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March 31, 2010

Padilla prevails in his ineffectiveness claim concerning plea advice

Though the Supreme Court has not yet handed down the big juve LWOP Eighth Amendment case I have been eagerly awaiting, this morning the Justices did resolve the Padilla v. Kentucky case.  Here is the initial SCOTUSblog account:

We have the second and final opinion: No. 08-651, Padilla v. Kentucky; The lower court decision is reversed and remanded in an opinion by Justice Stevens; Justice Alito wrote an opinion concurring in the judgment, joined by the Chief Justice. Justice Scalia dissents, joined by Justice Thomas.

The holding: An alien charged with crime has a constitutional obligation to tell the client that a guilty plea carries a risk that he will be deported. The Court, however, does not decide whether the individual in this specific case has been prejudiced by the lawyer's failure to give that advice.

The opinion is available at this link.  I now need to run off to teach class, but I expect to have a chance to comment on this (very?) important decision later today.

March 31, 2010 at 10:24 AM | Permalink


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How important this decision turns out to be I think will depend on how far the court goes with it. I'm glad to see that they recognize that the distinction between a criminal conviction and its collateral is an artificial one; a perspective that got seven votes.

I am somewhat surprised about the Alito opinion because I actually have a great deal of sympathy for that approach. I think it's a difficult call as a policy matter which is the best approach to fixing the problem in this instance. I would have been equally has happy with a majority opinion written by Alito.

Posted by: Daniel | Mar 31, 2010 10:59:10 AM

Without a finding of prejudice I don't think I would go so far as to say that Padilla prevailed on his IAC claim. He gets another chance at it but proving prejudice in this case is going to be a higher hurdle than the rights violation prong.

After all the feds at least (I forget whether the state argued the same) that there was in fact a rights violation but that Padilla should lose on finding no prejudice.

I wonder if he will realize that when he learns of the result.

As for the attorneys who brought the case, for them it's a clear winner. I also wonder, for future cases, whether there could continue to be no prejudice despite counsel falling short of professional standards as recognized by the supreme court?

Posted by: Soronel Haetir | Mar 31, 2010 11:26:32 AM

I think it will ultimately lead defense attorneys to just say "I don't know" a lot more. Maybe that's a good thing.

Posted by: A.Nony.Mous | Mar 31, 2010 11:32:43 AM

I don't think "I don't know" will cut it in many cases, and it certainly won't when the deportation consequence is clear.

"When the [immigration] law is not succinct and straightforward ... a criminal defense attorney need do no more than advise a non-citizen 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.” (Slip Op. at 11-12); see also footnote 10 (“[D]eportation consequences are often unclear. Lack of clarity in the law, however, does not obviate the need for counsel to say something about the possibility of deportation, even though it will affect the scope and nature of counsel’s advice.”).

Posted by: DEJ | Mar 31, 2010 1:22:18 PM

Regarding prejudice, he “must convince the court that a decision to reject the plea bargain would have been rational under the circumstances.” (Slip Op. at 14). That's going to be a fact-intensive inquiry.

Posted by: DEJ | Mar 31, 2010 1:24:27 PM


I am not sure why you say that this will just lead defense attorneys to say "I don't know" re immigration consequences. The Opinion states: "constitutionally competent counsel would have advised him that his conviction for drug distribution made him subject to auto-matic deportation." S

Sounds like an affirmative duty to advise, not merely to remain silent. As Alito puts it, counsel must, at the very least, inform the “defendant that a criminal conviction may have adverse immigration consequences.” The majority opinion is fairly clear on this point: "A holding limited to affirmative misadvice would invite two absurd results. First, it would give counsel an incentive to remain silent on matters of great importance, even when answers are readily available. Silence under these circumstances would be fundamentally at odds with the critical obligation of counsel to advise the client of “theadvantages and disadvantages of a plea agreement. . . When attorneys know that their clients face possible exile from this country and separation from their families, theyshould not be encouraged to say nothing at all."

I just hope that the Court extends this decision to fairly include other deficient advising (for example the recent decision denying habeas relief in Appelbey v. Warden (4th Cir)). In Appelbey, the def pled guilty to a 1-3 year range, but under the WV's recidivist statute Appelbey got life in prison. One would think that being advised that you face life in prison is no less important than being advised that you face deportation -- in both instances the lower court denied relief on the theory that the failure to advise related only to "collateral" matters.

Posted by: JMAR | Mar 31, 2010 1:56:29 PM

Anyone have any thoughts on how this ruling might impact another "civil" area of law with punitive-like consequences: sex offender registration? A friend thinks SCOTUS already has granted cert on a case with this issue, but I don't recall offhand if that's true.

Posted by: Ryan S | Mar 31, 2010 2:23:47 PM

this result is not very surprising in North Carolina. Judges are required to inquire of the defendant during the plea colloquy whether they understand they could be deported for the offense.

bruce cunningham

Posted by: bruce cunningham | Mar 31, 2010 2:26:42 PM


I think that the feds would be fools in this situation to try and argue the prejudice claim. While conceptually I agree with the court that they need not reach that issue now, I think it's clearly obvious which way the wind is blowing on the court in this case. If it comes back on the prejudice issue, the government is going to lose.

Posted by: Daniel | Mar 31, 2010 6:05:49 PM

nice ryan s.

"Anyone have any thoughts on how this ruling might impact another "civil" area of law with punitive-like consequences: sex offender registration? A friend thinks SCOTUS already has granted cert on a case with this issue, but I don't recall offhand if that's true."

that was one of the things that went through my mind as well. Might not apply to the lawyers of the 100's of THOUSANDS who took plea deals that have been ilegaly added to it who predate the registry. But would certainly apply to the other 10's and 100's of thousands who had plea's that called for limited exposeure to the regisry or no registry who have seen been ilegally foreced to either RE REGISTER or now REGISTER FOR LIFE!

Posted by: rodsmith | Mar 31, 2010 7:03:57 PM

I wonder if the Court's willingness to question the direct vs. collateral consequence issue will extend to sentences which include the suspension or revocation of driver's licenses. I am a criminal defense attorney and in Florida, at least, the courts have been unwilling to give defendants postconviction relief where the trial lawyer failed to advise them of the automatic license suspension or revocation.

Posted by: William Ponall | Mar 31, 2010 8:53:57 PM

that's becasue william florida is one of the more NAZI states!

Posted by: rodsmith | Apr 1, 2010 1:24:09 AM

if lower courts do extend to driver's license suspension, Alito and (especially) Scalia will be in their glory -- that would be just the reductio ad absurdium example they would need to fuel their rhetorical efforts...

As for Appelbey v. Warden, based on the above description, that sounds wrong even before Padilla. Is a habitual-offender statute that will require (or at least authorize) a life sentence really a collateral consequence?? That sounds like a direct consequence to me, as it directly affects the term of years imposed at sentencing. Moreover, after Padilla, I can't imagine the Court countenancing a lawyer advising a client "just plead guilty and you'll do 1 to 3," when the lawyer should have known that he would (or could) do life.

Posted by: Anon | Apr 1, 2010 1:17:34 PM

I need to see the opinion. The "alien" has the constitutional obligation to tell the "client"...? It is 2:45 a.m. here where I am speaking from but what time was the above sentence articulated? Run off to class and I will read the opinion.

The lawyer always had the obligation to tell the client of the consequences of a plea. The alien's obligation is to tell the lawyer that the alien is an alien. I had a client, who was an alien, deny to me that she was an alien. Said that she was a citizen. The plea did not help her in the deportation process which ensued.

Is there not another case with the name "Padilla" from the US Sup Court? What do these Padilla guys do but stay up shit creek?

Posted by: mpb | Apr 2, 2010 3:03:09 AM

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