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Matthew Kolken on Deportation And Removal

Courts Differ About Retroactive Effect of High Court Counsel Ruling

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Looks like the United States Supreme Court wasn't clear enough in their decision in Padilla v. Kentucky(pdf).  In Padilla, 130 S. Ct. 1473 (2010), the Court ruled that a criminal defendant must be advised by their lawyer of the immigration consequences of entering a plea of guilty, and that a failure to inform constitutes ineffective assistance of counsel.

Noeleen G. Walder, of the New York Law Journal has reported that Manhattan Criminal Court Judge Abraham Clott  has declined to give retroactive effect to Padilla, "at least with respect to a misdemeanor conviction."

Judge Clott ruled that: "This Court concludes that in Padilla the Supreme Court
announced a new rule of criminal procedure rather than applied settled
law to a new set of facts and that the Padilla rule is not a 'watershed'
change that must be applied retroactively to cases on collateral
review," People v. Kabre, 2002NY029321, 2003NY021859, 2004NY017122.

Conversely, Bronx Criminal Court Judge Lynn R. Kotler ruled that it did.  See People v. Bennett, 2010 WL 2089266.

Apparently, the Supreme Court has more work to do.

Click here to read the entire New York Law Journal article.

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Comments

  1. Rob R. 's Avatar
    The Virginia Attorney General's Office is arguing that Padilla is not retroactive. That argument has trickled down into the Commonwealth Attorney's offices, especially where I practice. Love to see how people are responding to this male bovine excrement argument.
  2. Matthew Kolken's Avatar
    Thanks for the info Rob!
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