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

Issue: Under U.S. Constitutional law and the law of Florida, is the right to be informed by counsel of the deportation consequences of a guilty plea such a right as should be retroactively applied?

In Padilla v. Commonwealth of Kentucky, 559 U.S. 356 (2010), the Supreme Court strongly implies that the constitutional rule it adopted applies retroactively.  130 S. Ct at 1484-85.  The Court signaled that it understood its holding in Padilla would apply retroactively in its statement that it had “given serious consideration” to the argument that its ruling would open the “floodgates” to new litigation challenging prior guilty pleas.  Id. at 1484-85.  The Court minimized the “floodgates” concern by stating that a petitioner would have to show not only that his counsel’s performance fell below professional standards, but also that he was prejudiced by the deficient performance.  Id. at 1485.  Similarly, the Court further downplayed the concerns over the effects of retroactive application by stating that “it seems unlikely that our decision today will have a significant effect on those convictions already obtained as the result of plea bargains.”  Id. (emphasis added).  If the Court intended Padilla to be applied only prospectively, there would be no effect on “those convictions already obtained” and this comment as well as the entire “floodgates” discussion would have been unnecessary.

Additionally, while there have been no Florida appellate court decisions or federal appellate-level decisions holding Padilla applies retroactively, a number of trial courts around the country have addressed the question and several have concluded that the Padilla rule should, indeed, be applied retroactively, based in part on the “floodgates” language in Padilla.  See, e.g., Luna v. United States, No. 10CV1639 […]