Tuesday, January 18, 2011

Padilla found not retroactive

Doan v. United States, Nos. 1:06cr463, 1:06cr525, 2011 WL 116811 (E.D. Va. Jan. 4, 2011):

Because Petitioner seeks to invoke Padilla after the limitations period expired in this case, this Court must resolve whether Padilla can be applied retroactively.  Padilla can only apply retroactively if it is an old rule or a new rule subject to an exception.  Because failing to advise Petitioner as to deportation risk would not have been objectively unreasonable at the time his conviction became final, Padilla announced a “new” rule. The question, then, is whether Padilla may be subject to one of the retroactivity exceptions for new rules outlined in Teague.  Padilla did not announce a watershed rule of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding.  Nor did it alter the range of conduct or the class of persons that the law punishes.  Therefore, the Court will not apply Padilla retroactively.

[UPDATE:  The Third Circuit announced that Padilla applies retroactively on collateral review.  See United States v. Orocio, No. 10-1231 (3d Cir. June 29, 2011).]

[8/30/2011 UPDATE:  The Seventh Circuit announced that Padilla does not apply retroactively.  See Chaidez v. United States, No. 10-3623 (7th Cir. Aug. 23, 2011).]

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