Two-and-a-half years after pushing the Supreme Court to change the face of crImmigration law, José Padilla convinced Kentucky’s intermediate appellate court to vacate his conviction. Padilla v. Kentucky, No. 2011-CA-000553-MR, slip op. (Ky. Ct. App. Sept. 28, 2012) (Dixon, Moore, and Thompson, JJ.). Judge Thompson wrote the panel’s decision.
After convincing the U.S. Supreme Court that his defense attorney’s incorrect advice that he would not be deported upon conviction for trafficking over fifty pounds of marijuana because he had been in the United States for over 40 years and served in the military fell below the objective standard of reasonably competent performance required by Strickland v. Washington, 466 U.S. 668 (1984), Padilla took his case back to the Kentucky state courts to argue that this deficient performance prejudiced him.
The state trial court denied Padilla’s claim, concluding that it would have been irrational of him to turn down the plea offer and instead go to trial because the evidence against him was strong and the plea offered a reduced sentence. Kentucky v. Padilla, No. 01-CR-00517, slip op. (Ky. Circuit Ct., Hardin Cnty, Feb. 18, 2011) (Easton, J.). According to the trial court, Padilla’s deportation “would be mandatory on conviction of an aggravated felony, as in this case.” Kentucky, No. 01-CR-00517, slip op. at 15. The trial court did not explain why it concluded that his conviction would be deemed an aggravated felony by an immigration court. The Supreme Court twice cited the controlled substances offense provision when explaining why Padilla’s conviction subjected him to presumptively mandatory deportation. The trial court then added, “The only negotiable matter was the length of the sentence, and this plea offered Padilla the minimum of five years to serve with the remainder probated. A rational defendant would not have risked a sentence of ten years by insisting on going to trial in this case.” Kentucky, No. 01-CR-00517, slip op. at 15.
Kentucky’s intermediate appellate court disagreed. It began by explaining Padilla’s task: “Padilla had to demonstrate that he rationally would have insisted on a trial, not that an acquittal at trial was likely.” Padilla, No. 2011-CA-000553-MR, slip op. at 12. In determining whether a decision to go to trial is rational, the court added, preserving the right to remain in the United States might be more important to an LPR than the strength of the prosecution’s case or the potential sentence that may be imposed after trial. Padilla, No. 2011-CA-000553-MR, slip op. at 13.
This, of course, depends on “the importance a particular defendant places upon preserving his or her right to remain in this country.” Padilla, No. 2011-CA-000553-MR, slip op. at 14. And how much a defendant wants to stay in the United States, the court implied, depends on whether the defendant is a long-time LPR or more recent arrival: “A noncitizen defendant with significant ties to this country may rationally be willing to take the risk of a trial while the same decision by one who has resided in the United States for a relatively brief period of time or has no family or employment in this country may be irrational.” Padilla, No. 2011-CA-000553-MR, slip op. at 14.
Given Padilla’s long history in the United States, his LPR status, his extensive family ties here (a wife and three disabled children who the court described as United States citizens, and another three adult children), his characterization of deportation as “putting a gun” to his head, and his wife and daughter’s statement “that Padilla’s banishment from this country was a death sentence for their life as a family,” the court seemed inclined to conclude that going to trial would have been rational. Padilla, No. 2011-CA-000553-MR, slip op. at 15.
But instead of ending its inquiry with the impact that deportation would have on Padilla and his family, the court turned to the strength of the prosecution’s case. “Although the evidence against Padilla is strong,” the court wrote, “it is far from conclusive.” Padilla, No. 2011-CA-000553 MR, slip op. at 15. In particular, it’s possible that a jury would conclude that he had no knowledge of the drugs in his tractor-trailer because, as an independent truck driver, he did not have permission to inspect his load. Padilla, No. 2011-CA-000553-MR, slip op. at 15. Consequently, going to trial would have been rational, the court concluded. Padilla, No. 2011-CA-000553-MR, slip op. at 16.
Given that the Supreme Court will hear arguments next Tuesday in a case presenting the issue of whether Padilla’s landmark holding applies retroactively, it seems appropriate that the individual whose name has become synonymous with crImmigration law might finally have arrived at a conclusion. Of course, the state might appeal to the Kentucky Supreme Court or decide to reprosecute. No word yet on whether they have elected to pursue either option.