Padilla Practice Advisory

May 2010

This Padilla practice advisory is intended to review steps that should be undertaken in order to ascertain whether or not a Post-Conviction Relief (hereafter PCR) filing is appropriate. Padilla v. Kentucky, 559 U.S. ___ (March 31, 2010) held that an immigrant defendant's right to effective assistance under the Sixth and Fourteenth Amendment of the U.S. Constitution is violated when criminal defense counsel (hereafter counsel) fails to accurately advise the immigrant of readily ascertainable immigration consequences of the immigrant's plea to a criminal charge.

The assessment questions on a PCR intake surely include:

Would the case have been handled the same way by counsel following Padilla as it was handled, pre Padilla?

Could the current predicament of the immigrant (e.g. presumably deportation proceedings following a criminal conviction) potentially have been avoided by competent counsel following the requirements of Padilla?

What would competent counsel do that criminal defense counsel did not do? (E.g. bearing in mind under Oregon law Gonzalez v. State of Oregon, 340 Or. 452, 134 P.3d 955 (2006) counsel had to advise his client that he may be deported. Under Padilla, at least where the immigration statutes are straightforward, counsel must give accurate immigration consequence advise to the client. Under Padilla, counsel has an affirmative duty to give immigration advise of immigration consequences of a conviction, and does not fulfill this duty by advising the immigrant merely that he may be deported.

The door is wide open to PCR in those instances where counsel followed the Oregon minimum guideline for constitutional practice under the Oregon constitution. Padilla makes errors of omission actionable, and requires criminal defense counsel to know basic immigration statutes such as INA 101(a)(43) (Aggravated Felony Definitions), INA 212 (Inadmissibility Grounds), INA 237 (Criminal Grounds of Deportability), INA 240 (Cancellation of Removal for Permanent, Non-Permanent Residents, VAWA and special rule cancellation).

Padilla requires an attorney to protect the client from deportation. Gonzalez allowed the attorney to warn the client he could be deported and then left it to the immigrant to fend for him or herself. The distinction between the two cases is great.

When answering these questions, ask yourself how counsel could have handled the case differently in order to avoid a deportation consequence of the conviction, e.g. whether it's a deportation proceeding that the client is subjected to, or whether the client is facing mandatory deportation following a conviction for an aggravated felony. For instance:

Was there a motion to suppress or motion to dismiss available that was not filed on solely criminal law grounds?

Was there a failure to investigate?

Would you have told the immigrant he/she was agreeing to his or her own banishment by signing a plea to Delivery of a Controlled Substance because there was no relief from deportation available after signing that document post-Padilla. Of course you would; was this done pre-Padilla?

Use the Padilla practice guides now available to assess what a reasonable counsel should have done when representing the immigrant. If these guides point out scenarios where counsel had a duty to act/advise but failed to do so, you have established a claim of ineffectiveness.


Bear in mind that Padilla remanded to the Kentucky court, and did not decide the prejudice issue. The legal test for "prejudice" is, if it is "reasonably probable" (Strickland v. Washington, 466 U.S. 668 (1984)) that the immigrant would have insisted on a jury trial, and would not have entered into the guilty plea had he been advised of what immigration consequences were being decided as a result of the criminal prosecution, then "prejudice" is established. Declarations from immigration counsels and the client could help establish the point.

On this prejudice prong, could the case have gone to jury trial and/or is there a reasonable probability showing that the client would have insisted on a jury trial (or a motion to suppress or dismiss)? See Moore v. Czerniak, 574 F.3d 1092 (9th Cir. 2009). Habeas granted where Counsel did not proceed with a motion to suppress due to an involuntary confession and counsel's ineffectiveness was prejudicial. This case discusses the importance of a motion to suppress in ascertaining whether or not there is an effective assistance of counsel; see concurring opinion of Judge Berzon).

Could you have potentially negotiated a non-deportable offense?

Practice Pointers

Make sure that the immigrant knows before proceedings on a PCR matter that, for instance, if this is a Measure 11 crime, the original criminal charge would be re-filed against him following a grant of PCR. If the immigrant is claiming to the PCR court that he would have insisted on a jury trial and the court believes him, he/she will be facing Measure 11 charges. The immigrant must know that a PCR grant only means the immigrant faces criminal proceedings anew.

Take No Prisoners

Padilla opens the door to justice for immigrants who have been deprived of the right to effective assistance. Consider deposing counsel if needed, for instance, in adversarial and antagonistic situations. Also, remember you can depose police officers and witnesses, and this record of deposition might be very useful after having a PCR case granted. PCR is a great vehicle for discovery. If you do need to re-try the case; you can learn a great deal about the case in advance of the new calendaring of the criminal charges. Also, if the depositions show weakness in the State's case this may assist in negotiating the charges to a non-deportable charge or dismissal.

Also see recent OCDLA's materials generally on PCR practice ("A Commitment to Excellence: New Post-Conviction Standards and Strategies" – March 12, 2010 in Eugene, OR), as well as other Padilla alerts to follow, concerning whether or not you can file a PCR claim outside the 2-year statute of limitations generally applicable to PCR cases.

The question whether Padilla should apply retroactively is beyond the scope of this advisory. However, my sense of it is that otherwise "late" or successive PCR claims should be allowed by the Oregon courts up to two years after the Padilla decision. Pre-Padilla, the Oregon appellate courts construing Gonzalez v. State of Oregon, 340 Or. 452, 134 P.3d 955 (2006), denied several PCR appeals that counsel had been ineffective for failure to accurately advise of immigration consequences of a conviction. The Court of Appeals mistakenly held that "you may be deported" is constitutionally sufficient advice; even though the immigrant was required to be deported due to the criminal conviction. See Senda v. Thompson, 211 Or. App. 390; 155 P.3d 53 (2007) (crime of violence, aggravated felony); Ramirez v. State of Oregon, 212 Or. App 446, 157 P.3d 1290 (2006), 214 Or. App. 400, 164 P.3d 1221 (2007) (crime of violence, aggravated felony); Guzman v. State of Oregon, 227 Or. App. 361, 206 P.3d 210 (2009), 347 Or. 42, 217 P.3d 688 (2009), cert pending before U.S. Supreme Court.