Failure to Warn of Deportation Consequences of a Guilty Plea

In Padilla v. Kentucky, 559 U.S. 356 (2010), the Kentucky Supreme Court had rejected the petitioner's claim that he had received ineffective assistance of counsel because his defense attorney failed to warn him of the deportation consequences of his guilty plea. The state court reasoned that deportation was not a direct consequence of a plea, but only a collateral consequence. Therefore, the matter was outside the scope of representation required by the Sixth Amendment. The United States Supreme Court reviewed Padilla's claim under its Strickland ineffective assistance of counsel standard, and rejected any direct or collateral consequence analysis. The Supreme Court stated that it had "never applied a distinction between direct and collateral consequences to define the scope of constitutionally reasonable professional assistance' required under Strickland . . .and that distinction . . . need not be considered in this case because of the unique nature of deportation" (Padilla, 559 U.S. at 365). The Supreme Court, however, found that counsel's "advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel" and, therefore, defense counsel was required to provide accurate and specific advice regarding immigration consequences following a guilty plea (id. at 366). In applying the first prong of the Strickland test to Padilla's claim, the Supreme Court found that his plea counsel's failure to advise Padilla of the deportation consequences of his plea was unreasonable, and amounted to a constitutionally deficient performance (Padilla, at 368). The Court, however, did not address whether its holding applied retroactively so as to permit defendants whose convictions were already final at the time it issued its opinion to seek relief on this basis in a collateral proceeding.