Padilla v. Kentucky: Two Years Later – The Issue Of Retroactivity On Direct Appellate Review And Collateral Review.
It has been almost two years since the Supreme Court’s ruling in Padilla v. Kentucky and courts across the State of New York and across the Nation are still struggling and disagreeing on how the holding in Padilla should be applied. Some courts say it is a new rule and should not be applied retroactively, with some exceptions; other courts say that it is an old rule being applied to a new set of facts and should be applied retroactively; finally, there are various courts that say it is a rule that should only be applied retroactively on cases of direct appellate review and not on collateral review.
To refresh our recollections, the United States Supreme Court decided Padilla v. Kentucky in March of 2010. Justice Stevens wrote the majority opinion, which held that where an attorney fails to warn her client about adverse immigration consequences of a plea in a criminal case, this fulfills the first part of the two-part test for ineffective assistance of counsel outlined in Strickland v. Washington.[i]
Here are two important cases that were decided shortly after Padilla. Although neither of them received equivalent acclaim, they may help to clear the air on the subject of retroactivity of the Padilla rule, and on the issue of applicability of that rule on direct versus collateral review.
In both the case of Santos-Sanchez v. United States, ___U.S.___, 130 S.Ct. 2340, 176 L.Ed.2d 559 (2010) and in Chapa v. United States, ___ U.S.___, 130 S.Ct. 3504, 177 L.Ed.2d 1086 (2010) the Supreme Court vacated the decision of the Fifth Circuit Court of Appeals and remanded the cases to be decided in light of the decision in Padilla.
In the Santos-Sanchez case the defendant had been a legal resident of the United States since 2001. He was arrested in 2003 and charged with aiding and abetting the illegal entry of an alien into the US. He pleaded guilty after consulting with an Assistant Public Defender and was sentenced to one year of probation. As a result of his guilty plea the Department of Homeland Security found Santos-Sanchez removable because of his plea in the criminal case.
He filed a Writ of Errors Coram Nobis (collateral review) before a Magistrate Judge in the Southern District of Texas who granted the writ and vacated the conviction; however, the District Court for the Southern District of Texas eventually vacated the Magistrate’s ruling and denied the petition for a Writ of Errors Coram Nobis; Santos-Sanchez appealed.
The Fifth Circuit Court of Appeals held that deportation is a collateral consequence of the plea in the criminal case and that the defendant’s attorney was, therefore, not obligated to inform him of the immigration consequences of his guilty plea, and his counsel was therefore not ineffective. Santos-Sanchez v. U.S., 548 F.3d 327 (2008).
The U.S. Supreme Court granted certiorari (just one week after Padilla v. Kentucky was decided) and vacated the judgment of the Fifth Circuit and remanded the case with an order that it be re-decided in light of the holding in Padilla v. Kentucky – the Supreme Court’s direction to the Fifth Circuit Court of Appeals was to retroactively apply the Padilla holding in a case that was on collateral review.
Approximately three months after the Supreme Court decided Padilla v. Kentucky they decided the case of Chapa v. United States, ___ U.S.___, 130 S.Ct. 3504, 177 L.Ed.2d 1086 (2010).
In the Chapa case the defendant argued on direct appeal that her plea counsel had failed to warn her that it was a virtual certainty she would be deported because of her plea. The Fifth Circuit Court of Appeals, citing to its prior decision in Santos-Sanchez, held that counsel was not ineffective in failing to warn his client of the immigration consequences of a plea in a criminal case and affirmed the conviction.
The U.S. Supreme Court granted certiorari and vacated the Fifth Circuit’s judgment and remanded the case for it to be decided in light of the holding of Padilla v. Kentucky, again, directing that the holding in Padilla be applied retroactively to a case that was on direct appellate review.
In both cases Santos-Sanchez and Chapa, the U.S. Supreme Court found that the holding in Padilla is applicable retroactively, and furthermore, it is applicable on both direct appellate review and on collateral review of criminal cases.
[i] Strickland’s two-part test contains a performance prong and a prejudice prong. When assessing the performance of an attorney the test is whether that performance fell below an objectively reasonable standard. The Padilla Court held that failure to warn a client of adverse immigration consequences to a criminal plea falls below an objectively reasonable standard. The second part of Strickland’s test is the prejudice prong; under this part of the test the client is prejudiced if the outcome of the case would have been different but for the sub-standard performance of the attorney.
In the Padilla case the Supreme Court did not find that Mr. Padilla was prejudiced by his attorney’s performance, but remanded the case for further factual findings on that issue.