On The Two Year Anniversary of Padilla v. Kentucky, Preziosi Says Supreme Court Decision's Significance Still Debated.

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New York City Criminal Appeals Lawyer, Stephen Preziosi, Expects to appeal Numerous Cases Once Issues Stemming from the Supreme Court’s Decision in Padilla v. Kentucky are resolved. As the Two Year Anniversary of the Decision related to immigration consequences of plea deals approaches, New York Courts are Still Undecided how to Proceed, but he Offers Clarity.

While the United States Supreme Court ruled on Padilla v. Kentucky nearly two years ago, courts in New York and around the country have made little progress on implementing the decision. So says Stephen Preziosi, New York Criminal Appeals Lawyer, who now tries to offer a framework for moving forward.

“It has been almost two years since the Supreme Court’s ruling in Padilla v. Kentucky (130 S.Ct. 1473176 L.Ed.2d 284 (2010)), and courts across the State of New York and across the Nation are still struggling and disagreeing on how the holding in the Padilla case should be applied,” said Preziosi. “Some courts say it is a new rule and should not be applied retroactively, with some exceptions; other courts say that it is an old rule being applied to a new set of facts and should be applied retroactively; finally, there are various courts that say it is a rule that should only be applied retroactively on cases of direct appellate review and not on collateral review. I believe the correct interpretation is that the decision applies retroactively.” This is an important concept in both federal criminal appeals and state criminal appeals.

“The retroactive application of the rule in Padilla is significant for many cases working their way through the court systems in New York right now. This means that many noncitizens should have the opportunity to have their cases re-opened by submitting an Article 440 motion to the trial court to request that the conviction be vacated.

In the majority opinion offered by Justice Stevens, the Supreme Court held that if an attorney fails to warn a client about adverse immigration consequences of a plea in a criminal case, this fulfills the first part of the two-part test for ineffective assistance of counsel outlined in Strickland v. Washington (Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). The question becomes whether all defendants agreeing to plea deals under these circumstances should have their cases reconsidered, or if that reconsideration should be extended to only certain of these defendants.

“Two important cases that were decided shortly after Padilla shed light on how I believe the law will be applied,” said Preziosi. “Although neither of them received equivalent acclaim, they may help to clear the air on the subject of retroactivity of the Padilla rule, and on the issue of applicability of that rule on direct versus collateral review.”

In both Santos-Sanchez v. United States, ___U.S.___, 130 S.Ct. 2340, 176 L.Ed.2d 559 (2010) and Chapa v. United States, ___ U.S.___, 130 S.Ct. 3504, 177 L.Ed.2d 1086 (2010), the Supreme Court vacated the decision of the Fifth Circuit Court of Appeals and remanded the cases to be decided in light of Padilla v. Kentucky.    

In the Santos-Sanchez case the defendant had been a legal resident of the United States since 2001. According to court documents, he was arrested in 2003 and charged with aiding and abetting the illegal entry of an alien into the US. He pleaded guilty after consulting with an Assistant Public Defender and was sentenced to one year of probation. As a result of his guilty plea the Department of Homeland Security found Santos-Sanchez removable because of his plea in the criminal case.

He filed a Writ of Errors Coram Nobis (collateral review) before a Magistrate Judge in the Southern District of Texas who granted the writ and vacated the conviction; however, the District Court for the Southern District of Texas eventually vacated the Magistrate’s ruling and denied the petition for a Writ of Errors Coram Nobis; Santos-Sanchez appealed.    

The Fifth Circuit Court of Appeals held that deportation is a collateral consequence of the plea in the criminal case and that the defendant’s attorney was, therefore, not obligated to inform him of the immigration consequences of his guilty plea, and his counsel was therefore not ineffective. Santos-Sanchez v. U.S., 548 F.3d 327 (2008).

The U.S. Supreme Court granted certiorari (just one week after Padilla v. Kentucky was decided) and vacated the judgment of the Fifth Circuit and remanded the case with an order that it be re-decided in light of the holding in Padilla v. Kentucky – the Supreme Court’s direction to the Fifth Circuit Court of Appeals was to retroactively apply the Padilla holding in a case that was on collateral review.

Approximately three months after the Supreme Court decided Padilla v. Kentucky they decided the case of Chapa v. United States, ___ U.S.___, 130 S.Ct. 3504, 177 L.Ed.2d 1086 (2010).

In the Chapa case the defendant argued on direct appeal that her plea counsel had failed to warn her that it was a virtual certainty she would be deported because of her plea. The Fifth Circuit Court of Appeals, citing to its prior decision in Santos-Sanchez, held that counsel was not ineffective in failing to warn his client of the immigration consequences of a plea in a criminal case and affirmed the conviction.

The U.S. Supreme Court granted certiorari and vacated the Fifth Circuit’s judgment and remanded the case for it to be decided in light of the holding of Padilla v. Kentucky, again, directing that the holding in Padilla be applied retroactively to a case that was on direct appellate review.

“In both cases, the U.S. Supreme Court found that the holding in Padilla is applicable retroactively, and furthermore, it is applicable on both direct appellate review and on collateral review of criminal cases,” said Preziosi.

In New York the issue of the retroactive application has not yet reached the appellate courts and has yet to be definitively decided. New York Criminal Appeals Lawyer Stephen Preziosi will be arguing two cases in the Appellate Division with regard to issue of retroactivity of Padilla in the coming months.

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