Is Texas going to make it harder for migrants to receive effective assistance of counsel?

The U.S. Supreme Court’s landmark decision in Padilla v. Kentucky, 559 U.S. 356 (2010), holding that the Sixth Amendment right to effective assistance of counsel obligates criminal defense attorneys to inform migrant clients about the immigration consequences of conviction continues to resonate in the state courts. Just last month the Wisconsin Supreme Court issued two decisions gutting Padilla’s applicability in that state (see my analysis of those decisions here). Now, it seems, Texas may be preparing to follow Wisconsin’s lead. The Texas Court of Criminal Appeals, the highest criminal [...]

Wash. Supreme Court: Padilla is retroactive; admonishment imposes on attorney duty to advise about immigration consequences

Continuing the inevitable development of right-to-counsel case law in the states courts, the Washington Supreme Court held last week that the U.S. Supreme Court’s landmark opinion in Padilla v. Kentucky, 559 U.S. 356 (2010), applies no matter when the conviction was entered. In re Tsai, No. 88770-5, slip op. (Wash. May 7, 2005). A divided Washington Supreme Court—five justices in the majority, four in dissent—concluded that Padilla was not a new rule of constitutional law, thus it applies retroactively. This case involved two separate claims that were consolidated at the state supreme court [...]

CT Supreme Court: Padilla isn’t retroactive

In a much anticipated case, the Connecticut Supreme Court held this week that Padilla v. Kentucky, 559 U.S. 356 (2010), does not apply retroactively to state convictions. Thiersaint v. Commissioner of Correction, No. SC 19134, slip op. (Conn. April 14, 2015). In Padilla, the U.S. Supreme Court held that the Sixth Amendment right to effective assistance of counsel requires criminal defense attorneys to advise noncitizen clients about the immigration consequences of conviction. This week’s Connecticut decision makes it less likely that migrants who were denied such advice prior to March 31, [...]

7 Cir: Padilla & Chaidez don’t differentiate between no advice & bad advice; neither merits retroactive application of Sixth Amendment

The U.S. Court of Appeals held that the Sixth Amendment right to receive advice about the immigration consequences of a conviction does not apply prior to March 31, 2010 whether the criminal defense attorney affirmatively provided incorrect advice or simply failed to say anything about possible immigration consequences. Chavarria v. United States, No. 11-3549, slip op. (7th Cir. Jan. 9, 2014) (Cudahy, Ripple, and Hamilton, JJ.). Judge Cudahy wrote the panel’s opinion. This case involved an LPR who was convicted in 2009. After the Supreme Court announced in Padilla v. Kentucky 559 U.S. 356 [...]

Mass. High Court Breathes New Life into Padilla in Commonwealth v. Sylvain

By Christopher N. Lasch In an important decision last week the Massachusetts Supreme Judicial Court (SJC) confirmed it will continue to part ways with the United States Supreme Court over the retroactive application of the Supreme Court’s 2010 decision in Padilla v. Kentucky, 559 U.S. 356, requiring effective crimmigration counsel. In February, the U.S. Supreme Court issued Chaidez v. United States, 133 S. Ct. 1103 (2013), holding Padilla is not to be applied retroactively. Chaidez (summarized here in February) was a disappointment on any number of levels, as was discussed extensively on [...]

Criminal Defense After Padilla v. Kentucky

In the three-and-a-half years since the Supreme Court recognized that the Sixth Amendment right to counsel requires advice about the deportation consequences of conviction in the landmark Padilla v. Kentucky, 130 S. Ct. 1473 (2010), courts and commentators have had a lot to say about its impact. Without question, nothing has been more important than the Supreme Court’s decision last term in Chaidez v. United States, No. 11-820, slip op. (U.S. 2012), in which the Court refused to apply Padilla’s holding retroactively. Despite a second round at the Supreme Court, though, not much has appeared [...]

Tex Ct Crim App: Padilla not retroactive

The highest criminal court in Texas held that Padilla v. Kentucky, 130 S. Ct. 1473 (2010), does not apply retroactively to convictions that had become final prior to March 31, 2010, the date Padilla was announced. Ex parte De Los Reyes, No. PD-1457-11, slip op. (Tex. Crim. App. March 20, 2013) (Hervey, Keller, Price, Johnson, Keasler, Cochran, and Alcala, JJ.). Justice Hervey delivered the court’s opinion. This case involved an LPR who was convicted of theft in 1997 and again in 2004. DHS claims that theft is a crime involving moral turpitude, thus De Los Reyes is removable for having been [...]

Trying (& Failing) to Find Logic in Chaidez

By Michael S. Vastine This post could easily become an unbecoming rant, given the frustration that I share with my colleagues in the immigrant defense bar over the reasoning and outcome of Chaidez v. Holder, 568 U. S. ____, No. 11-820, slip op. (U.S. Feb. 20, 2013). Chaidez held that the Sixth Amendment right to effective representation, which as enumerated in Padilla v. Kentucky, 130 S.Ct. 1473 (2010), includes the right to accurate advice regarding the obvious immigration consequences of a guilty plea, does not apply retroactively to cases that were final at the time Padilla was [...]