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Matthew Kolken on Deportation And Removal

Supreme Court to Revisit Ruling in Padilla v. Kentucky to Determine if it Applies Retroactively

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The United States Supreme Court has granted cert in a case for the purpose of clarifying whether the Court's previous decision in Padilla v. Kentucky applies retroactively to persons whose convictions became final before its announcement.  Click here to read the Petition for Writ of Certiorari. 


The Court in Padilla ruled that criminal defendants receive ineffective assistance of counsel under the Sixth Amendment when their attorneys fail to advise them that pleading guilty to an offense will subject them to deportation.  Subsequent to the Supreme Court's decision, there has been a split in the lower courts regarding the effect of Padilla, and whether it applies retroactively.


The current case, Chaidez v. United States, arises out of the 7th Circuit Court of Appeals, which focused on the singular issue of whether Padilla created a new constitutional rule of criminal procedure.  A rule is "new" when it was not dictated by precedent existing at the time the defendant's conviction became final. 


The 7th reasoned that if Padilla created a new rule it would only apply to cases on direct review, unless one of two exceptions applies: (1) it is substantive or (2) it is a watershed rule of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding.


The 7th found that Padilla created a new rule, that an exception to non-retroactivity did not apply, reversing the District Court's decision.  The Supreme Court granted cert yesterday.


I'll be following the case closely and will keep you updated.

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  1. Genevieve's Avatar
    How long can it take for them to decide?
  2. Mar's Avatar
    that, we must also recognize that HE loves the seninr. Our finite minds are able to barely comprehend the the full extent and significance of the work He accomplished through Christ, some 2000 years ago. While it might be hard NOT to engage the natural mind about the offense of homosexuality, Christians are reminded that we are commissioned to do only ONE THING: To LOVE the seninr with the love of God in Christ. Christians are to love WITHOUT RESERVATION that we are to NEVER pronounce personal judgements But, here is where we, the church, sometimes sort of stumble in the process of loving Question: Do we or can we as the Church, talk about the love of God WITHOUT equally talking about the wrath of God? Is Godly love not wrath ? Or, is Godly wrath an integral part of Godly loving ?I personally believe that confronting the homosexual INVOLVES giving him or her the WHOLE UNADULTERATED truth of (the word of) God. To do otherwise would not be confronting the seninr in love . God loves perfectly. But He also hates perfectly. They are both consistent with the overall character of God. In other words, it is LOVING to tell him or her about what God thinks of their sin AND lifestyle.At the end of the day, this whole business is NEVER about the seninr homosexual or not but rather, about who God is. In Ezekiel, we are reminded as God spoke to the Israelites through the prophet, that it was not for their sakes that the Lord was renewing them, but for the good of His name's sake.In confronting the seninr homosexual or not it remains our solemn duty as the Church to share God's WHOLE truth, and allow God's Holy Spirit to work on their hearts. But just as Jesus, on His way to Jerusalem, bypassed His very own hometown because of their unbelief and unrelenting disobedience, we must dust ourselves off, and continue to move and carry on with the harvest. We must never forget that disseminating half-truths is just as abhorrent to God./cge
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