Legal Memorandum: Counsel's Duty to Inform of Deportation Risks

Issue: Under federal law, is the rule set forth in Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473 (2010), a ‘new’ rule such that a post-conviction challenge may be brought despite the passage of the statute of limitations?

The rule set out in Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473 (2010) clearly constitutes the announcement of a new constitutional right or principle, not previously dictated by binding U.S or Florida Supreme Court precedent.  The United States Supreme Court had never directly addressed the question until Padilla in 2010.  See Padilla, 130 S. Ct. at 1488.  As stated by Justice Alioto, “this Court has never held that a criminal defense attorney’s Sixth Amendment duties extend to providing advice about [collateral consequences of a conviction].”  Id.  And although the Florida Supreme Court had discussed the issue in 1987 (State v. Ginebra, 511 So. 2d 960, 961 (Fla. 1987)), it held directly contrary to Padilla, concluding that the Sixth Amendment right to effective assistance of counsel does not require counsel to advise defendant that a guilty plea could subject him to deportation.  Ginebra, 511 So. 2d at 962.

Moreover, like Ginebra, the overwhelming majority of courts that considered the matter prior to Padilla reasoned that there was no constitutional mandate that counsel advise defendant that a guilty plea could result in deportation.  Thus, in rejecting the rule, the Ginebra court noted that “[t]he vast majority of federal courts, . . . have held that failure to advise a client  that deportation may follow from a guilty plea does not constitute ineffective assistance of counsel and thus form the basis for withdrawing the plea.”  511 So. 2d at 961 (citing cases, including, inter alia, United States v. Campbell, 778 F.2d […]