I previously posted here about the U.S. Supreme Court’s recent decision in Chaidez and its holding that Padilla does not apply retroactively. The Court’s ruling meant that lawful permanent resident Roselva Chaidez failed in her attempt to overturn her pre-Padilla federal convictions on the basis that her lawyer neglected to tell her that they would result in mandatory removal from the country. One might be tempted think that the case is likely to help clear post-conviction dockets nationwide. After all, many cases like Chaidez’s are still in the system and the Court’s holding makes simple work of the retroactivity issue: Motion denied! However, there is something in Chaidez that makes me wonder whether it will lead to a new flood of post-conviction motions. Let me explain. It has generally been understood that the Sixth Amendment right to counsel applies to direct consequences of a plea but not to collateral consequences. Thus, a lawyer who fails to inform his or her client of a direct consequence of a plea--such as a mandatory minimum sentence--may be found to have rendered ineffective assistance of counsel under the Strickland attorney-error analysis. In contrast, no such claim would lie when the lawyer fails to inform a criminal defendant of a collateral consequence of a plea--such as loss of a professional license. Before Padilla, courts for the most part had been viewing immigration consequences as collateral and thus concluding that if a defense lawyer failed to advise his or her client about such matters, this failure could [...]
Faculty Coordinators
