Supreme Court Rules That Padilla Does Not Apply Retroactively

Filed under: Criminal Law, News by Contributor @ February 25, 2013

The United States Supreme Court ruled on February 20, 2013, that its decision in Padilla v. Kentucky (2010) will not apply retroactively. The Court ruled in Padilla that a lawyer must inform the client of potential deportation consequences stemming from a plea of guilty. If the defendant was not informed of the immigration consequences of the plea he may be entitled to relief on the basis that he suffered a violation of his Sixth Amendment right to effective assistance of counsel.

In Chaidez v. United States (2013), the Court ruled that the decision in Padilla does not apply retroactively, and only applies to convictions that occur after the Padilla decision (decided March 31, 2010).

In order for a court decision to apply retroactively, it must be based on precedent and apply a preexisting rule, rather than create a new rule entirely. Chaidez’s attorney argued that the decision in Padilla relied on several previous cases and decisions, including Strickland v. Washington (1984), which established a rule for determining what gives rise to a claim of ineffective counsel, and Roe v. Flores-Ortega (2000), which held that defense counsel’s failure to advise his client of his right to appeal constitutes ineffective assistance of counsel, but does not create a new rule. Attorneys for the United States argued that Padilla created a “new ground” to challenge a guilty plea, and did not explicitly rely on precedent. They also argue that, if anything, Padilla departed from precedent rather than adhered to it. The Court agreed with the United States, and held that Padilla created a new rule and thus does not apply retroactively.

Recently, we obtained relief for a defendant who was facing deportation as a result of his guilty plea.  Applying Padilla, we successfully argued that our client’s prior lawyer had erred in advising him to plead guilty to a lesser charge, which still carried with it a very likely risk of deportation. If you or anyone you know is facing deportation due to ineffective counsel, especially during plea bargaining, contact an experienced attorney at Fairlie & Lippy today. Even in the afermath of Chaidez, there remains an argument that Pennsylvania law provides more safeguards than Chaidez and that Padilla can therefore be applied retroactively in Pennsylvania, even though it cannot be applied retroactively under federal law.


  1. tameka says:

    Can that argument be used in fl to 8138636038

  2. Unfortunately we can only give advice for Pennsylvania, so I would ask a lawyer there. My guess is that it won’t apply there. Steve

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