Retroactive application of Padilla

Retroactive application of Padilla

Previous blogs have discussed the March 2010 Supreme Court case, Padilla v. Kentucky, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), which held that a defense lawyer's representation of an immigrant was below par when the lawyer failed to advise the defendant that his plea agreement would result in automatic deportation.  Id.  Since the Padilla decision, many defense attorneys and multiple courts have questioned whether Padilla applies retroactively.  That is, does the decision apply to cases decided before Padilla.

In June, the Third Circuit answered the question for its district courts concerning retroactive application, holding that yes, Padilla does apply retroactively: "[W]e hold that Padilla is retroactively applicable on collateral review."  United States v. Orocio, 10-1231. 2011 WL 2557232, *1 (3d Cir. June 29, 2011).

While the Tenth Circuit (Kansas's federal circuit) has discussed the Padilla decision, there has been no discussion as to the retroactive application concerning Tenth Circuit defendants.

See Lindsey and Dionne at www.ericksonscherff.com<http://www.ericksonscherff.com/> for information on how these decisions could affect your charge, conviction and/or appeal.