Many criminal defense and immigration attorneys are aware of the far-reaching implications of the U.S. Supreme Court's decision in Padilla v. Kentucky. The ABA Journal has recently posted on its website that the Supreme Court is considering whether the 2010 Padilla decision will apply retroactively to convicted criminal defendants who faced deportation before the Padilla decision was made.
In the Padilla case, the defendant pled guilty to transporting a large amount of marijuana. Mr. Padilla was not a citizen of the United States, and he asked his attorney whether he would face deportation if he agreed to the guilty plea. Relying on the fact that Padilla had lived in the United States for such a long time (and had served in the Vietnam War), his defense attorney erroneously told him that deportation would not be an issue. In reality though, pleading guilty made his deportation mandatory under the law. Padilla appealed to the Kentucky Supreme Court, insisting that had he had known that he could be deported for pleading guilty he would have gone to trial. Because the Kentucky Supreme Court denied Padilla post-conviction relief, Padilla's case eventually went to the United States Supreme Court.
The United States Supreme Court ultimately found that Padilla's defense attorney should have at least advised Padilla as to the risk of deportation, and by failing to do so had violated Padilla's Sixth Amendment right to effective counsel. Regarding whether this error was enough to reverse Padilla's conviction, the United States Supreme Court left that up to the state of Kentucky to determine.
Now, the Supreme Court must decide whether the holding in Padilla should apply retroactively. The Court has recently granted review to Chaidez v. United States, which involves a Mexican immigrant who pled guilty in 2003 to fraud involving more than $10,000, and is accordingly subject to deportation. Contrary to what the Supreme Court may have assumed when issuing the Padilla ruling, "federal and state courts are openly and intractably divided over whether the Padilla holding applies retroactively."
More information on this upcoming decision in the Chaidez v. United States matter can be found at the SCOTUSblog.