crimmigration.com

The intersection of criminal law and immigration law

  • Home
  • About César
  • Articles
  • Books
  • Book Tour
  • Talks & Media

Padilla Claims Post-Chaidez: What’s Left??

By Dawn Seibert

The Court held in Chaidez v. U.S. that Padilla v. Kentucky, 559 U.S. 356 (2010) is a “new rule” pursuant to Teague v. Lane, 489 U.S. 288 (1989), and thus under the Teague analysis does not apply retroactively to convictions that were final before Padilla was decided. This is a deeply unjust decision. Ms. Chaidez pleaded guilty two years after Mr. Padilla, and her post-conviction relief (PCR) petition was pending when Padilla was decided. Therefore, the norms supporting the Sixth Amendment duty to advise regarding immigration consequences were firmly in place at the time of her plea, and it is only the fortuity of timing that prevented her case from reaching the Supreme Court first.

The silver lining in this decision is that Chaidez did not dispute Padilla’s assertion that for at least the past 15 years professional norms have obligated defense counsel to advise regarding immigration consequences; in fact, the opinion cited to a 1968 ABA standard that instructed defense attorneys to give advice regarding deportation. Thus, in a post-Chaidez world, Padilla claims stand on a strong footing substantively. Given what is at stake for many of these defendants – separation from family, friends, job, the place they consider home, where they have lived for years or decades – a substantial number of defendants will likely continue to fight hard to get their day in court on the merits of their ineffective assistance of counsel claim.

Chaidez dealt a heavy blow to Padilla retroactivity but it did not render Padilla completely unavailable for challenges to convictions that were final when Padilla was decided. For state and federal PCR petitioners in the same boat as Ms. Chaidez, there are ways to fight the dismissal of those claims.

These are some of the remaining arguments: 1) State courts can apply broader state retroactivity principles to award relief on Padilla PCR motions; 2) there may be an independent state constitutional right to effective assistance of counsel, which is unaffected by Chaidez; 3) Chaidez does not impact the viability of a Padilla claim for a defendant whose conviction was not final (all possibility of appeal exhausted) as of March 31, 2010; 4) Padilla applies in a first post-conviction proceeding, whether federal or state, because such a proceeding is akin to the initial criminal proceeding for purposes of an ineffective assistance claim; 5) Chaidez preserves the right of an immigrant to obtain relief if the immigrant can show that he or she was affirmatively misadvised regarding the immigration consequences of his criminal case; 6) Padilla may continue to apply to state post-conviction cases filed prior to March 31, 2010; and 7) Chaidez does not interfere with the right of an immigrant whose criminal lawyer failed to investigate and advise regarding immigration consequences to present the claim for relief, where appropriate, as one that violated an earlier recognized constitutional duty, such as a duty to negotiate the best possible plea. Practitioners may consult the Immigrant Defense Project’s PCR webpage for research and briefing regarding these arguments.

It remains to be seen what courts will do with cases alleging Padilla violations. Chaidez has the potential for significant negative impact on those claims. The effectiveness of the arguments above depends on the resourcefulness of the defense bar in developing and pressing them forcefully. My initial impression is that courts and prosecutors are expecting immigrant defendants and their attorneys to concede that Chaidez is the end of the story. In fact, as the above arguments demonstrate, it is only the beginning.

[Update: The Immigrant Defense Project and the National Immigration Project released a /files/0/6/4/7/5/167292-157460/Chaidez_advisory_FINAL_20130228.pdf”>here).]

Dawn Seibert works with the Immigrant Defense Project’s litigation team to protect the U.S. Supreme Court’s Padilla v. Kentucky decision by monitoring and supporting post-conviction relief litigation to remedy uninformed pleas. She consults with practitioners on trial strategy in post-conviction relief cases, provides model post-conviction relief materials and sample briefs, and intervenes as amicus in impact cases regarding the scope and retroactivity of Padilla. Dawn is also involved in training criminal defense attorneys on the provision of accurate immigration advice to non-citizen defendants.

  • Share via Facebook
  • Share via LinkedIn
  • Share via Twitter
  • Share via Email

Share this:

  • Twitter
  • Facebook

Posted by César on February 27, 2013 on 9:00 am 19 Comments
Filed Under: Chaidez, commentaries, guest blogger, Padilla v. Kentucky, post-conviction relief, right to counsel, Symposium, U.S. Supreme Court

Comments

  1. ro.c.kya.bc.98 says

    February 28, 2013 at 12:47 am

    The country is running according to the constitution. Her reality has collapsed, yet she makes very little progress in terms of completing her quest, as she spends the majority of the issue becoming increasingly enamoured with the new mystical paradise she discovered. ORDER AT THE STORE Dimension Films has announced a November 26 Thanksgiving Weekend release for John Hillcoat s adaptation of , which stars Viggo Mortensen, Charlize Theron, Guy Pearce, Kodi Smit-McPhee and Robert Duvall. TBD, Magnet Releasing With Here Comes the Devil, Bogliano moves into a supernatural realm: On a family vacation, a couple s son and daughter disappear while exploring a cave-riddled mountainside. This high-profile event has honored actors, musicians and comedians including , , , , and for their support of LGBTQ youth. Initially, Nawaz Sharif wanted to arrest and try Musharraf in a court of law on treason charges but Asif Ali Zardari convinced him not to humiliate the enemy and provide him a safe passage. Rock icon and featured artist, , will perform to support pediatric cancer research and treatment, with an emphasis on the second most common cause of death in children, leukemia. His death sentence defies all logic and morality.

    He s a visionary filmmaker who has so much to offer this franchise. Scheduled for release in February. They are just not aware about their capacity to influence government decisions, she said. White a bigscreen version of a novella included within author Tim Lebbon s White and Other Tales of Ruin is an apocalyptic tale centering on a band of people trapped in a blizzard and systematically picked off by mysterious phantoms. Commission Chairman Justice MA Rashid told The Daily Star that despite some shortcomings the commission has started working according to the work plan with a view to modernising the legal system and updating some old laws. This social online cruelty is used in the forms of e-mail, cell phone pager text messages, instant messaging, defamatory personal Web sites, and defamatory online personal polling Web sites. Salam, Barkat, Rafiq, Shafiur, Jabbar and a few other brave sons of the soil sacrificed their lives on this day to establish Bangla as one of the state languages of the then Pakistan. They are fed up with politicians and their deception. “It’s one of the biggest losses for the music world,” said Kartic Seshadri, a Shankar protege, sitar virtuoso and music professor at the University of California, San Diego. elena was on Ryan s radio show yesterday and spoke about her experiences with the Ryan Seacrest Foundation and her excitement about joining the team. Think I ll leave her in the package.

    Seeing as pretty much the entire Resident Evil Degeneration site is in Japanese, I took the text on over to , and tried to decipher it. The committee made the approval at a meeting at the Cabinet Division of the Secretariat with Finance Minister AMA Muhith in the chair. In the appeal filed with Supreme Court cha

    Reply
  2. Health Food says

    March 17, 2013 at 5:05 am

    Health Food

    This is the best article I have read, thank you, I have learned a lot of knowledge in this area.

    Reply
  3. Inside says

    March 27, 2013 at 1:38 pm

    After Chaidez, Padilla Not Retroactive in Texas: Ex Parte De Los Reyes

    "Applicant below, Joel De Los Reyes, filed an application for writ of habeas corpus, in which he

    Reply
  4. cure for backpain says

    March 27, 2013 at 11:04 pm

    cure for backpain

    Superb blog! Do you have any hints for aspiring writers? I’m hoping to start my own website soon but I’m a little lost on everything. Would you suggest starting with a free platform like WordPress or go for a paid option? There are so many options out there that I’m completely overwhelmed .. Any recommendations? Kudos!

    Reply
  5. casino says

    April 29, 2013 at 6:33 pm

    casino

    crImmigration.com: Padilla Claims Post-Chaidez: What’s Left??

    Reply
  6. michael kors bags says

    May 4, 2013 at 7:05 pm

    michael kors bags

    crImmigration.com: Padilla Claims Post-Chaidez: What’s Left??

    Reply
  7. payday loans uk says

    May 6, 2013 at 12:50 pm

    payday loans uk

    Thanks, this can be the worst factor I’ve read

    Reply
  8. Oakley Jawbone says

    May 9, 2013 at 7:00 am

    Oakley Jawbone

    I enjoy your article.Your article is like a big tree, so that we can be sitting in your tree, feel yourself a real. I feel very moved, very blessedness.

    Reply
  9. OaklEy FuEl CEll says

    May 26, 2013 at 7:53 am

    OaklEy FuEl CEll

    It is the happiest time of my life so far, when I am watching these} funny movies here, since after full day working I was so tired and now feeling perfectly.

    Reply
  10. louis vuitton handbags outlet says

    June 7, 2013 at 12:12 pm

    louis vuitton handbags outlet

    Thanks-a-mundo for the blog.Really thank you! Will read on…

    Reply
  11. Fake Oakley SUnglasses says

    June 25, 2013 at 4:25 am

    Fake Oakley SUnglasses

    It’s not my first time to pay a visit this site, i am browsing this site dailly and obtain good information from here everyday.

    Reply
  12. Womens Oakley Sunglasses says

    July 11, 2013 at 11:28 am

    Womens Oakley Sunglasses

    Very descriptive blog, I enjoyed that bit. Will there be a part 2?

    Reply
  13. fake Oakley Gascan says

    July 12, 2013 at 11:36 am

    fake Oakley Gascan

    Hi buddy, what a quality is! For this YouTube video, I am actually happy, as I have never seen fastidious quality YouTube video before,

    Reply
  14. プラダ バッグ says

    July 25, 2013 at 8:06 am

    プラダ バッグ

    crImmigration.com: Padilla Claims Post-Chaidez: What’s Left??

    Reply
  15. Replica Oakley Holbrook says

    July 30, 2013 at 8:02 pm

    Replica Oakley Holbrook

    crImmigration.com: Padilla Claims Post-Chaidez: What’s Left??

    Reply
  16. android 4.2 cell phones says

    July 31, 2013 at 9:13 am

    android 4.2 cell phones

    U.S. market research firm Strategy Analytics released the latest data show that in the second quarter, the global smart phone shipments up 47% to $ 230 million, the highest single quarter smartphone shipments record. Among them, Samsung is Apple’s smart phone shipments more than doubled; while Android Tablet PC’s global market share has more than iPad, ranked first in the market to 67%

    Reply
  17. zlbmon blog says

    August 2, 2013 at 6:36 pm

    zlbmon blog

    Downloading material from this web site is as effortless |as clicking the mouse rather than other web sites which transfer me here and there on the webpages.

    Reply
  18. lucky blog says

    August 4, 2013 at 2:29 am

    lucky blog

    This article concerning SEO gives clear picture designed for new SEO viewers that how to do SEO, so keep it up. Pleasant job

    Reply
  19. pure garcinia cambogia says

    March 31, 2014 at 7:15 pm

    pure garcinia cambogia

    crImmigration.com: Padilla Claims Post-Chaidez: What’s Left??

    Reply

Leave a Reply to プラダ バッグ Cancel reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.

Subscribe


Recent Posts

  • Federal court enjoins 100-day deportation pause
  • ICE issues enforcement priorities
  • Immigration possibilities & challenges
  • Criminal bars, policing changes, & meaningful reforms in proposed legislation
  • Private prison policy excludes DHS, but impacts migrants
  • Expedited removal & 287(g) survive Biden review, so far

Search

Social Media

Blawg 100 Honoree

The information contained on these pages must not be considered legal advice and does not create an attorney-client relationship. This work by www.crImmigration.com is licensed under a Creative Commons Attribution 4.0 International License.