post-conviction relief

Fed dist ct: Vacates 1998 conviction based on Padilla

An Ohio federal district court judge granted a motion to vacate a 1998 conviction based on the plea attorney’s incorrect advice regarding deportation. United States v. Reid, No. 1:97-CR-94, slip op. (S.D. Ohio Aug. 4, 2011) (Spiegel, J.). In his opinion and order, Judge Arthur Spiegel retroactively applied Padilla v. Kentucky, 130 S. Ct. 1473 (2010), the Supreme Court decision recognizing a duty under the Sixth Amendment right to counsel to advise criminal defendants of the deportation consequences of conviction. Reid's post-conviction attorney, Neil I. Fleischer of The Fleischer Law Firm LLC [...]

7 & 10 Circuits: Padilla is not retroactive; create circuit split with 3d Cir.

The U.S. Courts of Appeals for the Seventh and Tenth Circuits issued decisions in the last ten days holding that Padilla v. Kentucky, 130 S. Ct. 1473 (2010), in which the Supreme Court announced that the Sixth Amendment right to counsel includes advice about deportation consequences of pleading guilty, does not apply retroactively. United States v. Hong, No. 10-6294, slip op. (10th Cir. Aug. 30, 2011) (O’Brien, McKay, and Tymkovich, J.); Chaidez v. United States, No. 10-3623, slip op. (7th Cir. Aug. 23, 2011) (Bauer, Flaum, and Williams, J.). Judge Tymkovich wrote the Tenth Circuit panel’s [...]

1st Padilla cert petition reaches SCOTUS

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. The Court has not yet considered whether it will agree to hear this case, but, as with all cases, [...]

3 Cir: Padilla retroactive; overturns prejudice prong precedent

In the first federal court of appeals decision to address the merits of whether Padilla v. Kentucky, 130 S.Ct. 1473 (2010), applies to convictions that became final prior to the date on which it was issued, the U.S. Court of Appeals for the Third Circuit held that Padilla is retroactive. United States v. Orocio, No. 10-1231, slip op. (3d Cir. June 29, 2011) (Fuentes, Chagares, and Pollak, J.). Judge Pollack wrote the panel’s decision; Judge Chagares concurred in part and dissented in part. This case involved an LPR who pleaded guilty to simple possession of a controlled substance, 21 U.S.C. § [...]

Mass SJC: Padilla retroactive to April 1, 1997; failed to show prejudice

The Massachusetts Supreme Judicial Court, the state’s highest court, 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, applies retroactively to convictions that became final on or after April 1, 1997. Comm. v. Clarke, No. SJC-10888, slip op. (Mass. June 17, 2011) (Ireland, Spina, Cordy, Botsford, Gants, and Duffly, J.). Justice Cordy wrote the court’s unanimous opinion. (Court docket with briefs is available.) This case involves an [...]

PA app ct: Padilla isn’t new constitutional right

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), [...]

MN Ct App: Padilla retroactive

Add another state appellate court to the growing list that have held that Padilla v. Kentucky, 130 S. Ct. 1473 (2010), applies retroactively to convictions that became final prior to the date it was issued (March 31, 2010). The Minnesota Court of Appeals, the state’s intermediate appellate court, recently held that Padilla applies retroactively. Campos v. Minnesota, No. 27CR0933865, slip op. (May 16, 2011) (Stoneburner, Ross, and Bjorkman, J.). This case involves an LPR who pleaded guilty to Minnesota’s simple robbery offense in July 2009 and received “a stay of imposition of sentence for [...]

Tx Ct App: Padilla retroactive; vacates conviction (again)

Following what is fast becoming a trend among Texas intermediate appellate courts as well as courts in other states and a few federal district courts, the Court of Appeals for the First District of Texas held that Padilla v. Kentucky, 130 S. Ct. 1473 (2010), applies retroactively to convictions that became final before the date it was issued (March 31, 2010). Ex Parte Tanklevskaya, No. 01-10-00627-CR, slip op. (Tex. App. May 26, 2011) (Keyes, Higley, and Bland). The court went on to hold that a plea attorney’s failure to advise a noncitizen defendant that she would be inadmissible upon [...]