Home >  > Padilla v. Kentucky - New Grounds for Motions to Vacate

Padilla v. Kentucky - New Grounds for Motions to Vacate

Steven A. Goldstein

06/30/10

On March 31, 2010, the United States Supreme Court handed down a decision that is sure to increase the filings of post-conviction relief motions throughout the United States.  A post-conviction relief motion, commonly referred to as a Motion to Vacate Plea, Judgment and Sentence, is filed after a conviction.  The motion generally alleges that a violation occurred either during the trial or plea.  Prior to the Padilla case, many states had in place criminal procedures that required a presiding Judge to warn defendants that their plea could subject them to deportation from the United States.  This warning took place during the plea colloquy.  The plea colloquy is when the Judge advises a defendant of all the rights they are giving up by pleading either guilty or no contest to a particular criminal charge.  Defendants generally give up certain rights when accepting a plea offer from the State such as the right to a jury trial, the right to cross examine witnesses, etc.  In many states, the presiding Judge is also required to warn the defendant regarding the immigration consequence of his plea.  For example, in the State of Florida, the presiding Judge must say the following, "If you are not a United States citizen, do you understand that the plea you are taking today can result in your deportation from the United States?" 

The Padilla case takes us into another facet of defendants' rights, including the Sixth Amendment of the United States Constitution right to effective assistance of counsel.  Previously, state courts have held that this right to effective counsel does not apply to erroneous deportation advice because deportation was a collateral consequence of a conviction.  In Padilla,  the United States Supreme Court held that defendants do, in deed, have a right to effective assistance of counsel in terms of receiving reliable advice on the immigration consequences of a conviction.  Specifically, the Court stated that lawyers must inform a client whether his or her plea carries a risk of deportation.  If the lawyer does not inform his client or erroneously informs his client of the risk of deportation then the lawyer's representation was constitutionally deficient. 

Once the determination is made that a defendant's lawyer was ineffective, a showing that the defendant was prejudiced must be made.  The Court acknowledged that changes in the immigration law have dramatically raised the stakes of a noncitizen's plea. Now that the immigration laws have expanded the class of offenses which trigger deportation for a noncitizen, the immigration consequences of a plea can no longer be considered collateral.  Just as it is the duty of an attorney to properly advise his or her client on the ramifications of decisions made at each stage of the criminal defense, an attorney must provide proper advice regarding deportation consequences. 

The Padilla Court recognized the importance of preserving the right to remain in the United States and preserving the possibility of discretionary relief from deportation in removal proceedings before an Immigration Judge.  The Court made this important distinction.  When the deportation consequences of a plea are not clear, the attorney must simply advise the client that the plea may carry adverse immigration consequences.  When; however, the deportation consequences of a plea are clear, the attorney must give correct advice regarding the consequences.  The Court held that it is an attorney's duty to do so. 

The Supreme Court cited to their holding in St. Cyr, regarding Section 212(c) relief, when it recognized that preserving the client's right to remain in the United States may be more important to the client than any potential jail sentence.  This is precisely why a noncitizen facing criminal charges should seek the advice of an immigration attorney in addition to a criminal defense attorney.  Ideally, a law firm that offers both practices is preferred; however, having an immigration attorney on board to consult with the criminal defense attorney is an absolute necessity. 

Lastly, the Supreme Court predicted that their decision in Padilla should not open the flood gates of post-conviction relief motions.  This could not be further from the truth as our firm, along with many others, are filing motions based on Padilla and successfully challenging prior pleas where the defense attorney either gave erroneous advice or did not advise the client at all about the immigration consequences of their plea. 

It remains to be seen how each state will address the plethora of motions spawned from this decision.  Time will tell. 

« Prev   |   Next »