sixth Amendment. Padilla won his case in the Kentucky Appellate Court, but the Commonwealth requested the Kentucky Supreme Court hear the case on discretionary review. That court applied a harsh version of the collateral consequences rule, reasoning that whether Padilla’s attorney failed to advise him or affirmatively misadvised him before his plea made no difference. The court held that even affirmative misadvice about deportation provided no grounds for relief under Strickland.
As the Supreme Court agreed to hear it,the case posed two questions: (1) whether the mandatory deportation that results from a guilty plea to trafficking in marijuana is a “collateral consequence” and counsel is thereby relieved of an affirmative duty to advise his client about it in accordance with the guarantees of the Sixth Amendment; and, (2) assuming deportation is a “collateral consequence”, whether counsel’s gross misadvice about deportation constitutes a ground for setting aside a guilty plea that is induced by that advice. Ultimately, the Court re-framed the case in a way that made the collateral consequences doctrine irrelevant.
The Supreme Court reversed the Kentucky Supreme Court’s decision. The Supreme Court held that criminal defense attorneys are duty-bound to inform clients of the risk of deportation under three circumstances. First, where the law is unambiguous, attorneys must advise their criminal clients that deportation “will” result from a conviction. Second, where the immigration consequences of a conviction are unclear or uncertain, attorneys must advise that deportation “may” result. Finally, attorneys must give their clients some advice about deportation—counsel cannot remain silent about immigration consequences
In Chaidez v. United States, 568 U.S. _____, ____S.Ct.____, 2013 WL 610201,
(February 20, 2013) the U.S. Supreme Court held that Padilla v. Kentucky, 559 U.S. 356 (2010)
was a “new rule” that did not apply retroactively to convictions final before March 31, 2001. In
Padilla, the Supreme Court held that the Sixth Amendment requires criminal defense counsel to
advise a noncitizen about the immigration consequences of a guilty plea.
In California state courts, post-conviction relief based on ineffective assistance of
counsel for failure to advise about immigration consequences should be largely unaffected
by this opinion. California courts have held for over 25 years that criminal defenders have
this obligation under Article I, §15 of the California Constitution as well as the Sixth
Amendment to the U.S. Constitution. Since 1987 in California, criminal defense counsel
have been obligated to advise noncitizen criminal defendants about the actual and specific
immigration consequences of conviction. (People v. Soriano (1987) 194 Cal.App.3d 1470,
1478-79, 240 Cal.Rptr. 328).
The Supreme Court in Chaidez acknowledged that Padilla’s ruling answered an open
question about the Sixth Amendment’s reach “in a way that altered the law of most jurisdictions”
and in so doing, broke new ground and imposed a new obligation.” (Emphasis added.) Since
California’s law was not altered by Padilla, courts in California must apply its pre-Padilla
case law which pre-dated Padilla by more than 25 years, to claims of ineffective assistance