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Was the Supreme Court's Ruling in Padilla Retroactive or only Prospective? SCOTUS Agrees to Let Us Know.

By May 1, 2012

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Was the Supreme Court's ruling in Padilla v. Kentucky meant to be retroactive or only prospective? This is an important question at the heart of Chaidez v. United States, and the Supreme Court has granted cert in order to answer it.

There is a split among the appellate circuits as to whether Padilla created new law (making the decision prospective) or relied on existing precedent to clarify existing law (making it retroactive). In Chaidez, the Seventh Circuit relied heavily on the lack of unanimity in the Padilla ruling to find that it announced a new rule of law. What the Seventh Circuit failed to discuss was that Padilla involved a situation where an attorney not only failed to give advice about the immigration consequences of a guilty plea, but actually gave incorrect advice about the consequences. Giving bad legal advice has never been considered effective assistance of counsel, and it seems likely that SCOTUS will therefore apply the rule retroactively. However, concern about opening the litigation floodgates could certainly give them pause over applying the rule too broadly.

The Court has agreed to hear the case during the 2012 court term, but a date has not yet been set for oral arguments.

What is your opinion? Is Padilla retroactive or only prospective? Share your thoughts in the Comments section below.


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