An intermediate appellate court in Pennsylvania held that Padilla v. Kentucky, 130 S.Ct. 1473 (2010), in which the U.S. Supreme Court held that criminal defense attorneys must advise their noncitizen clients about the deportation consequences of a plea, is not a new constitutional right. Commonwealth v. Garcia, No. 1815 MDA 2010, 2011 PA Super. 124, slip op. (Penn. Sup. Ct. June 17, 2011) (Stevens, Gantman, and Fitzgerald, J.). Presiding Judge Stevens wrote the panel’s decision.
This case involved an LPR convicted by guilty plea of delivery of a controlled substance, 35 P.S. § 780-113(a)(30), on August 12, 2002. Garcia, No. 1815 MDA 2010, slip op. at 1. García was sentenced to three years probation, which he subsequently violated and was sentenced to a term of imprisonment on May 18, 2009. Less than one month after Padilla was decided, he filed a post-conviction relief application seeking to vacate his conviction on the basis that his criminal defense attorney did not advise him of the deportation consequences of his conviction. Garcia, No. 1815 MDA 2010, slip op. 3.
Under the state’s Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A. § 9545, a post-conviction relief application must be filed within one year of sentencing. Because García missed that deadline, he argued that Padilla constitutes a new constitutional right so as to fit one of three recognized exceptions to the post-conviction filing deadline. Garcia, No. 1815 MDA 2010, slip op. at 6.
After conducting a lengthy review of Padilla, the Pennsylvania court determined that in Padilla the U.S. Supreme Court merely applied the long-recognized ineffective assistance of counsel framework enunciated in Strickland v. Washington, 466 U.S. 668 (1984), to a new set of facts. Garcia, No. 1815 MDA 2010, slip op. at 11, 12. Accordingly, the court
“conclude[d] that the United States Supreme Court’s application of Strickland to a new set of facts (counsel’s advice regarding the risk of deportation) and its resulting holdings based on current professional standards and expectations, did not establish new constitutional rights. Simply put, the ‘constitutional right’ at issue in Padilla, i.e., the right to effective assistance of counsel during the guilty plea process, is not ‘new;’ but rather, was defined in scope under the well-established ambit of Strickland.”
This is bad news for Garcia because he missed the post-conviction relief filing deadline and was unable to fit within any of the deadline’s recognized exceptions. Garcia, No. 1815 MDA 2010, slip op. at 13.
This ruling, however, is not particularly surprising given than many courts have considered whether Padilla recognizes a new constitutional right for purposes of determining whether Padilla is to apply retroactively under the Supreme Court’s retroactivity analysis in Teague v. Lane (which I have discussed at length previously). Like the Pennsylvania court here, several courts have determined that Padilla does not recognize a new constitutional right; rather, it merely applies Strickland to a new set of facts, thus retroactive application is appropriate.