Court-Martial Trial Practice Blog
The Supreme Court has issued an opinion in Padilla v. Kentucky, which addresses the duty to inform a client of the collateral consequences of the conviction on their immigrant status. I have posted on this in connection with United States v. Miller, 63 M.J. 452 (C.A.A.F. 2006) and other cases: here, here, here, and here. Here’s a link to Padilla on SCOTUSWiki. There are important consequences for military practitioners because as I have pointed out, there are thousands of green-card holders serving in the military. Here are a some highlights – more later.
Because counsel must inform a client whether his plea carries a risk of deportation, Padilla has sufficiently alleged that his counsel was constitutionally deficient. Whether he is entitled to relief depends on whether he has been prejudiced, a matter not addressed here.
So, to what extent does Padilla impact Denedo? Here is the SCOTUSWiki link to the Supreme Court litigation in Denedo. Here is a link to Denedo v. United States, 66 M.J. 114 (C.A.A.F. 2008). Here is a link to United States v. Denedo, in which N-MCCA denied Denedo relief again.
Justice Stevens writes for the court, with Justice Alito writing in concurrence with the judgment for himself and Chief Justice Roberts. Justice Scalia writes in dissent for himself and Justice Thomas.
In this post conviction proceeding, Padilla claims that his counsel not only failed to advise him of this consequence prior to his entering the plea, but also told him that he“‘did not have to worry about immigration status since he had been in the country so long.’” 253 S. W. 3d 482, 483 (Ky. 2008). Padilla relied on his counsel’s erroneous ad-vice when he pleaded guilty to the drug charges that made his deportation virtually mandatory. He alleges that he would have insisted on going to trial if he had not received incorrect advice from his attorney.
We granted certiorari, 555 U. S. ___ (2009), to decide whether, as a matter of federal law, Padilla’s counsel had an obligation to advise him that the offense to which he was pleading guilty would result in his removal from this country. We agree with Padilla that constitutionally competent counsel would have advised him that his conviction for drug distribution made him subject to automatic deportation. Whether he is entitled to relief depends on whether he has been prejudiced, a matter that we do not address. . .
[C]hanges to our immigration law have dramatically raised the stakes of a noncitizen’s criminal conviction. The importance of accurate legal advice for noncitizens accused of crimes has never been more important.These changes confirm our view that, as a matter of federal law, deportation is an integral part—indeed, some-times the most important part7—of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes. . .
The weight of prevailing professional norms supports the view that counsel must advise her client regarding the risk of deportation.
Slip op. at 9.
So, what else shall we see in the opinion? That if the advice is given it must be right? More later.