Circuit Courts and State Courts are Split Regarding Padilla v. Kentucky

Attorney Andrew Desposito of our office wrote this brief commentary on the split in courts across the country with their application of Padilla v. Kentucky

The U.S. Supreme Court case Padilla v. Kentucky (2010) was an important ruling for many aliens facing deportation. In that case, the U.S. Supreme Court held that an attorney provides ineffective assistance of counsel by failing to inform a client that a guilty plea carries a risk of deportation. The problem with the ruling is that the U.S. Supreme Court failed to clarify whether this decision could apply retroactively with regards to direct and collateral appeals. The main concern is whether the decision announced a new constitutional rule and should not be applied retroactively, unless an exception applies, or whether it is not a new constitutional rule and could therefore be applied retroactively. This distinction has been critical for many Circuits in its decisions on whether to apply Padilla to other cases in their jurisdictions.

Recently, the Seventh Circuit held that Padilla does not apply retroactively. The Court concluded that because Padilla announced a new constitutional rule, that unless there is an exception to retroactively applying the case, Padilla will not apply to cases already resolved on appeal. The Tenth Circuit has also held that Padilla does not apply retroactively for the same reason. In addition, the Third District Court of Appeal of the State of Florida has sided with the Seventh and Tenth Circuits on the issue, leaving it open for the Eleventh Circuit to make a decision on the case if it goes up on appeal to that court.

While these Circuit Courts have decided against applying Padilla retroactively, other district courts have applied the case retroactively. The State Court of Minnesota Court of Appeals concluded that Padilla applies retroactively under an old rule of constitutional law. The Minnesota Court concluded that Padilla falls under the Constitutional rule under Strickland v. Washington. The court decided that Padilla was an extension of Strickland regarding the rules of ineffective assistance of counsel. The Strickland rule states that: (1) that the counsel’s representation fell below an objective standard of reasonableness and (2) that there is a reasonable probability that, but for the counsel’s errors, the outcome of the proceedings would have been different. The Minnesota court determined from the majority decision in Padilla that the Strickland rule was being extended by this recent decision. The State Court of Texas First Court of Appeals also ruled that Padilla applies retroactively on the same grounds.

Although the Fifth and Eighth Circuit Court of Appeals have not weighed in on the matter, with cases being decided in their jurisdictions (Texas and Minnesota), it is only a matter of time until those Circuits decide whether to follow their Sister Circuits in not applying the rule retroactively, or deciding that Strickland must be applied. It will be interesting to see how the other courts decide on the matter, and whether the U.S. Supreme Court will then have to step in and make a final ruling on the application of Padilla as a constitutional rule of law.