Holding under Maryland law a Defendant receives ineffective assistance of counsel when counsel fails to
inform him of the immigration consequences of pleading guilty. This holding applies
retroactively to all pleas entered after the effective date of the enactment.
Holding that the trial court may not modify a final order once 21 days have passed even if defendant received ineffective assistance of counsel.
The Rhode Island Supreme Court held that Padilla v. Kentucky, 130 S. Ct. 1473 (2010), only requires advice that a plea would make a defendant eligible for deportation and no prejudice is shown if the defendant could have received a longer sentence at trial than was actually received by pleading.
A Texas intermediate appellate court vacated a conviction based on a Padilla claim where the plea attorney advised the noncitizen defendant about the possibility of deportation. Salazar v. State, No. 11-11-00029-CR, slip op. (Tex. Ct. App. Aug. 31, 2011) (Wright, McCall, and Hill, J.). Justice Hill wrote the panel’s decision.
Though widely heralded by immigration and human rights lawyers as a “landmark,” possible “watershed,” and even “Gideon decision” for immigrants, Padilla v. Kentucky is perhaps better understood as a Rorschach test, than as a clear constitutional precedent. It is surely a very interesting and important U.S. Supreme Court case in the (rapidly converging) fields of immigration and criminal law in which the Court struggles with the functional relationship between ostensibly “civil” deportation proceedings and criminal convictions. This is a gratifying development, for reasons not only of justice, fairness, proportionality, and basic human decency, but also (perhaps) of doctrinal consistency. The Court’s choice to rely upon the Sixth Amendment is understandable and in many respects salutary. However, this choice is also in tension with the civil/criminal distinction, and it raises complex questions about the process that might be due deportees both in criminal courts and immigration proceedings.
The U.S. Court of Appeals for the Tenth Circuit recently held that the government’s burden of proving that a noncitizen is removable does not include a requirement that it show that the underlying criminal conviction satisfied the Sixth Amendment right to counsel. Waugh v. Holder, No. 10-9551, slip op. (10th Cir. June 22, 2011) (Holmes, McKay, and Porfilio, J.). Judge McKay wrote the panel’s decision.
The first petition for writ of certiorari based on Padilla v. Kentucky, 130 S.Ct. 1473 (2010), has reached the U.S. Supreme Court. Emmanuel Morris v. Commonwealth of Virginia, No. 11—- (U.S. 2011). The petitioner, Emmanuel Morris, asks the Supreme Court to determine whether Padilla applies retroactively and whether Virginia may impose strict time and custody requirements on post-conviction relief such that individuals like Morris can find no state law mechanism through to raise Padilla claims.
Click here for Ex parte Yekaterina
Click here for the opinion.