In San Antonio and other courts throughout Texas, many Mexican citizens take plea deals every day. Before 2010 the only requirement for non-U.S. citizens taking pleas was that the defendants must be warned that they may face deportation, removal from the country or denial of U.S. citizenship. However, on March 31, 2010, the United States Supreme Court filed its decision in Padilla v. Kentucky, 130 S. Ct. 1473 (2010) holding that “counsel must inform her client whether his plea carries a risk of deportation.” Padilla at 1486. “When the law is not succinct and straightforward…a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear.” Padilla at 1483. This means that a defense attorney must adequately advise a non-U.S. citizen of how the plea may affect his or her status in this country.
The U.S. Supreme Court went on to explain: “Our 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.” Id.
But a big debate throughout Texas is whether Padilla announced a new rule of law that bars it from being applied retroactively. Or does Padilla just clarify a longstanding rule of law, allowing it to apply to cases that were final prior to the Padilla opinion?
Texas Courts have been applying Padilla retroactively to cases that were final before the opinion was rendered. In Ex parte Tanklevskaya, 2011 WL 2132722 (Tex. App.–Hous. [1Dist.] 2011), the Court of Appeals denied the State’s claim that “Padilla announced a ‘new constitutional rule of criminal procedure’ that should not be applied retroactively to cases on collateral review.” Id. at *4; citing Teague v. Lane, 489 U.S. 288, 310 (1989). That Court, agreeing with other Courts in Texas and around the country, held that Padilla does not apply new rule of criminal procedure but is an extension of the rule in Strickland v. Washington and therefore applies retroactively. Id. at *7.
Although Texas Courts have been applying Padilla retroactively, Federal Courts are split on this issue. The Third Circuit Court of Appeals, for example, was the first appellate court to address whether Padilla was retroactive. Holding that it was retroactive, the Third Circuit Court of Appeals turned “to longstanding Supreme Court precedent to guide the prejudice inquiry.” United States v. Orocio, No. 10-1231, *24 slip op. (3d Cir. June 29, 2011). That Court explained: “Supreme Court…requires only that a defendant have rationally gone to trial in the first place, and it has never required an affirmative demonstration of likely acquittal at such a trial as the sine qua non of prejudice.”
The Fifth Circuit Court of Appeals, however, recently issued an interim opinion that Padilla is not retroactive. But, in the opinion the Court recognized that the U.S. Supreme has granted cert in United States v. Chaidez for this same issue and will be deciding the issue soon. See U.S. v. Amer, — F.3d —-, 2012 WL 1621005 (5th Cir. 2012).
Attorneys who handle post-conviction writs of habeas corpus and Padilla-type issues are anxiously awaiting how the U.S. Supreme Court will rule in Chaidez. However, for now there is optimism that the court will rule that Padilla applies retroactively.
If you or a loved one are now facing deportation from this country for a criminal conviction, contact the Law Office of Dayna L. Jones to schedule an appointment with a criminal defense attorney who handles these serious matters. Call 210-255-8525, calls are answered 7 days a week 24 hours a day.