Monthly Archives: February 2013

Supreme Court holds retroactive ineffective assistance of counsel claims cannot be made under Padilla.

By Peek & Toland on February 20, 2013

In 2010, the U.S. Supreme Court in Padilla v. Kentucky, held that the immigration consequences of a criminal conviction, a collateral consequence, were the type of subject matter that a competent and reasonable criminal defense attorney should discuss with his client on whether or not to accept a plea bargain. Prior to Padilla, the Court had held that only incorrect advice given on the immigration consequences, an act of commission, were grounds for a ineffective assistance of counsel. However, Padilla, expanded that ruling to include an attorney’s failure to advise his clients of the immigration consequences of his criminal plea, when those consequences are clear, an act of omission. The question left to the U.S. Supreme Court and answered with today’s ruling in Chaidez v. U.S., is whether an immigrant defendant may retroactively seek ineffective assistance of counsel claims for their attorney’s failure to advise him or her on the immigration consequences of a plea bargain conviction.

Today the U.S. Supreme Court held that the Padilla decision of 2010 is not retroactive. Thus, if a defendant has a conviction prior to March 2010 in which his attorney failed to inform him or her of immigration consequences, the defendant cannot petition to have his case reheard. However, the Court will allow defendants to petition for relief if the defendant’s attorney gave him wrong or incorrect legal advise regarding the immigration consequences of his criminal conviction through a plea bargain.

Jeff Peek, partner at Peek & Toland, wrote an entire article addressing these legal issues in last month’s newsletter . To read his article and more about Padillaa and Chaidez, click here.

Posted in Immigration