Just got word that SCOTUS denied cert in Gomez. I wish I could say that this is the end of the Padilla retroactivity questions, but I am sure the question will probably just be framed differently in the next term. As many have stated here, we need to stay on top of this because it is not going away anytime soon.
Thank you for all your updates on this, Eric. I've got a petition on appeal that has me watching this closely.
Thanks for the update and I am glad it worked out well for you. I still have one up there on this issue and I am waiting with baited breath to see what they will do with it. I hope you won't mind if I use you as a resource if they decide to take it up; some of the nine wise souls' recent pronouncements have gotten me thinking I might need all the help I can get if they do address it.
Here is a copy of the Brief in Opposition in Gomez. Some of you may notice the language is familiar because a lot of it came from briefs that I got from y'all. Far as I can tell the citations were up to date as of the date the brief was filed so if anyone needs to, feel free to use as necessary. Just remember to pay it forward.
Gomez_Brief_Final.pdf (165 Kb, 20 downloads) Gomez Brief
I guess this is never really going to go away so we need to keep paying attention. The lawyers who argued Padilla in front of the Supreme Court are doing everything they can to try and get the affirmative misadvice issue back in front of the Supreme Court, after which I am sure they will try and re-open all the retroactivity questions. I got a subsequent writ on Gomez, which I am not too concerned about, but I also got an email from Harris County that they have another case similar to Gomez with Padilla type issues that is currently at the Supreme Court. I'm sure almost every office in the state has one of these writs sitting on a desk somewhere and if you don't right now then get ready for it. And you might want to put a little extra effort in on your findings of fact and conclusions of law because the next letter you will be getting might be from the United States Supreme Court requesting your reply.
There are several things about the decision in Jae Lee that deserve discussion, but I choose these two: nowhere is Chaidez mentioned (even though Lee's plea occurred before the decision in Padilla) and the Chief Justice (the majority) makes no effort to refute what Justice Thomas says in the last two paragraphs (part IV) of his opinion. There may not be a flood of new writs because everyone who wants to challenge a pre-Padilla plea has either likely already been deported as a result of his conviction or can safely assume there really is nothing to worry about. But, be careful about alleging such a prior for enhancement, as that tactic will yield a can of worms. Turn Back the Clock
Even after the decision in Lee, it remains possible to lose an immigration writ based on lack of proof of prejudice. See Ex parte Castaneda, No. 05-17-01135-CR (Dallas 02/21/18). It is, however, clear that no advice by the criminal defense attorney is insufficient, i.e., ineffective assistance per se.
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