In a post here, a former colleague [editor’s note: the post has my picture on it but as the byline notes, it was written by Sejal Zota] wrote about Padilla v. Kentucky, 130 S. Ct. 1473 (Mar. 31, 2010), a U.S. Supreme Court decision dealing with ineffective assistance of counsel in connection with advice regarding the immigration consequences of a plea. In Padilla, after pleading guilty to a charge of transporting a large amount of marijuana, the defendant, a lawful permanent resident of the United States for more than forty years, faced deportation. He challenged his plea, arguing that his counsel rendered ineffective assistance by failing to inform him that the plea would result in mandatory deportation and by incorrectly informing him that he did not have to worry about his immigration status because he had been in the country for a long time. The Court concluded that when, as in the present case, “the deportation consequence [of a plea] is truly clear,” counsel must correctly inform the defendant of this consequence. However, the Court continued, where deportation consequences of a plea are “unclear or uncertain [t]he duty of the private practitioner . . . is more limited.” It continued: “When the law is not succinct and straightforward . . . , a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.” The Court declined to rule whether the defendant was prejudiced by his lawyer’s deficient conduct.
I followed up on that post with one here dealing with the question of whether Padilla was retroactive to convictions that became final before it was decided. In that post, I noted that at the time there were no N.C. decisions on point and that courts in other jurisdictions were split on the issue. We now have N.C. law on point. In State v. Alshaif, the N.C. Court of Appeals recently held that Padilla does not apply retroactively. In Alshaif, the defendant, a lawful permanent resident of the United States, pleaded guilty to assault with a deadly weapon inflicting serious injury (AWDWISI) and was sentenced accordingly. This occurred in February of 2007, more than three years before Padilla was decided by the U.S. Supreme Court. In October of 2010, the defendant filed a motion for appropriate relief (MAR) arguing that his guilty plea was not knowing, voluntary, and intelligent because he received ineffective assistance by trial counsel, Mr. Branch. Apparently, the defendant met with Branch several times and informed Branch of his lawful permanent resident status. According to the defendant, Branch never advised the defendant of the immigration consequences of a conviction for AWDWISI. Instead, Branch advised the defendant to plead guilty to the offense. After the defendant completed his sentence, he was arrested by U.S. Department of Homeland Security agents and was served with a notice to appear at removal proceedings. As it turned out, the conviction for AWDWISI made the defendant deportable and ineligible to re-seek permanent residency. In his MAR, the defendant asserted that Branch was ineffective under Padilla. The trial court denied the MAR and the court of appeals granted certiorari.
When determining whether a federal rule applies retroactively, the relevant analysis is the Teague test. Applying that test, the court of appeals first determined that although Padilla was grounded in existing law, it announced a new rule. It reasoned: “Prior to Padilla, neither our state courts nor federal courts had interpreted [the law] as requiring counsel to advise a client of the immigration consequences of a guilty plea.” The court then went on to quickly determine that the rule was procedural and not substantive. Finally, it concluded that the new rule did not fall into the narrow non-retroactivity exception for watershed rules of criminal procedure. This latter conclusion is hardly surprising given that the U.S. Supreme Court has never found that exception to apply.
So what does this mean? It means that for cases that had not been initiated or were not final when Padilla was decided by the U.S. Supreme Court the holding of Padilla applies. But for cases that became final before the Padilla decision was issued—like Alshaif’s—the new rule does not apply.