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Padilla Rule On Deportation Advice Isn't Retroactive, Supreme Court Says

Publication Date: 
February 26, 2013
U.S. Law Week - BNA
Lance J. Rogers

Professor Jeffrey Fisher is quoted in this U.S. Law Week piece by Lance J. Rogers on Padilla v. Kentucky and how be believes the "most important thing looking forward" is that the Court left open the question on whether Padilla applies to timely filed first petitions for post-conviction relief."'

Defense counsel's duty under Padilla v. Kentucky, 78 U.S.L.W. 4235 (U.S. 2010), to warn a client about the possible immigration consequences of a guilty plea is a new rule that does not apply retroactively on collateral review, the U.S. Supreme Court announced Feb. 20 (Chaidez v. United States, U.S., No. 11-820, 2/20/13).

Under Teague v. Lane, 489 U.S. 288 (1989), a person whose conviction is already final on direct review may not benefit from a “new” rule of criminal procedure crafted by the Supreme Court. A rule is deemed new for purposes of Teague if the result was not dictated by existing precedent when the defendant's conviction became final.


The lawyer who argued the case for the defendant, Jeffrey L. Fisher, Stanford Law School's Supreme Court Litigation Clinic, Palo Alto, Calif., told BNA that "the most important thing looking forward" is the fact that the court left open the question whether Padilla applies to timely filed first petitions for post-conviction relief.

In the final footnote of the opinion, the court acknowledged the defendant's argument that the retroactivity bar does not apply "when a petitioner challenges a federal conviction, or at least does not do so when she makes a claim of ineffective assistance." However, the court left resolution of that issue for another day, saying it was not adequately raised in the lower courts.

"If Padilla applies in such circumstances," Fisher explained, "then people like Chaidez can still get relief, while those who have already pursued post-conviction relief or would be time-barred from doing so presumably cannot."