Generally, on advice of counsel, in 2004, Defendant Orocio enter plea of guilty to simple possession of controlled substance. This conviction triggered removal proceedings against Orocio, an alien resident, in or around 2007. Then Defendant file petition for writ of error coram nobis to challenge his 2004 plea conviction on grounds of ineffective assistance of counsel (that his attorney failed to advice him of the potential immigration consequences of pleading guilty to a federal drug charge).
In PADILLA v. KENTUCKY (2010), the U.S. Supreme Court ruled that STRICKLAND V. WASHINGTON requires plea counsel to advise an alien defendant of the potential removal consequences of a recommended plea. The Court holds that PADILLA v. KENTUCKY is retroactively applicable on collateral review, and we therefore vacate the judgment of the District Court and remand for further proceedings.
For more information: read the Sentencing Law and Policy Blog.
Contrast with Split Seventh Circuit Panel Decides Padilla v. Kentucky is Not Retroactive in Chaidez v. US, No. 10-3623 (7th Cir. Aug. 23, 2011).
For more information see: Padilla v. Kentucky and the Evolving Right to Deportation Counsel: Watershed or Work-in-Progress? (New England Law Review, Vol. 45, p. 101, 2011) by Daniel Kanstroom (Boston College – Law School). Here is the abstract:
Though widely heralded by immigration and human rights lawyers as a “landmark,” possible “watershed,” and even “Gideon decision” for immigrants, Padilla v. Kentucky is perhaps better understood as a Rorschach test, than as a clear constitutional precedent. It is surely a very interesting and important U.S. Supreme Court case in the (rapidly converging) fields of immigration and criminal law in which the Court struggles with the functional relationship between ostensibly “civil” deportation proceedings and criminal convictions. This is a gratifying development, for reasons not only of justice, fairness, proportionality, and basic human decency, but also (perhaps) of doctrinal consistency. The Court’s choice to rely upon the Sixth Amendment is understandable and in many respects salutary. However, this choice is also in tension with the civil/criminal distinction, and it raises complex questions about the process that might be due deportees both in criminal courts and immigration proceedings.
- Tenth Circuit panel decides Padilla v. Kentucky is not retroactive (sentencing.typepad.com)