Tuesday, June 21, 2011

COA granted regarding retroactivity of Padilla

Mathur v. United States, No. 7:07-CR-92-BO, 2011 WL 2036701 (E.D.N.C. May 24, 2011):

In Padilla v. Kentucky, 130 S.Ct. 1473 (2010), the Supreme Court announced that the Sixth Amendment's guarantee of effective assistance of counsel includes a right to be informed by defense counsel as to the consequences of a guilty plea regarding the defendant's immigration status and the risk of deportation.

The Fourth Circuit has not explicitly addressed whether this rule is retroactive. That is, it is not settled whether an individual who pleaded guilty before the Court handed down its decision may now benefit from it. One panel noted, however, that "nothing in the Padilla decision indicates that it is retroactively applicable to cases on collateral review." United States v. Hernandez–Monreal, 2010 WL 5027195, *2 n.* (4th Cir. 2010).

Nevertheless, the Eastern District of North Carolina notes that language in Padilla does cryptically refer to the possibility that the "floodgates" could open after Padilla. At least one other District Court has found this language persuasive. United States v. Hubenig, 2010 WL 2650625, at *7 (E.D. Cal. July 1, 2010) ("If the Court intended Padilla to be a new rule which would apply only prospectively, the entire 'floodgates' discussion would have been unnecessary.").

Accordingly, the District Court granted a certificate of appealability ("COA") regarding whether Padilla applies retroactively on collateral review.

[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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