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August 23, 2011

Split Seventh Circuit panel decides Padilla v. Kentucky is not retroactive

Interesting ruling today by a split Seventh Circuit panel today in Chaidez v. US, No. 10-3623 (7th Cir. Aug. 23, 2011) (available here), starts this way:

In Padilla v. Kentucky, 130 S. Ct. 1473, 1486 (2010), the Supreme Court held that an attorney provides ineffective assistance of counsel by failing to inform a client that a guilty plea carries a risk of deportation.  The district court concluded that Padilla did not announce a new rule under the framework set forth in Teague v. Lane, 489 U.S. 288 (1989), and consequently applied its holding to Petitioner Roselva Chaidez’s collateral appeal.  Because we conclude that Padilla announced a new rule that does not fall within either of Teague’s exceptions, we reverse the judgment of the district court.

A lengthy dissent by Judge Williams begins this way:

At the time Roselva Chaidez, a lawful permanent resident since 1977, entered her plea, prevailing professional norms placed a duty on counsel to advise clients of the removal consequences of a decision to enter a plea of guilty.  I would join the Third Circuit in finding that Padilla v. Kentucky, 130 S. Ct. 1473 (2010), simply clarified that a violation of these norms amounts to deficient performance under Strickland v. Washington, 466 U.S. 668 (1984). See United States v. Orocio, ___ F.3d __, 2011 WL 2557232 (3d Cir. June 29, 2011).  As such, Padilla did not announce a “new rule” under Teague v. Lane, 489 U.S. 288 (1989), and is therefore retroactively applicable to Chaidez’s coram nobis petition seeking to vacate her guilty plea on the grounds that her counsel was ineffective.  For the reasons set forth below, I dissent.

In the wake of this ruling on the heels of a contrary ruling by the Third Circuit, it would seem like the question going forward is not whether, but just when and how the Supreme Court will take up and resolve this issue.

August 23, 2011 at 06:22 PM | Permalink


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Why in the world would any nation tolerate a foreign criminal in its midst? This woman needs to be deported to Mexico yesterday.

Posted by: federalist | Aug 23, 2011 7:25:09 PM

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