Padilla, Sandoval, and Post-Conviction Relief

Many courts are now considering post-conviction relief for noncitizens with convictions where advice on pleas may have been ineffective. To put more focus on this subject, I recently participated on a Washington State Bar Association panel in Seattle, entitled “Post-Conviction Relief for Noncitizens After Padilla V. Kentucky and State v. Sandoval.” My co-presenters were highly esteemed attorneys Ann Benson and Neil Fox. The Continuing Legal Education seminar should soon be available to attorneys via the State Bar’s on-line CLE program.

We specifically discussed the particulars of Padilla, Sandoval, relevant immigration laws, and various strategies for seeking post-conviction relief based on these cases. One of the big issues now is whether these cases will be applied retroactively for post-conviction relief. The majority of decisions so far are coming out this way. If it is believed that post-conviction relief could be necessary to avoid adverse immigration consequences, know that time may be of the essence to seek help. Many forms of relief are time barred, and immigration removal actions move on their own calendar, without regard to prospective relief in state courts.

Padilla v. Kentucky is a landmark U.S. Supreme Court decision from last year, which held that defense counsel has an affirmative duty to competently address immigration issues presented by a client’s criminal charges. As per the Court’s decision, “Accurate legal advice for noncitizens accused of crimes has never been more important.” The Court explicitly held that deportation is not a “collateral consequence” of the proceeding, as was held by the Kentucky Supreme Court, and has been commonly thought by attorneys.

Following Padilla, the Washington State Supreme Court issued its related and long-awaited decision in State v. Sandoval this past March. In Sandoval, a 25 year permanent resident was charged with 2nd degree rape in Grant County, and on advice of counsel plead guilty to 3rd degree rape, which would lead to certain deportation as an aggravated felon. The decision found similar obligations for defense attorneys.

Specifically, the State Supreme Court focused its decision narrowly on the advice defense counsel gave concerning deportation. The Defendant had informed counsel that they would not take the plea if it meant deportation, and was told erroneously by counsel the plea would not lead to “immediate deportation.” The Court reviewed the U.S. Supreme Court’s Strickland v. WA analysis, finding that (1) the counsel’s performance fell below objective standards of reasonableness as determined by professional standards, and (2) that the defendant was prejudiced by the representation, inasmuch as it was reasonable to believe the defendant would’ve risked trial on the 2nd degree rape charge (which had 78-102 month sentence, v. 6-12 months for 3rd degree).

The Washington Supreme Court also held that if the deportation consequence is “clear”, defense counsel is then required to correctly advise the client on such consequence. If, however, the consequence is “unclear,” counsel must advise client that deportation and other immigration consequences are possible. In practice, immigration consequences may seem unclear to most attorneys, due to the level of specialization required to analyze such matters effectively.