Sunday, December 2, 2012

State Courts Limiting the Effect of Padilla v. Kentucky

A little over two years ago, the U.S. Supreme Court handed down its decision in the case of Padilla v. Kentucky, where it held that the failure of criminal defense counsel to advice a non-citizen defendant on the immigration consequences of of accepting a plea bargain amounts to a violation of the Sixth Amendment.  To many at the time, Padilla appeared to be a landmark decision, offering help to permanent residents and other non-citizen convicts seeking to re-open convictions which resulted in surprise immigration consequences.  A number of state courts, however, have attempted to close the door on the ability of non-citizen defendants to use Padilla to re-open old state convictions.  States such as Virginia now prohibit the use of certain extraordinary writs to seek post-conviction relief.  States such as Florida hold that Padilla is not retroactive, and thus cannot be used to attack convictions occurring before the date of the Supreme Court's decision in Padilla.

In this article, I discuss the efforts of state courts to curtail the reach of Padilla.

The Virginia opinion of Morris v. Commonwealth can be found here.

The Florida opinion of Hernandez v. State can be found here.

The U.S. Supreme Court has taken up the issue of whether Padilla should be applied retroactively, as discussed in this article.

By: William J. Kovatch, Jr.
(703) 837-8832

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