TDCAA Community
Padilla retroactivity to be considered by Supreme Court

This topic can be found at:

April 30, 2012, 16:09
Padilla retroactivity to be considered by Supreme Court
"In Padilla v. Kentucky, 130 S. Ct. 1473 (2010), this Court held that criminal
defendants receive ineffective assistance of counsel under the Sixth Amendment
when their attorneys fail to advise them that pleading guilty to an offense will
subject them to deportation. The question presented is whether Padilla applies to
persons whose convictions became final before its announcement."
Docket Sheet
April 30, 2012, 17:10
Texas courts have been presuming retroactivity. Anyone have a case in which a Texas court has been willing to consider that argument?
May 01, 2012, 07:35
John A. Stride
Here is one decided this week:


The issue is also pending on PDR in the CCA: 11-1457 DE LOS REYES, JOEL 01/11/12
Did the Court of Appeals err in holding that Padilla v. Kentucky, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), applied
retroactively to the collateral review of state convictions that were final when the Padilla opinion was issued?

BTW: Writ responses ought to include the argument until the matter is resolved by the SCOTUS and, then, depending on the result!

This message has been edited. Last edited by: John A. Stride,
May 04, 2012, 08:33
John A. Stride
From Kent Scheidegger at Crime and Consequences blog-

"The Teague question is an easy one if the Court is faithful to its precedents. Of course Padilla is a new rule for Teague. The Court could not hold otherwise without eviscerating Teague."
May 04, 2012, 14:23
David Newell
Wow. I thought it was a closer call than that. If this weren't funneled through the well-established standards of Strickland, I'd agree. But Mr. Scheidegger is very smart (as is Mandy Miller who handled that case you linked to), so I probably need to take another look at Teague.
May 04, 2012, 15:59
John A. Stride
If it is such an easy answer, the SCOTUS justices could have prevented a good deal of litigation by just saying so when they issued their opinion.

This message has been edited. Last edited by: John A. Stride,
May 04, 2012, 16:09
David Newell
What Court have you been watching? SCOTUS doesn't do that. They throw things out and tell the states "discuss." Personally, I always thought that Stevens' intended to leave it ambiguous so it would have the most impact.
May 04, 2012, 16:51
John A. Stride
Let the injustice continue!
May 04, 2012, 23:09
David Newell
Are we really depending on Verrilli? Do we need an organized effort to file amicus . . . amicuses . . . amici . . . friends of the court briefs?
May 05, 2012, 13:25
Martin Peterson
Isn't Padilla at least as much a new rule as Crawford was? See Whorton v. Bockting, 549 U.S. 406 (2007), unanimous decision reversing the Ninth Circuit.

Maybe it depends on whether the requirement of effective counsel is procedural or substantive in nature. The distinction between those is certainly tricky.
May 05, 2012, 21:21
David Newell
Don't know that it is as they jettisoned Ohio v. Roberts or part of it in Crawford. In Padilla they acted like it wasn't a new rule, just an old standard applied to a new circumstance. But it sure feels like a new rule.
May 06, 2012, 13:26
Martin Peterson
Well, as I see it, Strickland had relatively little to do with the voluntariness of guilty pleas. It concerned the assistance Washington received in relation to his punishment (and affirmed the less-than-stellar strategy his attorney had pursued). You can say Padilla was foreshadowed or even encompassed by Strickland all that you want, but that is a myth, especially in light of the consensus about the meaning of such cases as Brady v. U.S. and Parker v. North Carolina. Let justice and reason ultimately prevail!
May 06, 2012, 15:03
David Newell
Hey, I don't want to be arguing for a retroactive application. And I agree, just because a few courts have held Padilla to be retroactive doesn't mean I have justice or common sense on my side. But it's not exactly a myth that Padilla was decided under Strickland. I hope SCOTUS says it's a new rule. I just think it's a closer call than I'd like it to be.
May 06, 2012, 20:42
Martin Peterson
David, the "you" was not meant to refer to you. I did not mean to imply you were advocating a position contrary to JS.

Without a doubt, the court cited Strickland as the basis for its holding. That fact cannot be ignored.

But, the result in Padilla was not a logical extension of Strickland and I remain convinced any argument to the contrary qualifies as mythical in nature. After all, it took more than 25 years to construct the leaning tower of Padilla—even though guilty pleas have been a very common form of disposing of criminal charges against non-citizens. Plus, the court made a bad assumption about whether the majority of attorneys (including many, many judges) thought the purpose of their work on the criminal case was anything other than to resolve the threatened criminal penalty as best they could. The Seventh Circuit majority wrote the only opinion on the subject (in Chaidez) that makes any sense as a matter of logic and policy. The Supreme Court of New Jersey arrived at that conclusion, and that is good enough for me.

Surely a majority of the Supremes will see that the standards were still evolving and also put some burden on non-citizens to know (apart from the words of thier criminal defense attorney) that criminal conduct reaps bad things, including a change in the wording on the welcome mat. But, then, I also realize the stars do not always align as expected. Good an answer is now on the way; sad it will take so long in arriving.
May 10, 2012, 12:24
David Newell
A victory for justice and common sense!

U.S. v. Amer
May 10, 2012, 21:35
Martin Peterson
Now the CCA can feel comfortable in reversing El Paso and Houston-1 and at least know that Texas convicts will be unable to flood the Federal courts after losing in one of our State courts. We can hope that De los Reyes is now quickly decided in the right way.

It is going to be amazing to see how many fewer courts will now follow Orocio or the Massachusetts-Maryland rulings. Also, instead of all the state's cases ending up on the USSC docket it will be individuals, who may not even still be in the country by the time Chaidez is decided, whose cases coagulate there. I see a light at the end of this tunnel.
May 11, 2012, 08:34
John A. Stride
Will the SCOTUS decide the issue as briefly and easily?
May 18, 2012, 04:11
Martin Peterson
In Ex parte Haddad, the Dallas Court of Appeals says this: "prior to Padilla, admonishments about the deportation consequences of a plea were considered a collateral matter, and could not support a claim of ineffective assistance of counsel." To me, if the "legal basis for the claim was unavailable" earlier, that means a "new rule" (under Teague analysis) was required before the claim could become available. While saying such ruling was unnecessary, did not the court, in effect, declare Padilla is a new rule (and therefore inapplicable to cases already final)? Moreover, just because something was unavailable earlier does not mean it is available now. Seems to me a retroactivity holding would be necessary, except for the fact that Haddad could not show the requisite certainty of an immigration consequence existed in 1995. Nor do I buy the suggestion that the collateral consequence doctrine was objectively unreasonable before Padilla.

The court's quick and easy denial of laches does indeed illustrate the need for a statute of limitations or similar limitation in habeas cases. There is little true equity in allowing someone to avoid prosecution for a crime merely because he is not a citizen and therefore in need of a special type of advice not customarily provided by a criminal defense attorney.
June 24, 2012, 06:41
Martin Peterson
OK, I admit the light was very dim and that the tunnel has twists and turns. Still, I am mildly surprised to see the Dallas court choose Orocio over Amer. Of course, it gave no real clue for why it did so. Olvera.

Has anyone had success in re-trying a case that was re-instated on the docket by virtue of an 11.072 writ? Is anyone even attempting to accomplish this?
June 24, 2012, 21:26
We have managed to retry some marijuana cases that came unglued. A motion for rehearing is in the works for Olvera.