Failure to Explain Deportation Consequence Not Necessarily Reviewable in Old Cases

May 17, 2012

About two years ago, the Supreme Court decided in Padilla v. Kentucky that the Sixth Amendment imposes a duty to advise criminal defendants about the potential deportation/removal consequences arising from a guilty plea. Failure to do so nullifies the plea.

Before anyone gets too excited, however, the Fifth Circuit decided this month that Padilla is not applicable retroactively and therefore may not serve as a basis to collaterally challenge a conviction. In other words, even though a defendant pled guilty without having received what is now considered essential advice, he cannot complain about the error if it occurred before March 2010.

In United States v. Amer, the defendant filed a motion to vacate his conviction pursuant to 28 U.S.C. § 2255, alleging his attorney failed to inform him that his guilty plea carried a risk of deportation. It appears the government did not dispute that Amer's attorney failed to give him advice about deportation consequences. On its face, this is a challenge squarely fitting within Padilla. Not so fast, Mr. Padilla. In situations where a prisoner is asserting a right based on a recent Supreme Court case, the law allows relief only if (a) the prisoner's claim is made within one year of the Supreme Court "initially" recognizing the right, (b) the prisoner's claim is based on a right "newly recognized" by the Supreme Court, and (c) the right was "made retroactively applicable to cases on collateral review." See 28 U.S.C. § 2255(f)(3). Where retroactivity is not clear, courts apply a formula outlined in another Supreme Court case, Teague v. Lane, to determine whether the rule can be applied retroactively. In Teague, the basic premise is "new" rules of criminal procedure are generally not retroactive.

Unfortunately, the Supreme Court has not yet provided guidance as to whether its holding in Padilla is retroactive. Did the Padilla case requiring defense lawyers to discuss deportation consequences prior to a guilty plea announce a "new" rule of criminal procedure, or was it merely a reasonable extension of an old rule? To be fair, the Fifth Circuit noted in its holding that it was "look[ing] forward to likely resolution of this question by the Supreme Court" as the Supreme Court has granted certiorari to address the matter. Until that time comes, however, the Fifth Circuit decided that a prisoner who suffered ineffective counsel in this manner is out of luck in this circuit if the case was final before March 2010. In Amer, the Fifth Circuit applied the Teague retroactivity formula and held that the Padilla case now requiring advice of deportation consequences announced a "new" rule of criminal procedure, and therefore does not apply retroactively.