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Padilla v. Kentucky after Chaidez v. U.S.: Questions Left Unanswered
Mikhail Izrailev, Esq.

Since the Supreme Court's holding in Padilla v. Kentucky, 559 U.S. 356 (2010), criminal and immigration attorneys alike have been scratching their heads while waging battles in the courtroom. At the heart of the battle was the question of whether or not Padilla applied retroactively. In a 7 to 2 opinion, the Supreme Court recently answered that question with a resounding no. In Chaidez v. U.S, 568 U.S. _ (2013) the Supreme Court, in a majority opinion written by Justice Kagan, reasoned that Padilla established a "new rule" under the analysis in Teague v. Lane, 489 U.S. 288 (1989). Accordingly, the Court held that criminal defendants who pled guilty before Padilla are not eligible to retroactively claim ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984) on the basis that their criminal attorney did not warn them of the collateral immigration consequences of their plea.

Nevertheless, a criminal defendant can still pursue post-conviction relief on the basis that their counsel ineffectively represented them under the Strickland standard due to a variety of procedural and substantive issues.1 Specifically, an argument can still be made that Padilla applies to criminal defendants whose convictions were not final on March 31, 2010, as well as to defendants who were affirmatively misadvised about the collateral immigration consequences of their criminal pleas. Criminal attorneys can continue to make arguments tailored to the specific facts of each case based on prior counsel's failure to follow constitutionally mandated duties such as the failure to mitigate harm. See Seeking Post-Conviction Relief Under Padilla v. Kentucky After Chaidez v. U.S., IMMIGRANT DEFENSE PROJECT (Feb. 28, 2013).

The question for New York criminal defense attorneys remains whether or not Chaidez controls in the State Courts despite a number of recent opinions by the Appellate Divisions holding that Padilla based claims of ineffective assistance of counsel can be made retroactively to vacate pre-Padilla criminal convictions. See People v. Baret, 952 N.Y.S.2d 108 (2012) (decided October 2012); People v. Rajpaul, 954 N.Y.S.2d 249 (2012) (decided November 2012); People v. Picca, 97 A.D.3d 170 (2012); People v. Nunez, 917 N.Y.S.2d 806 (2010); see also People v. DeJesus, 935 N.Y.S.2d 464 (Sup Ct, NY County 2011) and People v. Burgos, 950 N.Y.S.2d 428 (Sup Ct, NY County 2012).

In Danforth v. Minnesota, 552 U.S. 264 (2008), the United States Supreme Court clarified that Teague does not limit the ability of state courts to give broader retroactive effect to "new constitutional rules." However, New York law is unsettled on this point. See People v. Eastman, 85 N.Y.S.2d 265 (1995). In Eastman the court seemed to rely on Teague without explicitly identifying it as the basis for its decision. Eastman was decided before Danforth and the question still remains if Padilla can serve as basis for a retroactive application for post-conviction relief in New York. This uncertainty does not preclude criminal defense attorneys from arguing that a failure to warn of collateral immigration consequences of a criminal matter is a violation of State constitutional principles.

As litigation clarifies the scope of the Chaidez holding in New York, perhaps the most important take away remains the Court's recognition of the fact that professional norms mandate criminal defense counsel to diligently advise their clients about the collateral immigration consequences of any plea.

1 The Chaidez court explicitly distinguished a "separate rule for material misrepresentations." In fact, a criminal defense attorney violates the Sixth Amendment of the United States Constitution if he or she makes an affirmative misrepresentation about his or her expertise or "actively mislead[s] his client on any important matter, however related to a criminal prosecution." An advisory published by the Immigrant Defense Project notes that:

In cases with clear affirmative misstatement, practitioner's can attempt to construct and argument that the attorney's conduct, communications (or lack thereof), and/or emphasis on penal consequences as the sole consideration relative to the plea agreement constituted a "material misrepresentation" of the plea's consequences or operated to "mislead" the defendant into believing that there were no immigration consequences to the plea.

Seeking Post-Conviction Relief Under Padilla v. Kentucky After Chaidez v. U.S., IMMIGRANT DEFENSE PROJECT at 4(Feb. 28, 2013).

Mikhail Izrailev, Esq. is an associate at Wildes & Weinberg P.C., a boutique firm exclusively specializing in the practice of immigration law. He is a graduate of the Benjamin N. Cardozo School of Law, where he served as the Executive Editor of the Cardozo Journal of International and Comparative Law.

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