Friday, November 6, 2009

Preview of Padilla v. Kentucky

UC Davis law student Janet Kim prepared this preview of Padilla v. Kentucky, a case recently argued before the U.S. Supreme Court:

Facts and History:  Petition Jose Padilla is a legal permanent resident from Honduras and has lived in the United States for approximately 40 years. In 2001, he was indicted by a Kentucky grand jury on three counts of drug offenses and one tax-related crime. Upon advice from his defense attorney, he entered a guilty plea for the three drug charges so that the tax offense was dropped. His attorney advised him that his guilty plea would have no effect on his immigration status, despite the fact that these convictions are "aggravated felonies" under the Immigration & Nationality Act, which trigger mandatory deportation. Padilla filed for post-conviction relief arguing that he received ineffective assistance of counsel under the Sixth Amendment. The Kentucky Court of Appeals reversed Mr. Padilla's conviction and remanded the case for an evidentiary hearing. On appeal to the Kentucky Supreme Court, the court held mandatory deportation is a collateral consequence, thereby outside the scope of the Sixth Amendment's right to counsel. On February 23, 2009, the United Stated Supreme Court granted certiorari.


1. Whether providing effective assistance of counsel under the Sixth Amendment requires defense attorneys to research and advise noncitizen defendant about the possible immigration consequences that may result from entering a guilty plea.

2. Whether affirmatively misadvising the defendant of immigration consequences warrants a claim to ineffective assistance of counsel and setting aside the guilty plea.

The Sixth Amendment guarantees effective assistance of counsel for criminal defenses. Strickland v. Washington, 466 U.S. 668 (1984), set forth a two-prong test illustrates what constitutes ineffective assistance. First, the defendant must prove his or her counsel’s performance fell below objective standard of reasonableness. This standard of reasonableness is evaluated by “prevailing professional norms.” Next, there must be a reasonable probability that if counsel had performed adequately, the results would have been different.

Oral Argument Review

Representing Petitioner Jose Padilla, Stephen Kinnaird argued that the test for misadvice depends on whether the misrepresentation was material in the defendant’s decision to plead guilty. When the Justices pressured him to draw a line for what types of collateral consequences “count and those that don’t”, Mr. Kinnaird replied that the Stickland two-part test would resolve these situations. The Justices questioned whether courts would also be held to the same standard as defense attorneys to counsel on severe consequences, which Mr. Kinnaird was persistently answered “no.”

Assistant Attorney General Robert Long and Michael Dreeben for the United States asserted that collateral consequences are not protected to under the Sixth Amendment. However, Mr. Long admitted that all affirmative misadvice, collateral or not, constitutes deficient representation under the Stickland test. Justice Alito presented a hypothetical under which a defense attorney affirmatively misadvises a defendant and discourages her from obtaining competent advice from an immigration attorney. Even in this situation, Mr. Long answered that the defendant would have no relief under the Sixth Amendment.

In the rebuttal, Mr. Kinnaird asserted the major points. First, Strickland had been applied to parole eligibility, so does not apply solely to trial consequences. Secondly, Brady is predicated on the assumption that the defendant receives competent advice from his or her attorney. Lastly, the misadvice rule has not overburdened the jurisdictions that have endorsed it.


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