POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " DENIAL OF COUNSEL
Woods v. Donald, ___U.S. ___, ___ S.Ct. ___, 2015 WL 1400852 (Mar. 30, 2015) (state court's determination that trial counsel was not per se ineffective in being absent from the courtroom for ten minutes during testimony concerning other defendants, was not contrary to the Supreme Court's Cronic decision); citing United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984).

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " AFFIRMATIVE MISADVICE CONCERNING IMMIGRATION CONSEQUENCES " STATE OF THE LAW PRIOR TO PADILLA
In Chaidez v. United States, 133 S.Ct. 1103 (Feb. 20, 2013), the court stated: True enough, three federal circuits (and a handful of state courts) held before Padilla that misstatements about deportation could support an ineffective assistance claim. But those decisions reasoned only that a lawyer may not affirmatively misrepresent his expertise or otherwise actively mislead his client on any important matter, however related to a criminal prosecution. See, e.g., United States v. Kwan, 407 F.3d 1005, 1015"1017 (C.A.9 2005). They co-existed happily with precedent, from the same jurisdictions (and almost all others), holding that deportation is not so unique as to warrant an exception to the general rule that a defendant need not be advised of the [collateral] consequences of a guilty plea. United States v. Campbell, 778 F.2d 764, 769 (C.A.11 1985).FN14 So at most, Chaidez has shown that a minority of courts recognized a separate rule for material misrepresentations, regardless whether they concerned deportation or another collateral matter. That limited rule does not apply to Chaidez's case. And because it lived in harmony with the exclusion of claims like hers from the Sixth Amendment, it does not establish what she needs to"that all reasonable judges, prior to Padilla, thought they were living in a Padilla-like world. . . . Nor, finally, does St. Cyr have any relevance here. That decision stated what is common sense (and what we again recognized in Padilla ): A reasonably competent lawyer will tell a non-citizen client about a guilty plea's deportation consequences because [p]reserving the client's right to remain in the United States may be more important to the client than any potential jail sentence. Padilla, 559 U.S., at """", 130 S.Ct., at 1483 (quoting St. Cyr, 533 U.S., at 322, 121 S.Ct. 2271). But in saying that much, St. Cyr did not determine that the Sixth Amendment requires a lawyer to provide such information. (Chaidez, supra, at ___.)

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " APPLICABILITY OF CHAIDEZ TO REVIEW OF FEDERAL CONVICTIONS
In Chaidez v. United States, 133 S.Ct. 1103 (Feb. 20, 2013), the court stated: FN16. Chaidez makes two back-up arguments in her merits briefs"that Teague's bar on retroactivity does not apply when a petitioner challenges a federal conviction, or at least does not do so when she makes a claim of ineffective assistance. Brief for Petitioner 27"39. But Chaidez did not include those issues in her petition for certiorari. Nor, still more critically, did she adequately raise them in the lower courts. Only her petition for rehearing en banc in the Seventh Circuit at all questioned Teague 's applicability, and her argument there"that a Teague-light standard should apply to challenges to federal convictions"differs from the ones she has made in this Court. See Petition for Rehearing and for Rehearing En Banc in No. 10"3623(CA7), p. 13. Moreover, we cannot find any case in which a federal court has considered Chaidez's contention that Teague should not apply to ineffective assistance claims. [M]indful that we are a court of review, not of first view, we decline to rule on Chaidez's new arguments. Cutter v. Wilkinson, 544 U.S. 709, 718, n. 7, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005).

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " APPLICABILITY OF CHAIDEZ TO REVIEW OF STATE CONVICTIONS
In Chaidez v. United States, 133 S.Ct. 1103 (Feb. 20, 2013), the court held Padilla did not apply to a post-conviction challenge to a federal conviction on grounds that counsel failed to advise the defendant concerning the immigration consequences of a plea in a case already final when Padilla was decided on March 31, 2010. Chaidez does not technically apply to review of state convictions in state court. It held merely that Padilla does not apply to cases already final on March 31, 2010, when it was decided. Favorable state authority, on independent state grounds, decided prior to Padilla holding defense counsels failure to advise, or affirmative misadvice, concerning adverse immigration consequences of a plea such as that in California, remains intact. This is particularly important in California, where state authority condemned failure to advise as ineffective assistance of counsel has existed since 1987. This prior authority does not depend on Padilla, and so remains useful even though Padilla itself does not apply to cases already final when it was decided.

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " AFFIRMATIVE MISADVICE OF IMMIGRATION CONSEQUENCES " CHAIDEZ DOES NOT APPLY TO REVIEW OF FEDERAL OR STATE CLAIMS OF AFFIRMATIVE MISADVICE
In Chaidez v. United States, 133 S.Ct. 1103 (Feb. 20, 2013), the court held Padilla did not apply to a post-conviction challenge to a federal conviction in a case already final when Padilla was decided on March 31, 2010 on grounds that counsel failed to advise the defendant concerning the immigration consequences of a plea. Chaidez involved a claim of failure to advise, rather than affirmative misadvice. Its holding therefore does not pertain in cases involving affirmative misadvice. Chaidez made this clear: [T]hree federal circuits (and a handful of state courts) held before Padilla that misstatements about deportation could support an ineffective assistance claim. But those decisions reasoned only that a lawyer may not affirmatively misrepresent his expertise or otherwise actively mislead his client on any important matter, however related to a criminal prosecution. See, e.g., United States v. Kwan, 407 F.3d 1005, 1015"1017 (C.A.9 2005). They co-existed happily with precedent, from the same jurisdictions (and almost all others), holding that deportation is not so unique as to warrant an exception to the general rule that a defendant need not be advised of the [collateral] consequences of a guilty plea. United States v. Campbell, 778 F.2d 764, 769 (C.A.11 1985). So at most, Chaidez has shown that a minority of courts recognized a separate rule for material misrepresentations, regardless whether they concerned deportation or another collateral matter. That limited rule does not apply to Chaidez's case. And because it lived in harmony with the exclusion of claims like hers from the Sixth Amendment, it does not establish what she needs to"that all reasonable judges, prior to Padilla, thought they were living in a Padilla-like world. (Id. at ___.) One of those state courts, though not mentioned in Chaidez, was the California Supreme Court. In 2001, ten years before Padilla was decided, that court held that the collateral consequences doctrine did not categorically bar a claim that affirmative misadvice concerning the adverse immigration consequences of a plea constituted reversible ineffective assistance of counsel if prejudice was shown. In re Resendiz, 25 Cal.4th 230, 248, 105 Cal.Rptr. 2d 431 (2001)(For the foregoing reasons, we conclude that neither the existence of section 1016.5 nor the collateral nature of immigration consequences constitutes a per se bar to an ineffective assistance of counsel claim based on counsel's misadvice about the adverse immigration consequences of a guilty plea. Therefore, we may not in this case avoid the circumstance-specific reasonableness inquiry required by Strickland. ( Roe v. Flores"Ortega, supra, 528 U.S. at p. 478 [120 S.Ct. at p. 1035]; see also Hill, supra, 474 U.S. at pp. 57"58, 106 S.Ct. 366; U.S. v. Mora"Gomez, supra, 875 F.Supp. at p. 1213.) Accordingly, we shall proceed to apply Strickland 's familiar reasonableness standard to the circumstances of the instant case. ( Strickland, supra, 466 U.S. at p. 688, 104 S.Ct. 2052.)). In reaching that conclusion, the court reviewed the nationwide state of the law " state and federal -- concerning affirmative misadvice claims of ineffective assistance of counsel: Even among the federal and other courts cited by the Attorney General, the clear consensus is that an affirmative misstatement regarding deportation may constitute ineffective assistance. (U.S. v. Mora-Gomez, supra, 875 F.Supp. at p. 1212.) FN14 FN14. See also People v. Huynh (1991) 229 Cal.App.3d 1067, 1083, 281 Cal.Rptr. 785; Ostrander v. Green (4th Cir.1995) 46 F.3d 347, 355, overruled on another point in O'Dell v. Netherland (4th Cir.1996) 95 F.3d 1214; U.S. v. Del Rosario, supra, 902 F.2d at page 59 and footnote 2; U.S. v. George (7th Cir.1989) 869 F.2d 333, 337; United States v. Campbell (11th Cir.1985) 778 F.2d 764, 768"769; Downs"Morgan v. United States (11th Cir.1985) 765 F.2d 1534, 1541; United States v. Santelises (2d Cir.1975) 509 F.2d 703, 703"704; United States v. Briscoe (D.C.Cir.1970) 432 F.2d 1351, 1353"1354; U.S. v. Corona-Maldonado (D.Kan.1999) 46 F.Supp.2d 1171, 1173; United States v. Nagaro-Garbin (E.D.Mich.1987) 653 F.Supp. 586, 590; People v. Pozo, supra, 746 P.2d at page 527, footnote 5; People v. Ford (1995) 86 N.Y.2d 397, 633 N.Y.S.2d 270, 657 N.E.2d 265, 268"269; People v. Correa (1985) 108 Ill.2d 541, 92 Ill.Dec. 496, 485 N.E.2d 307, 310"311. There are a very few cases suggesting an affirmative misrepresentation is constitutionally irremediable (see, e.g., United States v. Sambro (D.C.Cir.1971) 454 F.2d 918, 921 922; United States v. Parrino (2d Cir.1954) 212 F.2d 919, 921"922), but, as one court has remarked, we properly may regard those cases as aberrations (Strader v. Garrison (4th Cir.1979) 611 F.2d 61, 64). (Id. at 251, 105 Cal.Rptr. 2d 446.) See also, e.g., United States v. Couto, 311 F.3d 179, 187-88 (2d Cir. 2002); Commonwealth v. Tahmas, Nos. 105254, 105255, 2005 WL 2249587, at *3 (Va. Cir. Ct. July 26, 2005); Rollins v. State, 591 S.E.2d 796 (Ga. 2004). Further research will disclose additional favorable affirmative misadvice decisions handed down after Resendiz in 2001, but prior to Padilla in 1010. This national clear consensus was that affirmative misadvice concerning the adverse immigration consequences of a plea constitutes ineffective assistance of counsel. The simplest conclusion, therefore, is that at least 10 years before Padilla was decided, prejudicial affirmative misadvice was a claim that could be used to invalidate a state or federal conviction as a matter of federal constitutional law. At a minimum, the law in the specific jurisdictions cited above, and any others in which the law was the same, could be used to invalidate convictions that became final after the date of decision in each jurisdiction holding that affirmative misadvice constituted ineffective assistance of counsel. Failure to advise claims, in addition, remain alive prior to Padilla in those jurisdictions with decisions to that effect. These jurisdictions include at least California, Colorado, and New Mexico, which had already held that failure to advise claims constituted ineffective assistance of counsel. People v. Pozo, 746 P.2d 523, 527"529 (Colo.1987); State v. Paredez, 2004"NMSC"036, 17"19, 136 N.M. 533, 539, 101 P.3d 799, 805; People v. Soriano, 194 Cal.App.3d 1470 (1987). The fact that Padilla does not apply retroactively does not invalidate prior state decisions holding to the contrary. In California, the 1987 Soriano decision was based on both the state and federal constitutions. People v. Soriano, 194 Cal.App.3d 1470, 1479 (1987) (Both our federal and state Constitutions give a criminal defendant the right to assistance of counsel. (U.S. Const., 6th Amend.; Cal. Const., art. I, 15.) The right to counsel entitles a defendant to effective counsel. ( Strickland v. Washington (1984) 466 U.S. 668, 686 [80 L.Ed.2d 674, 104 S.Ct. 2052]; People v. Pope, supra, 23 Cal.3d 412, 423-424.) The standard against which counsel's effectiveness will be measured is that of reasonably *1479 competent' attorney who acts as a diligent conscientious advocate. ( United States v. DeCoster (D.C.Cir 1973) 487 F.2d 1197, 1202 [487 F.2d 1197]; accord People v. Pope, supra, 23 Cal.3d at p. 423.)). The federal Constitution provides minimum guarantees of fundamental constitutional rights, but certainly does not prohibit the State of California from granting greater protections in its constitution. Moreover, state courts are charged with enforcing the federal constitutional guarantees, and nothing in Padilla or Chaidez holds that Soriano was in error. It was merely reached the correct conclusion earlier than the federal courts. As Rebecca Sharpless pointed out, the court in declined to address Chaidezs two additional arguments: 1) Teagues analysis does not apply because she, unlike Teague, had a federal rather than a state conviction; and 2) new rules apply in post-conviction proceedings raising ineffective assistance of counsel claims because such claims cannot be brought on direct appeal. The Court thus applied Teague for the first in a federal case, but it did so without ruling that Teague should apply, leaving the question open for future litigation. Moreover, both state and federal litigants can still take up Chaidezs argument that new rules apply in ineffective assistance of counsel cases that must be brought on post-conviction rather than direct appeal. Rebecca Sharpless, Chaidez V. U.S.: Assuming Teague Applies, Padilla Announced A New Rule (2/22/13), http://crimmigration.com/2013/02/22/chaidez-v-us--assuming-teague-applies-padilla-announced--a-new-rule.aspx.

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " FAILURE TO ADVISE CONCERNING IMMIGRATION CONSEQUENCES OF PLEA " RETROACTIVITY OF PADILLA
Chaidez v. United States, 133 S.Ct. 1103 (Feb. 20, 2013) (Padilla does not apply to convictions that were already final on March 31, 2010 under the retroactivity analysis in Teague).

ARTICLE " CAL POST CON " EFFECT OF CHAIDEZ V. UNITED STATES ON CALIFORNIA LAW CONCERNING PADILLA CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL WITH RESPECT TO IMMIGRATION ADVICE
In Chaidez v. United States, ___ U.S.___, ___ S.Ct.___, 2013 WL 610201 (Feb. 20, 2013), the Supreme Court held that Padilla does not apply to convictions that were already final on March 31, 2010 under the retroactivity analysis in Teague. Padilla did not much change on the California law on this subject. In California, in 1987, the First District Court of Appeals held it is ineffective assistance of counsel to fail to investigate the federal immigration consequences of a disposition and to fail to advise a foreign national defendant of them before plea. People v. Soriano, 194 Cal.App.3d 1470 (1987). In 1989, the Fifth District Court of Appeal held it to be ineffective assistance to fail to request a non-deportable sentence. People v. Barocio, 216 Cal.App.3d 99 (1989). Both of these decisions have been binding on trial courts statewide since their decision. Therefore, criminal defense counsel and lower state courts were bound to follow those opinions. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456) (Under the doctrine of stare decisis, all tribunals exercising inferior jurisdiction are required to follow decisions of courts exercising superior jurisdiction.) The California Supreme Court then held it to be ineffective assistance of counsel to give affirmative misadvice to a noncitizen concerning the immigration consequences of a plea if prejudice is shown. In re Resendiz, 25 Cal.4th 230, 105 Cal.Rptr. 2d 431 (2001). The Sixth District Court of Appeals held it to be ineffective assistance of counsel to fail to seek a non-deportable plea to a greater offense. People v. Bautista, 115 Cal.App.4th 229 (2004). The holding of Padilla, therefore, does not significantly change California law concerning effective assistance to noncitizen defendants in advising them of, and helping them avoid, disastrous immigration consequences of criminal convictions. Padillas major effect on California law is that the California Supreme Court must now recognize that a failure to advise a defendant can constitute ineffective assistance of counsel, an issue on which it was as yet unpersuaded in 2001 when it decided Resendiz. This unpersuaded statement, however, was nothing more than dictum, since the failure to advise claim was not before the California Supreme Court in Resendiz. The Court in Resendiz did not overrule or even cite the Soriano decision, that held since 1987 that failure to advise was ineffective. In Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (Mar. 31, 2010), the Supreme Court held that the Sixth Amendment requires an attorney for a criminal defendant affirmatively to provide accurate advice about the risk of deportation arising from a guilty plea. In Chaidez v. United States, ___ U.S.___, ___ S.Ct.___, 2013 WL 610201 (Feb. 20, 2013), the Supreme Court held that under the principles set out in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), Padilla does not have retroactive effect. Therefore, defendants whose convictions became final prior to Padilla [March 31, 2010] therefore cannot benefit from its holding. (Chaidez, supra, at *10.) Defendants with convictions that were still on appeal, or as to which the time for filing a notice of appeal had not yet expired, may still take advantage of the new rule of Padilla. Seven justices joined in the judgment, with Justice Sotomayor, joined by Justice Ginsberg, dissenting. There are several important limitations to the Chaidez decision. Padilla decided two distinct claims: First, it held that counsels affirmative misadvice concerning the actual immigration consequences of a plea constituted ineffective assistance of counsel. Second, it held that counsels failure affirmatively to advise the client of those consequences also constituted ineffective assistance of counsel. In Chaidez, only a failure to advise claim was raised, and the Supreme Courts holding in Chaidez therefore only addressed failure to advise claims. The Supreme Court explicitly distinguished affirmative misadvice claims as not subject to its retroactivity holding: True enough, three federal circuits (and a handful of state courts) held before Padilla that misstatements about deportation could support an ineffective assistance claim. But those decisions reasoned only that a lawyer may not affirmatively misrepresent his expertise or otherwise actively mislead his client on any important matter, however related to a criminal prosecution. See, e.g., United States v. Kwan, 407 F.3d 1005, 1015"1017 (C.A.9 2005). They co-existed happily with precedent, from the same jurisdictions (and almost all others), holding that deportation is not so unique as to warrant an exception to the general rule that a defendant need not be advised of the [collateral] consequences of a guilty plea. United States v. Campbell, 778 F.2d 764, 769 (C.A.11 1985).FN14 So at most, Chaidez has shown that a minority of courts recognized a separate rule for material misrepresentations, regardless whether they concerned deportation or another collateral matter. That limited rule does not apply to Chaidez's case. And because it lived in harmony with the exclusion of claims like hers from the Sixth Amendment, it does not establish what she needs to"that all reasonable judges, prior to Padilla, thought they were living in a Padilla-like world. (Id. at ___ [emphasis supplied].) Therefore, the Chaidez holding on retroactivity of Padilla does not apply to the separate rule for material misrepresentations as to federal immigration consequences of a plea, that pre-existed Padilla and lived in harmony with the exclusion of claims like hers [failure to advise claims] from the Sixth Amendment . . . . (Ibid.) The affirmative misrepresentation rule, that material misrepresentations constitute ineffective assistance of counsel, falls within the normal run of Strickland claims, and there is no reason to believe it was a new rule. This rule by 2001 was considered a clear state and federal consensus on federal constitutional ineffective assistance of counsel. One of those state courts, though not mentioned in Chaidez, that earlier recognized failure to advise clients was the California Supreme Court. In 2001, ten years before Padilla was decided, that court held that the collateral consequences doctrine did not categorically bar a claim that affirmative misadvice concerning the adverse immigration consequences of a plea constituted reversible ineffective assistance of counsel if prejudice was shown. In re Resendiz, 25 Cal.4th 230, 248, 105 Cal.Rptr. 2d 431 (2001) (For the foregoing reasons, we conclude that neither the existence of section 1016.5 nor the collateral nature of immigration consequences constitutes a per se bar to an ineffective assistance of counsel claim based on counsel's misadvice about the adverse immigration consequences of a guilty plea. Therefore, we may not in this case avoid the circumstance-specific reasonableness inquiry required by Strickland. ( Roe v. Flores"Ortega, supra, 528 U.S. at p. 478 [120 S.Ct. at p. 1035]; see also Hill, supra, 474 U.S. at pp. 57"58, 106 S.Ct. 366; U.S. v. Mora"Gomez, supra, 875 F.Supp. at p. 1213.) Accordingly, we shall proceed to apply Strickland 's familiar reasonableness standard to the circumstances of the instant case. (Strickland, supra, 466 U.S. at p. 688, 104 S.Ct. 2052.)). In reaching that conclusion, the court reviewed the nationwide state of the law " state and federal -- concerning affirmative misadvice claims of ineffective assistance of counsel: Even among the federal and other courts cited by the Attorney General, the clear consensus is that an affirmative misstatement regarding deportation may constitute ineffective assistance. (U.S. v. Mora-Gomez, supra, 875 F.Supp. at p. 1212.) FN14 FN14. See also People v. Huynh (1991) 229 Cal.App.3d 1067, 1083, 281 Cal.Rptr. 785; Ostrander v. Green (4th Cir.1995) 46 F.3d 347, 355, overruled on another point in O'Dell v. Netherland (4th Cir.1996) 95 F.3d 1214; U.S. v. Del Rosario, supra, 902 F.2d at page 59 and footnote 2; U.S. v. George (7th Cir.1989) 869 F.2d 333, 337; United States v. Campbell (11th Cir.1985) 778 F.2d 764, 768"769; Downs"Morgan v. United States (11th Cir.1985) 765 F.2d 1534, 1541; United States v. Santelises (2d Cir.1975) 509 F.2d 703, 703"704; United States v. Briscoe (D.C.Cir.1970) 432 F.2d 1351, 1353"1354; U.S. v. Corona-Maldonado (D.Kan.1999) 46 F.Supp.2d 1171, 1173; United States v. Nagaro-Garbin (E.D.Mich.1987) 653 F.Supp. 586, 590; People v. Pozo, supra, 746 P.2d at page 527, footnote 5; People v. Ford (1995) 86 N.Y.2d 397, 633 N.Y.S.2d 270, 657 N.E.2d 265, 268"269; People v. Correa (1985) 108 Ill.2d 541, 92 Ill.Dec. 496, 485 N.E.2d 307, 310"311. There are a very few cases suggesting an affirmative misrepresentation is constitutionally irremediable (see, e.g., United States v. Sambro (D.C.Cir.1971) 454 F.2d 918, 921 922; United States v. Parrino (2d Cir.1954) 212 F.2d 919, 921"922), but, as one court has remarked, we properly may regard those cases as aberrations (Strader v. Garrison (4th Cir.1979) 611 F.2d 61, 64). (Id. at 251, 105 Cal.Rptr. 2d 446.) See also, e.g., United States v. Couto, 311 F.3d 179, 187-88 (2d Cir. 2002); Commonwealth v. Tahmas, Nos. 105254, 105255, 2005 WL 2249587, at *3 (Va. Cir. Ct. July 26, 2005); Rollins v. State, 591 S.E.2d 796 (Ga. 2004). Further research will disclose additional favorable affirmative misadvice decisions handed down after Resendiz in 2001, but prior to Padilla in 2010. This national clear consensus was that affirmative misadvice concerning the adverse immigration consequences of a plea constitutes deficient performance of counsel. The simplest conclusion, therefore, is that at least 10 years before Padilla was decided, prejudicial affirmative misadvice was a claim that could be used to invalidate a state or federal conviction as a matter of federal constitutional law. At a minimum, the law in the specific jurisdictions cited above, and any others in which the law was the same, could be used to invalidate convictions that became final after the date of decision in each jurisdiction holding that affirmative misadvice constituted ineffective assistance of counsel. Failure to advise claims, in addition, remain alive prior to Padilla in those jurisdictions with decisions to that effect. These jurisdictions include at least California, Colorado, and New Mexico, which had already held that failure to advise claims constituted ineffective assistance of counsel. People v. Pozo, 746 P.2d 523, 527"529 (Colo.1987); State v. Paredez, 2004"NMSC"036, 17"19, 136 N.M. 533, 539, 101 P.3d 799, 805; People v. Soriano, 194 Cal.App.3d 1470 (1987). The fact that Padilla does not apply retroactively does not invalidate prior state decisions holding to the contrary. The Supreme Court in Chaidez was wrong to omit California from the (short) list of jurisdictions that adopted the failure to advise rule prior to Padilla. California since 1987 has held that failure to advise constitutes ineffective assistance of counsel. People v. Soriano (1987) 194 Cal.App.3d 1470, 240 Cal.Rptr. 328. This California 1987 decision was based on both the state and federal constitutions. People v. Soriano, 194 Cal.App.3d 1470, 1478-1479 (1987) (Both our federal and state Constitutions give a criminal defendant the right to assistance of counsel. (U.S. Const., 6th Amend.; Cal. Const., art. I, 15.) The right to counsel entitles a defendant to effective counsel. ( Strickland v. Washington (1984) 466 U.S. 668, 686 [80 L.Ed.2d 674, 104 S.Ct. 2052]; People v. Pope, supra, 23 Cal.3d 412, 423-424.) The standard against which counsel's effectiveness will be measured is that of reasonably *1479 competent' attorney who acts as a diligent conscientious advocate. ( United States v. DeCoster (D.C.Cir 1973) 487 F.2d 1197, 1202 [487 F.2d 1197]; accord People v. Pope, supra, 23 Cal.3d at p. 423.)). The federal Constitution provides minimum guarantees of fundamental constitutional rights, but certainly does not prohibit the State of California from granting greater protections in its constitution. States must enforce minimum federal constitutional standards, but are free to adopt additional protections. (Reynolds v. Superior Court (1974) 12 Cal.3d 834, 842, 117 Cal.Rptr. 437; Cal. Const., Art. I, 24 (declaring that [r]ights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution.)) Moreover, state courts are charged with enforcing federal constitutional guarantees, and nothing in Padilla or Chaidez holds that Soriano was in error. It merely reached the correct conclusion earlier than the federal courts. As Rebecca Sharpless pointed out, the court in declined to address Chaidezs two additional arguments: 1) Teagues analysis does not apply because she, unlike Teague, had a federal rather than a state conviction; and 2) new rules apply in post-conviction proceedings raising ineffective assistance of counsel claims because such claims cannot be brought on direct appeal. The Court thus applied Teague for the first in a federal case, but it did so without ruling that Teague should apply, leaving the question open for future litigation. Moreover, both state and federal litigants can still take up Chaidezs argument that new rules apply in ineffective assistance of counsel cases that must be brought on post-conviction rather than direct appeal. Rebecca Sharpless, Chaidez V. U.S.: Assuming Teague Applies, Padilla Announced A New Rule (2/22/13), http://crimmigration.com/2013/02/22/chaidez-v-us--assuming-teague-applies-padilla-announced--a-new-rule.aspx. Since these two arguments were not properly preserved and presented in Chaidez, the Supreme Court did not decide them. Therefore, counsel are free to argue: (1) Teague does not apply in state proceedings, unless the state has independently chosen to follow the Teague rule. (2) New rules apply in post-conviction proceedings raising ineffective assistance of counsel claims because such claims cannot be brought on direct appeal. Chaidez does not apply to review of state claims under state authority. It held merely that Padilla does not apply to cases already final on March 31, 2010, when it was decided. Favorable state authority decided prior to Padilla holding defense counsels failure to advise, or affirmative misadvice, concerning adverse immigration consequences of a plea such as that in California, remains intact. This is particularly important in California, where state authority condemned failure to advise as ineffective assistance of counsel has existed since 1987. Following the rule set forth in People v. Soriano, a California Court of Appeals panel in 1989 made explicit what was only implicit in Soriano: the duty to advise about immigration consequences also includes the duty to defend against those consequences. People v. Barocio, (1989) 216 Cal.App.3d 99 (failure to file judicial recommendation against deportation or seek 364 day sentence is ineffective assistance of counsel). This was also the holding in People v. Bautista (2004) 115 Cal.App.4th 229 (counsel correctly told the defendant that he would be deported for possession of sale conviction, but failure to attempt to plead up to offer to sell or transportation may be ineffective assistance of counsel). This prior authority does not depend on Padilla, and so remains useful even though Padilla itself does not apply to cases already final when it was decided.

POST CON RELIEF " INEFFECTIVE ASSISTANCE OF COUNSEL " FAILURE TO ADVISE OF IMMIGRATION CONSEQUENCES " STATE OF THE LAW PRE-PADILLA
In Chaidez v. United States, ___ U.S.___, ___ S.Ct.___, 2013 WL 610201 (Feb. 20, 2013), the court stated: All 10 federal appellate courts to consider the question decided, in the words of one, that counsel's failure to inform a defendant of the collateral consequences of a guilty plea is never a violation of the Sixth Amendment. Santos-Sanchez v. United States, 548 F.3d 327, 334 (C.A.5 2008).FN7 That constitutional guarantee, another typical decision expounded, assures an accused of effective assistance of counsel in criminal prosecutions ; accordingly, advice about matters like deportation, which are not a part of or enmeshed in the criminal proceeding,'' does not fall within the Amendment's scope. United States v. George, 869 F.2d 333, 337 (C.A.7 1989). Appellate courts in almost 30 States agreed.FN8 By contrast, only two state courts held that an attorney could violate the Sixth Amendment by failing to inform a client about deportation risks or other collateral consequences of a guilty plea.FN9 FN7. See Broomes v. Ashcroft, 358 F.3d 1251, 1256 (C.A.10 2004); United States v. Fry, 322 F.3d 1198, 1200"1201 (C.A.9 2003); United States v. Gonzalez, 202 F.3d 20, 25 (C.A.1 2000); Russo v. United States, 1999 WL 164951, *2 (C.A.2, Mar. 22, 1999); Ogunbase v. United States, 1991 WL 11619, *1 (C.A.6, Feb. 5, 1991); United States v. Del Rosario, 902 F.2d 55, 58"59 (C.A.D.C.1990); United States v. George, 869 F.2d 333, 337 (C.A.7 1989); United States v. Yearwood, 863 F.2d 6, 7"8 (C.A.4 1988); United States v. Campbell, 778 F.2d 764, 768"769 (C.A.11 1985). FN8. Rumpel v. State, 847 So.2d 399, 402"405 (Ala.Crim.App.2002); Tafoya v. State, 500 P.2d 247, 252 (Alaska 1972); State v. Rosas, 183 Ariz. 421, 423, 904 P.2d 1245, 1247 (App.1995); Niver v. Commissioner of Correction, 101 Conn.App. 1, 3"5, 919 A.2d 1073, 1075"1076 (2007) (per curiam ); State v. Christie, 655 A.2d 836, 841 (Del.Super.1994); Matos v. United States, 631 A.2d 28, 31"32 (D.C.1993); Major v. State, 814 So.2d 424, 431 (Fla.2002); People v. Huante, 143 Ill.2d 61, 68"71, 156 Ill.Dec. 756, 571 N.E.2d 736, 740"741 (1991); State v. Ramirez, 636 N.W.2d 740, 743"746 (Iowa 2001); State v. Muriithi, 273 Kan. 952, 961, 46 P.3d 1145, 1152 (2002); Commonwealth v. Fuartado, 170 S.W.3d 384, 385"386 (Ky.2005); State v. Montalban, 2000"2739, p. 4 (La. 2/26/02), 810 So.2d 1106, 1110; Commonwealth v. Fraire, 55 Mass.App. 916, 917, 774 N.E.2d 677, 678"679 (2002); People v. Davidovich, 463 Mich. 446, 452, 618 N.W.2d 579, 582 (2000) (per curiam ); State ex rel. Nixon v. Clark, 926 S.W.2d 22, 25 (Mo.App.1996); State v. Zarate, 264 Neb. 690, 693"696, 651 N.W.2d 215, 221"223 (2002); Barajas v. State, 115 Nev. 440, 441"442, 991 P.2d 474, 475"476 (1999) (per curiam ); State v. Chung, 210 N.J.Super. 427, 434, 510 A.2d 72, 76 (App.Div.1986); People v. Ford, 86 N.Y.2d 397, 403"404, 633 N.Y.S.2d 270, 657 N.E.2d 265, 268"269 (1995); State v. Dalman, 520 N.W.2d 860, 863"864 (N.D.1994); Commonwealth v. Frometa, 520 Pa. 552, 555"557, 555 A.2d 92, 93"94 (1989); State v. Alejo, 655 A.2d 692, 692"693 (R.I.1995); Nikolaev v. Weber, 2005 S.D. 100, 11"12, 705 N.W.2d 72, 75"77 (per curiam ); Bautista v. State, 160 S.W.3d 917, 922 (Tenn.Crim.App.2004); Perez v. State, 31 S.W.3d 365, 367"368 (Tex.App.2000); State v. Rojas"Martinez, 2005 UT 86, 15"20, 125 P.3d 930, 934"935; State v. Martinez"Lazo, 100 Wash.App. 869, 876"878, 999 P.2d 1275, 1279"1280 (2000); State v. Santos, 136 Wis.2d 528, 531, 401 N.W.2d 856, 858 (App.1987). FN9. People v. Pozo, 746 P.2d 523, 527"529 (Colo.1987); State v. Paredez, 2004"NMSC"036, 17"19, 136 N.M. 533, 539, 101 P.3d 799, 805. (Chaidez, supra, at ___.) Chaidez is incorrect in omitting California from the list of jurisdictions holding failure to advise concerning immigration consequences constitutes ineffective assistance of counsel. California since 1987 has held that failure to advise constitutes ineffective assistance of counsel. People v. Soriano (1987) 194 Cal.App.3d 1470, 240 Cal.Rptr. 328.

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " AFFIRMATIVE MISADVICE CONCERNING IMMIGRATION CONSEQUENCES " STATE OF THE LAW PRIOR TO PADILLA
In Chaidez v. United States, ___ U.S.___, ___ S.Ct.___, 2013 WL 610201 (Feb. 20, 2013), the court stated: True enough, three federal circuits (and a handful of state courts) held before Padilla that misstatements about deportation could support an ineffective assistance claim. But those decisions reasoned only that a lawyer may not affirmatively misrepresent his expertise or otherwise actively mislead his client on any important matter, however related to a criminal prosecution. See, e.g., United States v. Kwan, 407 F.3d 1005, 1015"1017 (C.A.9 2005). They co-existed happily with precedent, from the same jurisdictions (and almost all others), holding that deportation is not so unique as to warrant an exception to the general rule that a defendant need not be advised of the [collateral] consequences of a guilty plea. United States v. Campbell, 778 F.2d 764, 769 (C.A.11 1985).FN14 So at most, Chaidez has shown that a minority of courts recognized a separate rule for material misrepresentations, regardless whether they concerned deportation or another collateral matter. That limited rule does not apply to Chaidez's case. And because it lived in harmony with the exclusion of claims like hers from the Sixth Amendment, it does not establish what she needs to"that all reasonable judges, prior to Padilla, thought they were living in a Padilla-like world. . . . Nor, finally, does St. Cyr have any relevance here. That decision stated what is common sense (and what we again recognized in Padilla ): A reasonably competent lawyer will tell a non-citizen client about a guilty plea's deportation consequences because [p]reserving the client's right to remain in the United States may be more important to the client than any potential jail sentence. Padilla, 559 U.S., at """", 130 S.Ct., at 1483 (quoting St. Cyr, 533 U.S., at 322, 121 S.Ct. 2271). But in saying that much, St. Cyr did not determine that the Sixth Amendment requires a lawyer to provide such information. (Chaidez, supra, at ___.)

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " APPLICABILITY OF CHAIDEZ TO REVIEW OF FEDERAL CONVICTIONS
In Chaidez v. United States, ___ U.S.___, ___n.16, ___ S.Ct.___, 2013 WL 610201 (Feb. 20, 2013), the court stated: FN16. Chaidez makes two back-up arguments in her merits briefs"that Teague's bar on retroactivity does not apply when a petitioner challenges a federal conviction, or at least does not do so when she makes a claim of ineffective assistance. Brief for Petitioner 27"39. But Chaidez did not include those issues in her petition for certiorari. Nor, still more critically, did she adequately raise them in the lower courts. Only her petition for rehearing en banc in the Seventh Circuit at all questioned Teague 's applicability, and her argument there"that a Teague-light standard should apply to challenges to federal convictions"differs from the ones she has made in this Court. See Petition for Rehearing and for Rehearing En Banc in No. 10"3623(CA7), p. 13. Moreover, we cannot find any case in which a federal court has considered Chaidez's contention that Teague should not apply to ineffective assistance claims. [M]indful that we are a court of review, not of first view, we decline to rule on Chaidez's new arguments. Cutter v. Wilkinson, 544 U.S. 709, 718, n. 7, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005). (Chaidez, supra, at ___.)

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " APPLICABILITY OF CHAIDEZ TO REVIEW OF STATE CONVICTIONS
In Chaidez v. United States, ___ U.S.___, ___n.16, ___ S.Ct.___, 2013 WL 610201 (Feb. 20, 2013), the court held Padilla did not apply to a post-conviction challenge to a federal conviction on grounds that counsel failed to advise the defendant concerning the immigration consequences of a plea in a case already final when Padilla was decided on March 31, 2010. Chaidez does not technically apply to review of state convictions in state court. It held merely that Padilla does not apply to cases already final on March 31, 2010, when it was decided. Favorable state authority, on independent state grounds, decided prior to Padilla holding defense counsels failure to advise, or affirmative misadvice, concerning adverse immigration consequences of a plea such as that in California, remains intact. This is particularly important in California, where state authority condemned failure to advise as ineffective assistance of counsel has existed since 1987. This prior authority does not depend on Padilla, and so remains useful even though Padilla itself does not apply to cases already final when it was decided.

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " AFFIRMATIVE MISADVICE OF IMMIGRATION CONSEQUENCES " CHAIDEZ DOES NOT APPLY TO REVIEW OF FEDERAL OR STATE CLAIMS OF AFFIRMATIVE MISADVICE
In Chaidez v. United States, ___ U.S.___, ___n.16, ___ S.Ct.___, 2013 WL 610201 (Feb. 20, 2013), the court held Padilla did not apply to a post-conviction challenge to a federal conviction in a case already final when Padilla was decided on March 31, 2010 on grounds that counsel failed to advise the defendant concerning the immigration consequences of a plea. Chaidez involved a claim of failure to advise, rather than affirmative misadvice. Its holding therefore does not pertain in cases involving affirmative misadvice. Chaidez made this clear: [T]hree federal circuits (and a handful of state courts) held before Padilla that misstatements about deportation could support an ineffective assistance claim. But those decisions reasoned only that a lawyer may not affirmatively misrepresent his expertise or otherwise actively mislead his client on any important matter, however related to a criminal prosecution. See, e.g., United States v. Kwan, 407 F.3d 1005, 1015"1017 (C.A.9 2005). They co-existed happily with precedent, from the same jurisdictions (and almost all others), holding that deportation is not so unique as to warrant an exception to the general rule that a defendant need not be advised of the [collateral] consequences of a guilty plea. United States v. Campbell, 778 F.2d 764, 769 (C.A.11 1985). So at most, Chaidez has shown that a minority of courts recognized a separate rule for material misrepresentations, regardless whether they concerned deportation or another collateral matter. That limited rule does not apply to Chaidez's case. And because it lived in harmony with the exclusion of claims like hers from the Sixth Amendment, it does not establish what she needs to"that all reasonable judges, prior to Padilla, thought they were living in a Padilla-like world. (Id. at ___.) One of those state courts, though not mentioned in Chaidez, was the California Supreme Court. In 2001, ten years before Padilla was decided, that court held that the collateral consequences doctrine did not categorically bar a claim that affirmative misadvice concerning the adverse immigration consequences of a plea constituted reversible ineffective assistance of counsel if prejudice was shown. In re Resendiz, 25 Cal.4th 230, 248, 105 Cal.Rptr. 2d 431 (2001)(For the foregoing reasons, we conclude that neither the existence of section 1016.5 nor the collateral nature of immigration consequences constitutes a per se bar to an ineffective assistance of counsel claim based on counsel's misadvice about the adverse immigration consequences of a guilty plea. Therefore, we may not in this case avoid the circumstance-specific reasonableness inquiry required by Strickland. ( Roe v. Flores"Ortega, supra, 528 U.S. at p. 478 [120 S.Ct. at p. 1035]; see also Hill, supra, 474 U.S. at pp. 57"58, 106 S.Ct. 366; U.S. v. Mora"Gomez, supra, 875 F.Supp. at p. 1213.) Accordingly, we shall proceed to apply Strickland 's familiar reasonableness standard to the circumstances of the instant case. ( Strickland, supra, 466 U.S. at p. 688, 104 S.Ct. 2052.)). In reaching that conclusion, the court reviewed the nationwide state of the law " state and federal -- concerning affirmative misadvice claims of ineffective assistance of counsel: Even among the federal and other courts cited by the Attorney General, the clear consensus is that an affirmative misstatement regarding deportation may constitute ineffective assistance. (U.S. v. Mora-Gomez, supra, 875 F.Supp. at p. 1212.) FN14 FN14. See also People v. Huynh (1991) 229 Cal.App.3d 1067, 1083, 281 Cal.Rptr. 785; Ostrander v. Green (4th Cir.1995) 46 F.3d 347, 355, overruled on another point in O'Dell v. Netherland (4th Cir.1996) 95 F.3d 1214; U.S. v. Del Rosario, supra, 902 F.2d at page 59 and footnote 2; U.S. v. George (7th Cir.1989) 869 F.2d 333, 337; United States v. Campbell (11th Cir.1985) 778 F.2d 764, 768"769; Downs"Morgan v. United States (11th Cir.1985) 765 F.2d 1534, 1541; United States v. Santelises (2d Cir.1975) 509 F.2d 703, 703"704; United States v. Briscoe (D.C.Cir.1970) 432 F.2d 1351, 1353"1354; U.S. v. Corona-Maldonado (D.Kan.1999) 46 F.Supp.2d 1171, 1173; United States v. Nagaro-Garbin (E.D.Mich.1987) 653 F.Supp. 586, 590; People v. Pozo, supra, 746 P.2d at page 527, footnote 5; People v. Ford (1995) 86 N.Y.2d 397, 633 N.Y.S.2d 270, 657 N.E.2d 265, 268"269; People v. Correa (1985) 108 Ill.2d 541, 92 Ill.Dec. 496, 485 N.E.2d 307, 310"311. There are a very few cases suggesting an affirmative misrepresentation is constitutionally irremediable (see, e.g., United States v. Sambro (D.C.Cir.1971) 454 F.2d 918, 921 922; United States v. Parrino (2d Cir.1954) 212 F.2d 919, 921"922), but, as one court has remarked, we properly may regard those cases as aberrations (Strader v. Garrison (4th Cir.1979) 611 F.2d 61, 64). (Id. at 251, 105 Cal.Rptr. 2d 446.) See also, e.g., United States v. Couto, 311 F.3d 179, 187-88 (2d Cir. 2002); Commonwealth v. Tahmas, Nos. 105254, 105255, 2005 WL 2249587, at *3 (Va. Cir. Ct. July 26, 2005); Rollins v. State, 591 S.E.2d 796 (Ga. 2004). Further research will disclose additional favorable affirmative misadvice decisions handed down after Resendiz in 2001, but prior to Padilla in 1010. This national clear consensus was that affirmative misadvice concerning the adverse immigration consequences of a plea constitutes ineffective assistance of counsel. The simplest conclusion, therefore, is that at least 10 years before Padilla was decided, prejudicial affirmative misadvice was a claim that could be used to invalidate a state or federal conviction as a matter of federal constitutional law. At a minimum, the law in the specific jurisdictions cited above, and any others in which the law was the same, could be used to invalidate convictions that became final after the date of decision in each jurisdiction holding that affirmative misadvice constituted ineffective assistance of counsel. Failure to advise claims, in addition, remain alive prior to Padilla in those jurisdictions with decisions to that effect. These jurisdictions include at least California, Colorado, and New Mexico, which had already held that failure to advise claims constituted ineffective assistance of counsel. People v. Pozo, 746 P.2d 523, 527"529 (Colo.1987); State v. Paredez, 2004"NMSC"036, 17"19, 136 N.M. 533, 539, 101 P.3d 799, 805; People v. Soriano, 194 Cal.App.3d 1470 (1987). The fact that Padilla does not apply retroactively does not invalidate prior state decisions holding to the contrary. In California, the 1987 Soriano decision was based on both the state and federal constitutions. People v. Soriano, 194 Cal.App.3d 1470, 1479 (1987) (Both our federal and state Constitutions give a criminal defendant the right to assistance of counsel. (U.S. Const., 6th Amend.; Cal. Const., art. I, 15.) The right to counsel entitles a defendant to effective counsel. ( Strickland v. Washington (1984) 466 U.S. 668, 686 [80 L.Ed.2d 674, 104 S.Ct. 2052]; People v. Pope, supra, 23 Cal.3d 412, 423-424.) The standard against which counsel's effectiveness will be measured is that of reasonably *1479 competent' attorney who acts as a diligent conscientious advocate. ( United States v. DeCoster (D.C.Cir 1973) 487 F.2d 1197, 1202 [487 F.2d 1197]; accord People v. Pope, supra, 23 Cal.3d at p. 423.)). The federal Constitution provides minimum guarantees of fundamental constitutional rights, but certainly does not prohibit the State of California from granting greater protections in its constitution. Moreover, state courts are charged with enforcing the federal constitutional guarantees, and nothing in Padilla or Chaidez holds that Soriano was in error. It was merely reached the correct conclusion earlier than the federal courts. As Rebecca Sharpless pointed out, the court in declined to address Chaidezs two additional arguments: 1) Teagues analysis does not apply because she, unlike Teague, had a federal rather than a state conviction; and 2) new rules apply in post-conviction proceedings raising ineffective assistance of counsel claims because such claims cannot be brought on direct appeal. The Court thus applied Teague for the first in a federal case, but it did so without ruling that Teague should apply, leaving the question open for future litigation. Moreover, both state and federal litigants can still take up Chaidezs argument that new rules apply in ineffective assistance of counsel cases that must be brought on post-conviction rather than direct appeal. Rebecca Sharpless, Chaidez V. U.S.: Assuming Teague Applies, Padilla Announced A New Rule (2/22/13), http://crimmigration.com/2013/02/22/chaidez-v-us--assuming-teague-applies-padilla-announced--a-new-rule.aspx.

POST CON RELIEF " INEFFECTIVE ASSISTANCE OF COUNSEL " FAILURE TO ADVISE OF IMMIGRATION CONSEQUENCES " STATE OF THE LAW PRE-PADILLA
In Chaidez v. United States, ___ U.S.___, ___ S.Ct.___, 2013 WL 610201 (Feb. 20, 2013), the court stated: All 10 federal appellate courts to consider the question decided, in the words of one, that counsel's failure to inform a defendant of the collateral consequences of a guilty plea is never a violation of the Sixth Amendment. Santos-Sanchez v. United States, 548 F.3d 327, 334 (C.A.5 2008).FN7 That constitutional guarantee, another typical decision expounded, assures an accused of effective assistance of counsel in criminal prosecutions ; accordingly, advice about matters like deportation, which are not a part of or enmeshed in the criminal proceeding,'' does not fall within the Amendment's scope. United States v. George, 869 F.2d 333, 337 (C.A.7 1989). Appellate courts in almost 30 States agreed.FN8 By contrast, only two state courts held that an attorney could violate the Sixth Amendment by failing to inform a client about deportation risks or other collateral consequences of a guilty plea.FN9 FN7. See Broomes v. Ashcroft, 358 F.3d 1251, 1256 (C.A.10 2004); United States v. Fry, 322 F.3d 1198, 1200"1201 (C.A.9 2003); United States v. Gonzalez, 202 F.3d 20, 25 (C.A.1 2000); Russo v. United States, 1999 WL 164951, *2 (C.A.2, Mar. 22, 1999); Ogunbase v. United States, 1991 WL 11619, *1 (C.A.6, Feb. 5, 1991); United States v. Del Rosario, 902 F.2d 55, 58"59 (C.A.D.C.1990); United States v. George, 869 F.2d 333, 337 (C.A.7 1989); United States v. Yearwood, 863 F.2d 6, 7"8 (C.A.4 1988); United States v. Campbell, 778 F.2d 764, 768"769 (C.A.11 1985). FN8. Rumpel v. State, 847 So.2d 399, 402"405 (Ala.Crim.App.2002); Tafoya v. State, 500 P.2d 247, 252 (Alaska 1972); State v. Rosas, 183 Ariz. 421, 423, 904 P.2d 1245, 1247 (App.1995); Niver v. Commissioner of Correction, 101 Conn.App. 1, 3"5, 919 A.2d 1073, 1075"1076 (2007) (per curiam ); State v. Christie, 655 A.2d 836, 841 (Del.Super.1994); Matos v. United States, 631 A.2d 28, 31"32 (D.C.1993); Major v. State, 814 So.2d 424, 431 (Fla.2002); People v. Huante, 143 Ill.2d 61, 68"71, 156 Ill.Dec. 756, 571 N.E.2d 736, 740"741 (1991); State v. Ramirez, 636 N.W.2d 740, 743"746 (Iowa 2001); State v. Muriithi, 273 Kan. 952, 961, 46 P.3d 1145, 1152 (2002); Commonwealth v. Fuartado, 170 S.W.3d 384, 385"386 (Ky.2005); State v. Montalban, 2000"2739, p. 4 (La. 2/26/02), 810 So.2d 1106, 1110; Commonwealth v. Fraire, 55 Mass.App. 916, 917, 774 N.E.2d 677, 678"679 (2002); People v. Davidovich, 463 Mich. 446, 452, 618 N.W.2d 579, 582 (2000) (per curiam ); State ex rel. Nixon v. Clark, 926 S.W.2d 22, 25 (Mo.App.1996); State v. Zarate, 264 Neb. 690, 693"696, 651 N.W.2d 215, 221"223 (2002); Barajas v. State, 115 Nev. 440, 441"442, 991 P.2d 474, 475"476 (1999) (per curiam ); State v. Chung, 210 N.J.Super. 427, 434, 510 A.2d 72, 76 (App.Div.1986); People v. Ford, 86 N.Y.2d 397, 403"404, 633 N.Y.S.2d 270, 657 N.E.2d 265, 268"269 (1995); State v. Dalman, 520 N.W.2d 860, 863"864 (N.D.1994); Commonwealth v. Frometa, 520 Pa. 552, 555"557, 555 A.2d 92, 93"94 (1989); State v. Alejo, 655 A.2d 692, 692"693 (R.I.1995); Nikolaev v. Weber, 2005 S.D. 100, 11"12, 705 N.W.2d 72, 75"77 (per curiam ); Bautista v. State, 160 S.W.3d 917, 922 (Tenn.Crim.App.2004); Perez v. State, 31 S.W.3d 365, 367"368 (Tex.App.2000); State v. Rojas"Martinez, 2005 UT 86, 15"20, 125 P.3d 930, 934"935; State v. Martinez"Lazo, 100 Wash.App. 869, 876"878, 999 P.2d 1275, 1279"1280 (2000); State v. Santos, 136 Wis.2d 528, 531, 401 N.W.2d 856, 858 (App.1987). FN9. People v. Pozo, 746 P.2d 523, 527"529 (Colo.1987); State v. Paredez, 2004"NMSC"036, 17"19, 136 N.M. 533, 539, 101 P.3d 799, 805. (Chaidez, supra, at ___.) Chaidez is incorrect in omitting California from the list of jurisdictions holding failure to advise concerning immigration consequences constitutes ineffective assistance of counsel. California since 1987 has held that failure to advise constitutes ineffective assistance of counsel. People v. Soriano (1987) 194 Cal.App.3d 1470, 240 Cal.Rptr. 328.

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " FAILURE TO ADVISE OF IMMIGRATION CONSEQUENCES " ARGUMENT THAT TEAGUE DOES NOT APPLY TO CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL MADE FOR THE FIRST TIME " PRACTICE ADVISORY
Counsel can argue that Teague does not apply to first-time claims of ineffective assistance of counsel. In most direct appeals, the record is not sufficient to raise the issue "my attorney did not give me immigration advice" because that requires testimony outside the record on direct appeal. If the Teague rule applies to first-time IAC claims, it is impossible for any court ever to announce a new rule/new development in the area of IAC claims, as such a claim could not be raised on direct appeal, and would be barred by Teague in a post-conviction IAC claim. Therefore, the Constitution does not permit Teague to bar such claims the first time they are made.

POST CON RELIEF"GROUNDS"INEFFECTIVE ASSISTANCE OF COUNSEL"PLEA BARGAINING
Lafler v. Cooper, 132 S.Ct. 1376 (Mar. 21, 2012) (defendant received ineffective assistance of counsel during plea bargaining, in rejecting an offer of a 51-to-85-month sentence, because counsel misadvised him that the prosecution would be unable to establish intent to murder, prejudice can be shown by establishing a reasonable probability the defendant and the trial court would have accepted the more favorable guilty plea absent counsels error). NOTE: The majority cites Padilla's floodgates discussion in defending the point that "Courts have recognized claims of this sort for over 30 years" without creating undo chaos. By "this sort," they mean Strickland claims about rejected pleas, which have a little bit more of a pedigree than non-advisal Padilla claims. This is another case with an application of Strickland that the dissent claims is novel. This language is strong confirmation that the Court understands Padilla's floodgates discussion as assuming its radioactivity as a mere application of Strickland and not a new rule. Thanks to Dan Kesselbrenner and Isaac Wheeler.

POST CON RELIEF - GROUNDS - INEFECTIVE ASSISTANCE OF COUNSEL - AFFIRMATIVE MISADVICE OF IMMIGRATION CONSEQUENCES - SUPREME COURT GRANTS CERTIORARI
Padilla v. Kentucky, __ S.Ct. __, 2009 WL 425077 (Feb. 23, 2009) (mem) (United States Supreme Court granted cert in Padilla v. Kentucky, in which the Kentucky Supreme Court affirmed the denial of post-conviction relief on a claim of ineffective assistance of counsel for affirmatively misadvising the defendant concerning the immigration consequences of his conviction during plea bargaining). Oral argument will be heard in the fall.

POST CON RELIEF - PLEA - NO CONTEST - MOTION TO WITHDRAW - USE OF NO CONTEST PLEA AGAINST DEFENDANT IN CIVIL IMMIGRATION PROCEEDINGS
The difference between a plea of no contest, or nolo contendere, and a guilty plea is chiefly that the no contest plea may not be used against the defendant in civil proceedings, whereas the guilty plea can. There is no difference between the two pleas insofar as the criminal proceedings are concerned. Therefore, when a defendant is allowed to enter a no contest plea in criminal proceedings, s/he is typically informed that the plea may not be used against him or her in civil proceedings. Immigration proceedings are civil, not criminal, proceedings. In effect, the defendant is informed that the plea does not constitute an admission that may be used in civil immigration proceedings. If the plea is so used, in contradiction to the representation on which the plea was entered, the defendant can move to vacate the criminal conviction on the grounds that the plea was involuntary since it was based on a material misrepresentation as to its effects. In INS v. St. Cyr, 553 U.S. 289, 321-322 (2001), the Supreme Court acknowledged that a plea bargain involves benefits to the defendant, and held that Congress would not be presumed to have intended to deprive the defendant of a benefit (there, eligibility for INA 212(c) relief), on which s/he was entitled to rely at the time the plea was entered. It is fundamental that "a plea that is involuntary, unintelligent, or uninformed is an invalid plea." United States v. Garcia, 401 F.3d 1008 (9th Cir. 2005); citing, Brady v. United States, 397 U.S. 742, 748 (1969); see also, Fontaine v. United States, 411 U.S. 213 (1973); Boykin v. Alabama, 395 U.S. 238 (1969); McCarthy v. United States, 394 U.S. 459, 464-67 (1969). Thus a guilty plea that is obtained through "coercion, terror, inducements, [or] subtle or blatant threats" is involuntary and offensive to due process. Boykin, 395 U.S. at 243 [fn. omitted]; Machibroda v. United States, 368 U.S. 487 (1962); Sanchez v. United States, 50 F.3d 1448, 1454 (9th Cir. 1995). Even if a plea is entered with full knowledge of its direct consequences, it cannot stand if "induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutors business . . . . " Brady v. United States, 397 U.S. at 755 (1969) [citation omitted]. It is established in federal law that the immigration effect of a guilty plea is a "collateral" and not a "direct" consequence of the plea. United States v. Russell, 686 F.2d 35, 38-39 (D.C. Cir. 1982), and cases cited therein. Thus defense counsels failure to advise the defendant that he or she will be deported is not "ineffective assistance of counsel," and the trial courts failure to do so does not render a plea involuntary. United States v. Fry, 322 F.3d 1198, 1200 (9th Cir. 2003); United States v. Gonzalez, 202 F.3d 20, 25-28 (1st Cir. 2000). Yet, as the quoted passage in Brady suggests, and as the federal courts have consistently held over the last three decades, this distinction between "direct" and "collateral" consequences loses all significance when the defendants plea results from affirmative misadvice about its immigration or other effects. See, e.g., United States v. Del Rosario, 902 F.2d 55, 59 (D.C. Cir. 1990); United States v. George, 869 F.2d 333, 337 (7th Cir. 1989); United States v. Sanclemente-Bejarano, 861 F.2d 206, 211 (9th Cir. 1988); Carter v. McCarthy, 806 F.2d 1373, 1376 (9th Cir. 1986), cert. denied, 484 U.S. 870, (1987); United States v. Campbell, 778 F.2d 764, 768-769 (11th Cir. 1985); Downs-Morgan v. United States, 765 F.2d 1534, 1541 (11th Cir. 1985); Strader v. Garrison, 611 F.2d 61, 64 (4th Cir. 1979); United States v. Santelises, 509 F.2d 703, 703-704 (2d Cir. 1975); United States v. Briscoe, 432 F.2d 1351, 1353-1354 (D.C. Cir. 1970); United States v. Khalaf, 116 F.Supp.2d 210 (D. Mass. 1999); United States v. Corona- Maldonado, 46 F.Supp.2d 1171, 1173 (D. Kan 1999); United States v. Mora-Gomez, 875 F. Supp. 1208, 1212 (E.D. Va. 1995); United States v. Nagaro-Garbin, 653 F.Supp. 586, 590 (E.D. Mich 1987), affd, 831 F.2d 296 (6th Cir. 1987); see also, Holmes v. United States, 876 F.2d 1545, 1549, n.5 (11th Cir., 1989), and cases cited therein [discussing the effect of misinformation regarding the "collateral consequence" of parole eligibility on the voluntariness of a plea]. As those and other cases demonstrate, a plea that results from actual misinformation provided to the defendant about its effects is not knowing and voluntary, and cannot be given force.      Applying these principles, the federal courts have consistently voided guilty pleas entered - as this one was - on the basis of affirmative misadvice regarding considerations of consequence to the defendant. For example, in United States v. Toothman, 137 F.3d 1393 (9th Cir. 1998), the Ninth Circuit held that a plea induced by material misinformation from the prosecution, court, and defense counsel was involuntary. During his plea hearing, Mr. Toothman was advised by his counsel that the sentencing guidelines would fix his sentence at somewhere between 10 to 16 months, and both the governments attorney and the district judge confirmed that defendants understanding. Id. at 1395-97. The subsequent pre-sentence report, however, recommended 199 months. Id. at 1397. After the receipt of the pre-sentence report, the defendant moved to withdraw his guilty plea; however, the district court denied his motion and sentenced him to 109 months. Id. at 1397-98.      The Ninth Circuit determined that the defendant had been misinformed by the court, government counsel and his own counsel, and held that "[b]ecause of this misinformation, we do not believe Toothman was equipped intelligently to accept the plea offer made to him." Id. at 1400; quoting, United States v. Watley, 987 F.2d 841, 842 (D.C. Cir. 1993). The Court of Appeal accordingly found that the plea was involuntary. Id. at 1401.      Thanks to Don Chairez for the suggestion for this argument.

POST CON RELIEF " PADILLA " RETROACTIVITY
Griffith v. Kentucky, 479 U.S. 314, 321 (1987) ("failure to apply a newly declared constitutional rule to criminal cases pending on direct review violates basic norms of constitutional adjudication . . . [so] a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final," even where "the new rule constitutes a 'clear break' with the past.".)

POST-CON - GROUNDS - FAILURE TO ADVISE POST-CON - DEPORTATION AS A COLLATERAL CONSEQUENCE

POST-CON - GROUNDS - FAILURE TO ADVISE POST-CON - DEPORTATION AS A COLLATERAL CONSEQUENCE
Sial v. State, 862 N.E.2d 702 (Ind. App. Mar. 16, 2007) ("to succeed as a post-conviction petitioner under these circumstances, Sial is required to establish special circumstances or specific facts showing that if his attorney had properly advised him of the penal consequences of a guilty plea-here, deportation-there is a reasonable probability that he would have chosen to proceed to trial.") (emphasis added)

First Circuit

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " FAILURE TO OFFER ACCURATE IMMIGRATION ADVICE -- PADILLA " MASSACHUSETTS
Commonwealth v. Lavrinenko, 473 Mass. 4238 N.E.3d 278 (Oct. 5, 2015) (defense counsel must make a reasonable inquiry into the defendants immigration status, even if defendant does not initially raise the issue; prejudice may be established through a totality of the circumstances examination of immigration consequences of conviction, especially if defendant is a refugee or asylee).

ARTICLE, POST CON RELIEF " FIRST CIRCUIT " MASSACHUSETTS " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " FAILURE TO DELIVER ACCURATE ADVICE ON IMMIGRATION CONSEQUENCES OF PLEA
The Padilla case overrules U.S. v. Gonzalez, 202 F.3d 20, 25 (1st Cir. 2000). This First Circuit decision held that immigration consequences were collateral to a criminal conviction and, therefore, a guilty plea could not be withdrawn due to failure to warn the defendant about immigration consequences of his plea. See Padilla, 2010 U.S. LEXIS at*16, n. 9. Padilla also overrules Commonwealth v. Fraire, 55 Mass. App. Ct. 916 (2002), and Commonwealth v. Monteiro, 56 Mass. App. Ct. 913 (2002), which rejected motions to vacate based on counsels failure to advise of the immigration consequences of the pleas. These cases applied the Sixth Amendment to claims of ineffective assistance of counsel, as analyzed by Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), and found that immigration consequences were collateral; thus, counsel did not have a duty to advise the defendants of such consequences. Padilla also impacts the questioning by judges during plea colloquies. Since counsel is now constitutionally mandated to advise clients of immigration consequences prior to pleading guilty, judges should ask defendants during plea colloquies whether counsel adequately explained the immigration consequences of pleading guilty. Thanks to the Immigration Impact Unit, Mass. State Public Defender

REMOVAL PROCEEDINGS"CONVICTION"IMMIGRATION COURT MAY NOT ENTERTAIN PADILLA CLAIM
Matos-Santana v. Holder, 660 F.3d 91 (1st Cir. Nov. 2, 2011) (affirming BIA denial of motion to reopen removal proceeding as untimely; respondent must first attack the legal validity of a predicate conviction in the court in which the conviction occurred, and may not raise a claim that a conviction is legally invalid before the immigration courts without first doing so).

Lower Courts of First Circuit

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " AFFIRMATIVE MISADVICE
Commonwealth v. DeJesus, ___ Mass. ___, ___ N.E.2d ___ 2014 Mass. LEXIS 389, *14 & n.7 (Mass. S.Jud.Ct. 2014) (counsel rendered prejudicial ineffective assistance, despite having told defendant that deportation was a possibility: Such advice does not convey what was the case here: that all of the conditions necessary for removal would be met by the defendant's guilty plea, and that, under Federal law, there would be virtually no avenue for discretionary relief once the defendant pleaded guilty and that fact came to the attention of Federal authorities. There is a significant difference, for example, in a lawyers advice to a client that the client faces five years of incarceration on a charge, as compared to advice that the conviction will result in a five-year mandatory minimum prison sentence.). Note: The Court clearly explained why eligibility for deportation is inadequate language that fails to convey the inevitability of removal for those pleading guilty to aggravated felonies, and the foreclosure of relief resulting from such a plea. The Court wrote that merely [t]elling the defendant that he was eligible for deportation, and that he would face deportation, was not adequate advice because it did not convey what is clearly stated in Federal law. Advice that one is eligible for deportation conveys that the law requires additional conditions to be met before an individual could be removed and allows for the exercise of discretion in determining whether these conditions were met. Such advice does not convey what was the case here: that all of the conditions necessary for removal would be met by the defendants guilty plea, and that, under Federal law, there would be virtually no avenue for discretionary relief once the defendant pleaded guilty and that fact came to the attention of Federal authorities. Further, pleading guilty to an aggravated felony, as the Massachusetts SJC has now recognized, is not the first step in becoming eligible for removal, but rather, in and of itself, satisfies all the conditions necessary for removal. For immigrant criminal defendants who receive inadequate legal advice and plead guilty to such a charge, removal is not a matter of if, and only a matter of when. Asma Khalid, Defense Attorneys Must Give Clear Advice On Possible Deportations, SJC Rules (May 19, 2014). Thanks to crimmigration.com.

POST CON RELIEF " GROUNDS " INEFECTIVE ASSISTANCE OF COUNSEL " FAILURE TO ADVISE " FAILURE TO DEFEND " PADILLA APPLIES TO CASES THAT WENT TO TRIAL
Commonwealth v. Marinho, SJC-11058, 2013 Mass. LEXIS 9 (Jan. 14, 2013) (Padilla applies to cases that go to trial: the Padilla duty to advise at plea extends to advising noncitizen clients prior to trial and further includes advocating at sentencing for dispositions that minimize immigration consequences). Thanks to Wendy S. Wayne.

Second Circuit

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL "PREJUDICE
Kovacs v. United States, ___ F.3d ___ (2d Cir. Mar. 3, 2014) (in the context of an affirmative misadvice claim, a noncitizen defendant can demonstrate prejudice if she shows that, but for counsels unprofessional errors, there was a reasonable probability that the petitioner could have negotiated a plea that did not impact immigration status).

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL "RETROACTIVITY OF PADILLA RULE
Kovacs v. U.S., 744 F.3d 44 (2d Cir. Mar. 3, 2014) (Padilla rule on ineffective assistance in advising on deportation consequences of plea by giving affirmative misadvice retroactively applied to petitioner's claim).

POST CON RELIEF " GROUNDS " PADILLA " PREJUDICE
Kovacs v. U.S., 744 F.3d 44 (2d Cir. Mar. 3, 2014) (petitioner demonstrated reasonable probability that he could have negotiated a plea that did not affect his immigration status, and demonstrated reasonable probability that he would have proceeded to trial if he had known the truth).

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " DEFICIENT PERFORMANCE " AFFIRMATIVE MISADVICE OF IMMIGRATION CONSEQUENCES OF PLEA " RETROACTIVITY " THIS AGE-OLD GROUND APPLIES TO ALL CONVICTIONS
Kovacs v. U.S., 744 F.3d 44, 51 (2d Cir. Mar. 3, 2014) (The Government observes that these statements [recognizing affirmative misadvice regarding plea as ineffective assistance of counsel] were dicta, not holdings; but if there had been holdings, there would be no occasion now to consider retroactivity. Couto did nothing more than apply the age-old principle that a lawyer may not affirmatively mislead a client. Chaidez, 133 S.Ct. at 1119 (Sotomayor, J., dissenting). At the time Kovacs' conviction became final, no reasonable jurist could find a defense counsel's affirmative misadvice as to the immigration consequences of a guilty plea to be objectively reasonable.). Note: The courts quotation from Sotomayors dissent in Chaidez is very powerful, referring to affirmative misadvice as an age-old principle. This can be used to argue that Padilla is in effect retroactive as to affirmative misadvice claims to all convictions, whenever they became final.

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " PREJUDICE " SHOWING REQUIRED
Kovacs v. U.S., 744 F.3d 44, 51 (2d Cir. Mar. 3, 2014) (To establish prejudice, a petitioner must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.); citing Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052 (May 14, 1984).

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " PREJUDICE
Kovacs v. U.S., 744 F.3d 44, 51-52 (2d Cir. Mar. 3, 2014) (Prejudice can arise under Frye if a petitioner can demonstrate a reasonable probability [he] would have accepted the earlier plea offer had [he] been afforded effective assistance of counsel. Id. at 1409. In addition, a petitioner must show a reasonable probability that the end result of the criminal process would have been more favorable by reason of a plea to a lesser charge or a sentence of less prison time. Id.); citing Missouri v. Frye, ___ U.S. ___ 132 S.Ct. 1399, 1409, 182 L.Ed.2d 379 (2012).

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " AFFIRMATIVE MISADVICE " PREJUDICE
Kovacs v. U.S., 744 F.3d 44, 52 (2d Cir. Mar. 3, 2014) (We conclude that a defense lawyer's incorrect advice about the immigration consequences of a plea is prejudicial if it is shown that, but for counsel's unprofessional errors, there was a reasonable probability that the petitioner could have negotiated a plea that did not impact immigration status or that he would have litigated an available defense. [Footnote omitted.] See United States v. Kwan, 407 F.3d 1005, 1017"18 (9th Cir.2005) (Kwan could have gone to trial or renegotiated his plea agreement to avoid deportation.). The petitioner must clearly demonstrate that he placed particular emphasis on [immigration consequences] in deciding whether or not to plead guilty. Id. at 1017 (internal quotation marks omitted).); also citing Sasonov v. United States, 575 F.Supp.2d 626, 639 (D.N.J.2008) (immigration consequences may have been enough to ... have allowed [petitioner] to negotiate a more favorable plea agreement with the Government.); United States v. Shaw, No. Civ.A. 03"6759, 2004 WL 1858336, at *11 (E.D.Pa.2004) (Defendant could have negotiated with the government in such a way as to produce a sentence that would not have triggered the INA mandatory removal provisions.).

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " AFFIRMATIVE MISADVICE " PREJUDICE
Kovacs v. U.S., 744 F.3d 44, 52 (2d Cir. Mar. 3, 2014) (petitioner showed reasonable probability he would have litigated an available statute of limitations defense if he had been unable to negotiate an immigration-neutral disposition, which was a sufficient showing of prejudice from counsels ineffective assistance in affirmatively misadvising him of the adverse immigration consequences of his plea). The court stated: Alternatively, Kovacs demonstrates prejudice under the standards set forth in Hill. Kovacs' petition alleges he would have litigated a meritorious statute of limitations defense. When a petitioner claims that he would have pursued an affirmative defense but for his lawyer's erroneous advice, the resolution of the prejudice inquiry will depend largely on whether the affirmative defense likely would have succeeded at trial. FN5 Hill, 474 U.S. at 59, 106 S.Ct. 366. At sentencing, Kovacs requested a downward departure for extraordinary acceptance of responsibility on the basis that he waived this potential meritorious defense, and the district court granted it. The request itself demonstrates Kovacs' awareness of the defense prior to the plea becoming final. See Fed.R.Crim.P. 11(d)(2). More importantly, the district court's grant of Kovacs' request in the course of a conscientious and searching sentencing process implicitly acknowledged that the defense had weight. As a result, Kovacs has shown a reasonable probability that he would have proceeded to trial. (Id. at 53.)

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " AFFIRMATIVE MISADVICE
Chhabra v. United States, __ F.3d __ (2d Cir. Jun. 20, 2013) (federal writ of error coram nobis to vacate conviction on the basis of ineffective assistance of counsel was untimely, and defendant did not establish prejudice, where defendant consulted with an immigration attorney on advice of defense counsel after the plea but before sentencing, and did not thereafter move to withdraw the plea).

Lower Courts of Second Circuit

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " CONNECTICUT " PADILLA HELD NOT RETROACTIVE
Thiersaint v. Commissioner of Correction, ___ Conn. ___ (Conn. Apr. 14, 2015) (Padilla Padilla v. Kentucky, 559 U.S. 356 (2010), insofar as it finds a failure to advise concerning immigration consequences of a plea to be ineffective assistance of counsel, does not apply retroactively to state convictions that became final prior to the date Padilla was decided).

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " FAILURE TO GIVE ACCURATE IMMIGRATION ADVICE " NEW YORK " PADILLA CLAIM
People v. Picca, 97 A.D.3d 170, 947 N.Y.2d 120, (N.Y.A.D. 2 Dept. Jun. 6, 2012) (counsel rendered ineffective assistance of counsel when he failed to advise the defendant that he would be subject to removal from the United States pursuant to federal immigration statutes as a consequence of his plea of guilty, and sufficiently alleged that a decision to reject the Peoples plea offer would have been rational, and, thus, that the trial court erred in failing to conduct a hearing on the defendants motion).

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " FAILURE TO GIVE CORRECT IMMIGRATION ADVICE " PREJUDICE
People v. Picca, 97 A.D.3d 170, 947 N.Y.2d 120, (N.Y.A.D. 2 Dept. Jun. 6, 2012) (no prejudice existed in Padilla claim where individual circumstances showed that the defendant had previously been convicted of a removable offense, the evidence against him was strong with respect to the instant offense, and the plea bargain he received was favorable).

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " PADILLA " RETROACTIVITY
People v. Picca, 97 A.D.3d 170, 947 N.Y.2d 120, (N.Y.A.D. 2 Dept. Jun. 6, 2012) (the defendant is entitled to application of Padilla because his direct appeal was pending at the time the decision in that case was rendered); see Griffith v. Kentucky, 479 U.S. 314, 328 (1987); People v. Hardy, 4 NY3d 192, 197 (2005).

POST CON RELIEF - GROUNDS - INEFFECTIVE ASSISTANCE - AFFIRMATIVE MISADVICE
People v. Michael, 2007 NY Slip Op 27220; 16 Misc. 3d 84; 2007 N.Y. Misc. LEXIS 3814 (May 22, 2007)("Defendant, a native of Pakistan and a lawful permanent resident of the United States, alleged that he entered his guilty plea to sexual abuse in the second degree (Penal Law 130.60 [2]), a misdemeanor, in reliance upon his trial counsel's misrepresentations that the United States Government usually does not deport persons convicted of misdemeanors and that because defendant had been granted "asylum," he would "not have a problem" with immigration authorities. The People do not dispute that the advice allegedly given to defendant was materially inaccurate in that defendant faces mandatory deportation upon a conviction of an offense involving the sexual abuse of a minor, an "aggravated felony" under Federal deportation law, even though classified a misdemeanor under New York State law (Immigration and Nationality Act 1101 [a] [43] [A]; 237 [a] [2] [A] [iii]; United States v Couto, 311 F.3d 179, [*2] 184 [2d Cir 2002]; Zhang v United States, 401 F. Supp. 2d 233, 241-242 [ED NY 2005]; see People v McKenzie, 4 AD3d 437, 439, 771 N.Y.S.2d 551 [2004]).").

POST-CON - INEFFECTIVE ASSISTANCE OF COUNSEL - AFFIRMATIVE MISADVICE
People v. Michael, 842 N.Y.S.2d 159 (May 22, 2007) ("The People do not dispute that the advice allegedly given to defendant was materially inaccurate in that defendant faces mandatory deportation upon a conviction of an offense involving the sexual abuse of a minor, an "aggravated felony" under Federal deportation law, even though classified a misdemeanor under New York State law").

POST CON RELIEF - INEFFECTIVE ASSISTANCE - IMMIGRATION CONSEQUENCES - CONNECTICUT
State v. Aquino, ___ Conn. ___ (Aug. 8, 2006) (claim that criminal defense lawyers obligated to determine client's immigration status and advise of immigration consequences of criminal case dismissed as moot because record does not reflect whether client was deported for aggravated felony or illegal presence; vacating adverse Court of Appeals decision).

POST CON - FEDERAL - GROUNDS - INVOLUNTARY PLEA WHERE DEFENDANT TOLD ONLY CONVICTION "COULD" RESULT IN DEPORTATION WHERE IT WAS VIRTUALLY CERTAIN TO DO SO
Zhang v. United States, ___ F.Supp.2d ___, 2005 WL 3086840 2005 U.S. Dist. LEXIS 28404 (E.D. N.Y. Nov. 18, 2005) (vacating conviction through granting motion to vacate sentence pursuant to 28 U.S.C. 2255 on involuntary plea and ineffective counsel grounds for misadvice concerning immigration consequences where defendant was informed only that the conviction "could result in your deportation," where it was certain to do so).

POST CON RELIEF - GROUNDS - INEFFECTIVE ASSISTANCE OF COUNSEL - FAILURE TO ADVISE OF IMMIGRATION CONSEQUENCES - GENERAL RULE DOES NOT CONSTITUTE INEFFECTIVE ASSISTANCE OF COUNSEL
State v. Aquino, ___ Conn. ___, 2005 Conn. App. LEXIS 226 (Conn. App. June 7, 2005) ("Our conclusion today is in agreement with the majority of jurisdictions, both federal and state, that have considered the issue of whether the failure to advise a client of the immigration consequences of a guilty plea constitutes ineffective assistance of counsel. See id., [United States v. Gonzalez, 202 F.3d 20, 24 (1st Cir. 2000)] 25; United States v. Banda, 1 F.3d 354, 356 (5th Cir. 1993); Varela v. Kaiser, 976 F.2d 1357, 1358 (10th Cir. 1992), cert. denied, 507 U.S. 1039, 113 S. Ct. 1869, 123 L. Ed. 2d 489 (1993); United States v. Del Rosario, 284 U.S. App. D.C. 90, 902 F.2d 55, 58-59 (D.C. Cir.), cert. denied, 498 U.S. 942, 111 S. Ct. 352, 112 L. Ed. 2d 316 (1990); Santos v. Kolb, 880 F.2d 941, 944-45 (7th Cir. 1989), cert. denied, 493 U.S. 1059, 110 S. Ct. 873, 107 L. Ed. 2d 956 (1990); United States v. George, supra, 869 F.2d 337-38; United States v. DeFreitas, 865 F.2d 80, 82 (4th Cir. 1989); United States v. Yearwood, supra, 863 F.2d 7-8; United States v. Campbell , supra, 778 F.2d 768-69; United States v. Gavilan, 761 F.2d 226, 228-29 (5th Cir. 1985); United States v. Santelises, 509 F.2d 703, 704 (2d Cir. 1975); Government of Virgin Islands v. Pamphile, 604 F. Supp. 753, 756-57, 21 V.I. 348 (D.V.I. 1985); Oyekoya v. State, 558 So. 2d 990, 990-91 (Ala. Crim. App. 1989); Tafoya v. State, 500 P.2d 247, 252 (Alaska 1972), cert. denied, 410 U.S. 945, 93 S. Ct. 1389, 35 L. Ed. 2d 611 (1973); State v. Rosas, 183 Ariz. 421, 423, 904 P.2d 1245 (Ariz. App. 1995); Matos v. United States, 631 A.2d 28, 31-32 (D.C. 1993); State v. Ginebra, 511 So. 2d 960, 962 (Fla. 1987); People v. Huante , 143 Ill. 2d 61, 73-74, 571 N.E.2d 736, 156 Ill. Dec. 756 (1991); Mott v. State , 407 N.W.2d 581, 583 (Iowa 1987); Daley v. State, 61 Md. App. 486, 490, 487 A.2d 320 (1985); Commonwealth v. Fraire, 55 Mass. App. 916, 917-18, 774 N.E.2d 677 (2002); Alanis v. State, 583 N.W.2d 573, 579 (Minn. 1998); State v. Chung, supra, 210 N.J. Super. 435; People v. Boodhoo, 191 App. Div. 2d 448, 449, 593 N.Y.S.2d 882 (1993); People v. Dor, 132 Misc. 2d 568, 572, 505 N.Y.S.2d 317 (1986); State v. Dalman, 520 N.W.2d 860, 863-64 (N.D. 1994); Commonwealth v. Frometa, 520 Pa. 552, 556, 555 A.2d 92 (1989); State v. Figueroa, 639 A.2d 495, 501 (R.I. 1994); State v. McFadden, 884 P.2d 1303, 1305 (Utah App. 1994), cert. denied, 892 P.2d 13 (Utah 1995); State v. Holley, 75 Wn. App. 191, 198, 876 P.2d 973 (1994), on appeal after remand, 86 Wn. App. 1100 (1997), review denied, 133 Wn. 2d 1032, 950 P.2d 476 (1998); State v. Santos, 136 Wis. 2d 528, 532, 401 N.W.2d 856 (Wis. App. 1987).").

POST CON RELIEF - GROUNDS - INEFFECTIVE ASSISTANCE OF COUNSEL - FAILURE TO ADVISE OF ACTUAL IMMIGRATION CONSEQUENCES - CONNECTICUT
State v. Aquino, ___ Conn. ___, 2005 Conn. App. LEXIS 226 (Conn. App. June 7, 2005) (affirming denial of motion to withdraw the plea based on a claim that ineffective assistance of counsel meant the plea was not knowingly and voluntarily entered, since counsel's failure to advise that deportation consequence was mandatory, not merely possible, did not constitute ineffective assistance of counsel because counsel is not required to inform the defendant of collateral consequences, as opposed to direct consequences, of the plea).

Third Circuit

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " FAILURE TO GIVE ACCURATE IMMIGRATION ADVICE
United States v. Fazio, 795 F.3d 421 (3d Cir. Aug. 4, 2015) (defendant could not establish ineffective assistance of counsel for failure to warn of immigration consequences where warning of potential of immigration consequences by District Court in plea colloquy and standard language in plea agreement cured any possible error counsel may have made). Note: The district court asked the defendant Do you understand that no one, including your attorney or me or the government's attorney can predict to a certainty the effect of your conviction on your immigration status? The plea agreement included similar may cause deportation, language, and defense counsel admitted did no legal research at all, while later retained immigration counsel identified deportation as a certainty. This claim was defeated at the district court level, due to the possibility of someone in a similar situation getting an S-Visa or Congress changing the law. This case seems to almost entirely ignore the holding (or underlying facts of) Padilla, even though citing it once or twice.

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " RETROACTIVITY
United States v. Orocio, 645 F.3d 630, 2011 WL 2557232 (3d Cir. Jun. 29, 2011) (We therefore hold that, because Padilla followed directly from Strickland and long-established professional norms, it is an "old rule" for Teague purposes and is retroactively applicable on collateral review. . . . Because Mr. Padilla's attorney was found to be deficient under the prevailing professional norms of 2002, it is not unreasonable to apply those same norms to Mr. Orocio's attorney in 2004.).

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " PADILLA " PREJUDICE
United States v. Orocio, 645 F.3d 630 (3d Cir. Jun. 29, 2011) (Mr. Orocio argues two forms of prejudice from his attorney's failure to inform him of possible immigration consequences. First, he argues that prejudice should be presumed in his case because the failure to advise of immigration consequences is "easy to identify and prevent." Second, he argues that he suffered actual prejudice because he would have chosen to go to trial instead of agreeing to a plea that subjected him to automatic deportation. We reject his first contention, but we agree with his second. * * * [W]e hold that, on the facts as alleged in his coram nobis petition, a decision by Mr. Orocio "to reject the plea bargain would have been rational under the circumstances."); citing Padilla v. Kentucky, 559 U.S. ___, 130 S.Ct. 1473, 1485, 176 L.Ed.2d 284 (March 31, 2010); accord State v. Sandoval, 249 P.3d 1015, 1021-22 (Wash. 2011) (finding prejudice to lawful permanent resident defendant on similar facts); distinguishing as no longer good law, United States v. Nino, 878 F.2d 101, 105 (3d Cir. 1989) (requiring defendant to show that he would have been acquitted at trial in order to show prejudice).

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " CASES HOLDING PADILLA IS RETROACTIVE
United States v. Orocio, 645 F.3d 630, No. 10-1231, 2011 WL 2557232, at *7 (3d. Cir. June 29, 2011); Amer v. United States, No. 1:06CR118-GHD, 2011 WL 2160553, at *3 (N.D. Miss. May 31, 2011); United States v. Chavarria, Nos. 2:10-CV-191 JVB, 2:08- CR-192, 2011 WL 1336565, at *2-3 (N.D. Ind. Apr. 7, 2011); Marroquin v. United States, No. M-10-156, 2011 WL 488985, at *6 (S.D. Tex. Feb. 4, 2011); United States v. Zhong Lin, No. 3:07-CR-44-H, 2011 WL 197206, at *2-3 (W.D. Ky. Jan. 20, 2011); Luna v. United States, No. 10CV1659 JLS, 2010 WL 4868062, at *3-4 (S.D. Cal. Nov. 23, 2010); Martin v. United States, No. 09-1387, 2010 WL 3463949, at *3 (C.D. Ill. Aug. 25, 2010); United States v. Chaidez, 730 F. Supp. 2d 896, 904 (N.D. Ill. 2010); Al Kokabani v. United States, Nos. 5:06-CR-207-FL, 5:08-CV-177-FL, 2010 WL 3941836, at *6 (E.D.N.C. July 30, 2010); United States v. Hubenig, No. 6:03-mj-040, 2010 WL 2650625, at *8 (E.D. Cal. July 1, 2010); Commonwealth v. Clarke, 949 N.E.2d 892, 904, (Mass. 2011); People v. Bennett, 903 N.Y.S.2d 696, 700 (N.Y. Crim. Ct. 2010); Constanza v. State, unpublished, (Aug. 15, 2011) (Hennepin County District Court File No. 27-CR-09-45135) (Because we held in Campos v. State, 798 N.W.2d 565, 568-69 (Minn. App. 2011), review granted (Minn. July 19, 2011), that the U.S. Supreme Court's decision in Padilla v. Kentucky, 130 S. Ct. 1473 (2010), applies retroactively to similarly situated post-conviction petitioners, we reverse and remand.); following Campos v. State, 798 N.W.2d 565, 568-69 (Minn. App. 2011), review granted (Minn. July 19, 2011).

POST CON RELIEF - GROUNDS - FEDERAL - INEFFECTIVE ASSISTANCE - AFFIRMATIVE MISADVICE
Sasonov v. U.S., 575 F. Supp. 2d 626 (D. N.J., Sept. 9, 2008) ("Mr. Racer's affirmative misrepresentation of the possible deportation consequences of Petitioner's guilty plea was objectively unreasonable. ... Petitioner has proved sufficiently that he was prejudiced by Mr. Racer's ineffectiveness. ... For the foregoing reasons, Nathan Sasonov's Petition for Writ of Habeas Corpus, pursuant to 28 U.S.C. 2255, is granted, and Petitioner's guilty plea is vacated.")

Lower Courts of Third Circuit

POST CON RELIEF - GROUNDS - INEFFECTIVE ASSISTANCE OF COUNSEL - AFFIRMATIVE MISADVICE - PADILLA ISSUE
State v. Nunez-Valdez, 200 N.J. 129 (Jul.27, 2009) (defense attorney can render ineffective assistance of counsel by providing false or inaccurate information on the impact that a guilty plea will have on the client's immigration status).

Fourth Circuit

POST CON RELIEF " VIRGINIA " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " FAILURE TO GIVE CORRECT IMMIGRATION ADVICE " PREJUDICE STANDARD " VIRGINIA " STANDARD APPLIES REGARDLESS OF STRENGTH OF CRIMINAL CASE
Zemene v. Clarke, ___ Va. ___, No. 140719, slip op. (Va. 2015) (immigrants are prejudiced when their criminal defense attorneys fail to provide advice that would objectively lead them to turn down a plea offer, whether or not the evidence of guilt is strong).

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL
Zemene v. Clarke, ___ Va. ___, No. 140719, slip op. (Va. 2015) (immigrants received ineffective assistance of counsel after the client told the attorney that he was not a United States citizen, when the attorney failed to investigate the potential immigration consequences of a conviction, feiled to raise the issue in plea negotiations with the prosecutor, and failed to discuss this with the client).

POST CON RELIEF " FEDERAL " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL
Akinsade v. United States, 686 F.3d 248 (4th Cir. July 25, 2012) (criminal defense counsel misadvised defendant/petitioner even though the Second Circuit held in Akinsade v. Holder, 678 F.3d 138, 143 (2d Cir. 2012) that defendant/petitioner was not deportable in the petition for review of his removal order).

POST CON RELIEF " FEDERAL " CORAM NOBIS " STANDARD OF REVIEW OF DENIAL AS ABUSE OF DISCRETION
Akinsade v. United States, 686 F.3d 248 (4th Cir. July 25, 2012) (the courts immigration advisal to defendant at plea that the plea "could lead to his deportation" did not prevent a finding of prejudice from counsels failure to provide correct immigration advice).

Lower Courts of Fourth Circuit

POST-CONVICTION " GROUNDS " INEFFECTIVE ASSISTANCE " PADILLA " POST PLEA MISREPRESENTATIONS
United States v. Newman, __ F.3d __ (D.C. Cir. Nov. 17, 2015) (affirmative misrepresentations made by appellate counsel after appellant had pleaded guilty could /constitute ineffective assistance).

POST CON RELIEF - VIRGINIA - CORAM VOBIS - SENTENCE REDUCTION GRANTED FOR IMMIGRATION PURPOSES AFTER CUSTODY EXPIRED SINCE DEFENDANT HAD NO REASON TO SUSPECT THE PROBLEM EARLIER - INEFFECTIVE ASSISTANCE OF COUNSEL - AFFIRMATIVE MISADVICE
Commonwealth v. Mohamed, 71 Va. Cir. 383, 2006 WL 2388632 (Aug. 18, 2006) (granting writ of coram vobis, reducing sentence from two years to 360 days, thereby entitling petitioner to discretionary relief in the immigration courts, after custody had expired, since petitioner had no reason to suspect the advice was faulty any earlier than when he was placed into removal proceedings upon returning to the United States).

Fifth Circuit

POST CON RELIEF " TEXAS " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " FAILURE TO GIVE ACCURATE IMMIGRATION ADVICE
Ex Parte Torres, ___ Tex. Ct. Crim. App. ___, ___, 2014 WL 1168929 (Tex. Ct. App. March 21, 2014) (Merely stating that removal proceedings could ensue after a guilty plea to an aggravated felony or drug offense is ineffective in mandatory removal cases; counsel must clearly state that pleading to the offense will result in removal.).

POST CON RELIEF " GROUNDS " KNOWING AND VOLUNTARY PLEA " INEFFECTIVE ASSISTANCE OF COUNSEL " FAILURE TO WARN OF ACTUAL IMMIGRATION CONSEQUENCES
United States v. Urias-Marrufo, 744 F.3d 361, 366 (5th Cir. Feb. 28, 2014) (To enter a knowing and voluntary guilty plea, the defendant must have a full understanding of what the plea connotes and of its consequence. (Footnote omitted.) The defendant must have notice of the nature of the charges against her, she must understand the consequences of her plea, and must understand the nature of the constitutional protections she is waiving. (Footnote omitted.) For a guilty plea to be voluntary, it must not be the product of actual or threatened physical harm, or ... mental coercion overbearing the will of the defendant or of state-induced emotions so intense that the defendant was rendered unable to weigh rationally his options with the help of counsel. (Footnote omitted.) The crux of Urias's argument is that she did not enter her guilty plea knowingly because she had ineffective assistance of counsel and was not sufficiently informed of the consequences of her plea. Thus, in Urias's view, she should have been allowed to withdraw her plea on direct appeal rather than wait until a collateral attack to do so, and the district court erred in not addressing it.) (emphasis in original).

POST CON RELIEF " GROUNDS " PADILLA
United States v. Urias-Marrufo, 744 F.3d 361, 369 (5th Cir. Feb. 28, 2014) (It is counsel's duty, not the court's, to warn of certain immigration consequences, and counsel's failure cannot be saved by a plea colloquy. Thus, it is irrelevant that the magistrate judge asked Urias whether she understood that there might be immigration consequences and that she and her attorney had discussed the possible adverse immigration consequences of pleading guilty.); citing Marroquin v. United States, 480 Fed.Appx. 294, 299 (5th Cir. 2012) (Dennis, J., concurring) ([T]he judicial plea colloquy is no remedy for counsel's deficient performance in fulfilling these obligations.).

POST CON RELIEF " GROUNDS " KNOWING AND VOLUNTARY PLEA " INEFFECTIVE ASSISTANCE OF COUNSEL " FAILURE TO WARN OF ACTUAL IMMIGRATION CONSEQUENCES
United States v. Urias-Marrufo, 744 F.3d 361, 366 (5th Cir. Feb. 28, 2014) (To enter a knowing and voluntary guilty plea, the defendant must have a full understanding of what the plea connotes and of its consequence. (Footnote omitted.) The defendant must have notice of the nature of the charges against her, she must understand the consequences of her plea, and must understand the nature of the constitutional protections she is waiving. (Footnote omitted.) For a guilty plea to be voluntary, it must not be the product of actual or threatened physical harm, or ... mental coercion overbearing the will of the defendant or of state-induced emotions so intense that the defendant was rendered unable to weigh rationally his options with the help of counsel. (Footnote omitted.) The crux of Urias's argument is that she did not enter her guilty plea knowingly because she had ineffective assistance of counsel and was not sufficiently informed of the consequences of her plea. Thus, in Urias's view, she should have been allowed to withdraw her plea on direct appeal rather than wait until a collateral attack to do so, and the district court erred in not addressing it.) (emphasis in original).

POST CON RELIEF " GROUNDS " PADILLA
United States v. Urias-Marrufo, 744 F.3d 361, 369 (5th Cir. Feb. 28, 2014) (It is counsel's duty, not the court's, to warn of certain immigration consequences, and counsel's failure cannot be saved by a plea colloquy. Thus, it is irrelevant that the magistrate judge asked Urias whether she understood that there might be immigration consequences and that she and her attorney had discussed the possible adverse immigration consequences of pleading guilty.); citing Marroquin v. United States, 480 Fed.Appx. 294, 299 (5th Cir. 2012) (Dennis, J., concurring) ([T]he judicial plea colloquy is no remedy for counsel's deficient performance in fulfilling these obligations.).

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " FAILURE TO GIVE ACCURATE IMMIGRATION ADVICE -- PADILLA " RETROACTIVITY " TEXAS
Ex parte Roldan, __ S.W.3d __ (Tex.App. Nov. 19, 2013) (defendants whose convictions became final prior to Padilla v. Kentucky cannot benefit from the holding in that case). Note: Chaidez only held that the failure to advise portion of Padilla was not retroactive, but pointed out that the affirmative misrepresentation portion may be viable before Padilla depending on the law in the particular jurisdiction, since many courts had recognized this affirmative misrepresentation claim well before Padilla. See Practice Advisory on Chaidez at www.nationalimmigrationproject.org.

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " PADILLA " RETROACTIVITY
United States v. Amer, 681 F.3d 211 (5th Cir. May 9, 2012) (Padilla announced a new rule within the meaning of Teague, and therefore does not apply retroactively to convictions that were final before Padilla was decided).

POST CON RELIEF"GROUNDS"INEFFECTIVE ASSISTANCE OF COUNSEL"FAILURE TO CONSULT KURZBANS SOURCEBOOK
United States v. Juarez, 672 F.3d 381 (5th Cir. Feb. 24, 2012) (reversing federal convictions of making a false claim to U.S. citizenship, in violation of 18 U.S.C. 911, and illegal reentry after deportation, in violation of 8 U.S.C. 1326(b)(2), on grounds of ineffective assistance of counsel for failure to investigate the facts, or research the law, concerning defendants derivative citizenship defense to the alienage element of these two offenses, since he failed to consult available research resources, including Kurzbans Immigration Law Sourcebook, which would have shown it to be a plausible defense which reasonably have motivated counsel to recommend against a guilty plea and defendant to decline to enter a guilty plea to these offenses, and thus the plea entered was not based on an informed or competent decision to do so).

POST-CON RELIEF - FEDERAL - GROUNDS - AFFIRMATIVE MISADVICE
Santos-Sanchez v. United States, 548 F.3d 327 (5th Cir. Nov. 6, 2008) (warning that deportation was possible when deportation was, in fact, almost certain did not equal affirmative misadvise).

Lower Courts of Fifth Circuit

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL --PADILLA NOT RETROACTIVE " TEXAS
Ex parte De Los Reyes, No. PD-1457-11, slip op. (Tex. Crim. App. Mar. 20, 2013) (Padilla v. Kentucky, 130 S. Ct. 1473 (2010), does not apply retroactively to convictions that had become final prior to Mar. 31, 2010).

POST CON - GROUNDS - INEFFECTIVE ASSISTANCE - IMMIGRATION CONSEQUENCES
Rosa v. State of Texas, __ S.W.2d __ (Tex Crim. App. Aug. 25, 2005) (ineffective assistance of counsel for affirmatively misadvising noncitizen defendant of immigration consequences of conviction).

Sixth Circuit

POST CON RELIEF"GROUNDS"INEFFECTIVE ASSISTANCE" PADILLA"PREJUDICE
Pilla v. United States, 668 F.3d 368, 373 (6th Cir. Feb. 6, 2012) (defendant was not prejudiced by counsel's inaccurate immigration advice because she faced overwhelming evidence of guilt, had no realistic chance of being acquitted at trial, and would have received a longer sentence plus the same deportation consequences: no rational defendant in Pilla's position would have proceeded to trial in this situation.); see United States v. Johnson, 237 F.3d 751, 755 (6th Cir. Jan. 25, 2001).

Lower Courts of Sixth Circuit

POST CONVICTION RELIEF - OHIO - INEFFECTIVE COUNSEL - IMMIGRATION CONSEQUENCES
State of Ohio v. Creary, __ F.Supp.3d __ (Oh. App. Feb. 26, 2004) (counsel gave affirmative misadvise by advising client to plea guilty on basis that going to trial would result in deportation; court found deportation for aggravated felons to be nearly certain; while court gives considerable deference to lawyer's judgment when advising client about likelihood of outcomes within a range of possibilities, there is no justification for misinforming a client about the state of unambiguous law).

Seventh Circuit

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " FAILURE TO GIVE CORRECT ADVICE ON IMMIGRATION CONSEQUENCES
DeBartolo v. United States, 790 F.3d 775, 778 (7th Cir. Jun. 26, 2015) (noncitizen defendant has shown prejudice since there was reasonable probability that he would have proceeded to trial rather than have pleaded guilty if he had then known the immigration consequences).

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " PADILLA " RETROACTIVITY
Chavarria v. United States, 739 F.3d 360, 362 (7th Cir. Jan. 9, 2014) (rejecting claim of ineffective assistance of counsel, based on affirmative misadvice of adverse immigration consequences of the plea: Chavarria's argument fails, first, because the distinction between affirmative misadvice and non-advice was not a relevant factor in Padilla. Second, the precedent, pre-Padilla, supporting the application of Strickland in this context is insufficient to satisfy Teague v. Lane, 489 U.S. 288, 301, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (holding that to impart retroactivity, a rule must be supported by ample existing precedent).).

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " PADILLA RETROACTIVITY " CERT GRANTED
Chaidez v. Holder, 655 F.3d 684, 688, 693 (7th Cir. 2011) (holding that Padilla does not apply retroactively on collateral review), cert. granted 80 U.S.L.W. 3429 (U.S. Apr. 30, 2012) (No. 11"820) (whether March 31, 2010 decision in Padilla v. Kentucky, 130 S.Ct. 1473 (2010), applies to defendants whose convictions became final before Padilla was decided).

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " FAILURE TO GIVE ACCURATE IMMIGRATION ADVICE AT PLEA " RETROACTIVITY " PADILLA CONTAINED A NEW RULE WHICH DOES NOT APPLY RETROACTIVELY ON COLLATERAL REVIEW
Chaidez v. United States, 655 F.3d 684 (7th Cir. Aug. 23, 2011) (Padilla v. Kentucky announced a new rule of criminal procedure which is not applicable retroactively on collateral review); see United States v. Orocio, 645 F.3d 630 (3d Cir. June 29, 2011) (Padilla simply applied the old Strickland rule, such that it is retroactively applicable on collateral review); United States v. Diaz"Palmerin, 2011 WL 1337326 (N.D.Ill. April 5, 2011) ( Padilla did not announce a new rule); Martin v. United States, 2010 WL 3463949 (C.D.Ill. Aug.25, 2010) (same); United States v. Chavarria, 2011 WL 1336565 (N.D. Ind. April 7, 2011) (same); United States v. Laguna, 2011 WL 1357538 (N.D.Ill. April 11, 2011) (Padilla announced a new rule); United States v. Aceves, 2011 WL 976706, at *3 (D.Hawai'i March 17, 2011) (collecting cases).

POST CON RELIEF - GROUNDS - COURT OR PROSECUTION AFFIRMATIVE MISADVICE CONCERNING COLLATERAL CONSEQUENCE OF PLEA CAN CONSTITUTE GROUNDS TO VACATE CONVICTION
The Seventh Circuit has held that misinformation by the sentencing court regarding the mandatory parole provision in the plea bargain violated due process. See Ferris v. Finkbeiner, 551 F.2d 185 (7th Cir. 1977) (holding defendants due process rights were violated when in the course of making a plea agreement the court misinformed him that he would not have to serve mandatory five-year parole term).

Lower Courts of Eighth Circuit

POST CON RELIEF " PADILLA " MINNESOTA " PADILLA NOT RETROACTIVE
Campos v. State, 816 N.W.2d 480 (Minn. June 20, 2012) (Padilla is a new rule of constitutional criminal procedure, and not applicable to cases that were final at the time post-conviction relief was filed). http://www.mncourts.gov/opinions/sc/current/OPA101395-0620.pdf

Ninth Circuit

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL "FAILURE TO PRESENT MORE FAVORABLE ALTERNATIVE
Crace v. Herzog, ___ F.3d ___, 2015 WL 4773456 (9th Cir. Aug. 14, 2015) (affirming grant of habeas corpus relief where Washington Supreme Court's rejection of petitioners claim under Strickland v. Washington was an unreasonable application of clearly established federal law under the Anti-Terrorism and Effective Death Penalty Act (AEDPA), and petitioner's claim of ineffective assistance of counsel warranted relief, since trial counsel was deficient for failing to request a jury instruction on unlawful display of a weapon, a lesser included offense of second degree assault). The court explained: Rather, [t]he assessment of prejudice should proceed on the assumption that the decisionmaker is reasonably, conscientiously, and impartially applying the standards that govern the decision. Id. The Washington Supreme Court's decisions in Grier and in this case overextended the foregoing principle. That principle forbids a reviewing court from finding prejudice by speculating that, if the defendant is permitted to roll the dice again, the jury might convict on a lesser included offense merely as a means of jury nullification, without regard for whether that verdict is consistent with the evidence. But it does not require a court to presume"as the Washington Supreme Court did"that, because a jury convicted the defendant of a particular offense at trial, the jury could not have convicted the defendant on a lesser included offense based upon evidence that was consistent with the elements of both. To think that a jury, if presented with the option, might have convicted on a lesser included offense is not to suggest that the jury would have ignored its instructions. On the contrary, it would be perfectly consistent with those instructions for the jury to conclude that the evidence presented was a better fit for the lesser included offense. The Washington Supreme Court thus was wrong to assume that, because there was sufficient evidence to support the original verdict, the jury necessarily would have reached the same verdict even if instructed on an additional lesser included offense. As the Supreme Court has recognized in a related context, a jury presented with only two options"convicting on a single charged offense or acquitting the defendant altogether"is likely to resolve its doubts in favor of conviction even if it has reservations about one of the elements of the charged offense, on the thinking that the defendant is plainly guilty of some offense. Keeble v. United States, 412 U.S. 205, 212"13, 93 S.Ct. 1993, 36 L.Ed.2d 844 (1973) (construing the Major Crimes Act of 1885 not to preclude lesser-included-offense instructions, in order to avoid constitutional concerns); see also Hopper v. Evans, 456 U.S. 605, 611, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982). It is therefore perfectly plausible that a jury that convicted on a particular offense at trial did so despite doubts about the proof of that offense"doubts that, with the availability of a third option, could have led it to convict on a lesser included offense. See Keeble, 412 U.S. at 213, 93 S.Ct. 1993. Making this observation does not require us to speculate that the jury would have acted lawless[ly] if instructed on an additional, lesser included offense or to question the validity of the actual verdict. Rather, it merely involves acknowledging that the jury could rationally have found conviction on a lesser included offense to be the verdict best supported by the evidence. See id. (Id. at ___.) This discussion has application when considering whether the defendant suffered prejudice from ineffective assistance of counsel during plea bargaining, where defense counsels deficient performance consisted in failing to present the prosecution with an equivalent alternative disposition that would have avoided adverse immigration consequences. The court may well find prejudice inheres in the loss of the opportunity for the prosecution to conclude that under all of the circumstances of the case, the unpresented alternative represented a better fit, even if the offense of conviction was appropriate.

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " FAILURE TO GIVE ACCURATE IMMIGRATION ADVICE
United States v. Rodriguez-Vega, ___ F.3d ___, 2015 WL 4773519 (9th Cir. Aug. 14, 2015) (defense counsel's failure to inform defendant of the virtual certainty of removal prior to her guilty plea amounted to deficient performance; but for counsel's error, defendant would have negotiated plea bargain not requiring her removal or would have gone to trial; statements that she faced the possibility of removal did not eliminate the prejudice resulting from defense counsel's deficient performance).

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " FAILURE TO GIVE ACCURATE IMMIGRATION ADVICE
Rodriguez-Vega v. Lynch, ___ F.3d ___ (9th Cir. Aug. 14, 2015) (where the immigration statute or controlling case law expressly identifies the crime of conviction as a ground for removal, the deportation consequence is truly clear.; courts immigration warning and plea language cannot cure attorney error; prejudice satisfied by showing that but for counsels error she would negotiated a different plea, or alternatively, gone to trial).

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " FAILURE TO GIVE ACCURATE IMMIGRATION ADVICE " RETROACTIVITY
United States v. Chan, 792 F.3d 1151 (9th Cir. Jul. 9, 2015) (This case requires us to determine the retroactivity of our prior decision in United States v. Kwan, 407 F.3d 1005 (9th Cir. 2005). Because we conclude that Kwan both survives Padilla v. Kentucky, 559 U.S. 356 (2010), and did not establish a new rule of criminal procedure under Teague v. Lane, 489 U.S. 288 (1989), we thus hold that Kwan applies retroactively to Chans case.); distinguishing Chaidez v. United States, 133 S. Ct. 1103 (2013) (Supreme Court concluded that Padilla does not apply retroactively).

POST CON RELIEF " WASHINGTON " SUPREME COURT FINDS PADILLA RETROACTIVE
In re Yung Ching Tsai, ___ Wash. ___, __ P.3d __, 2015 WL 2164187 (May 7, 2015) (Padilla v. Kentucky, 559 U.S. 356 (2010), applies no matter when the conviction was entered; since Padilla was not a new rule of constitutional law it applies retroactively). http://www.courts.wa.gov/opinions/pdf/887705.pdf

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " SENTENCE " FAILURE TO INVESTIGATE OR PRESENT MITIGATION
Stankewitz v. Wong, 698 F.3d 1163 (9th Cir. Oct., __ 2012) (record shows substantial mitigating evidence that could have been presented with little or no risk of further aggravating the negative information the jury already knew of defendant).

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " PREJUDICE " MERE AWARENESS OF POSSIBILITY OF DEPORTATION DOES NOT ESTABLISH WILLINGNESS TO PLEAD GUILTY WITH KNOWLEDGE OF THE CERTAINTY OF DEPORTATION
United States v. Bonilla, ___ F.3d ___ (9th Cir. Mar. 11, 2011) (A criminal defendant who faces almost certain deportation is entitled to know more than that it is possible that a guilty plea could lead to removal; he is entitled to know that it is a virtual certainty. See Padilla, 130 S. Ct. at 1483. There can be little doubt that the district court abused its discretion in concluding that, because Bonilla was willing to enter a plea when he was at least aware of the possibility of deportation, his counsels failure to advise him that he would almost certainly be deported did not constitute a fair and just reason for the withdrawal of his plea. McTiernan, 546 F.3d at 1167.)

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " DEFICIENT PERFORMANCE " COUNSELS FAILURE TO ADVISE THE DEFENDANT OF THE MANDATORY DEPORTATION CONSEQUENCES OF A PLEA WOULD HAVE BEEN IMPROPER EVEN IF DEFENDANT HAD NOT ASKED ABOUT THE IMMIGRATION CONSEQUENCES
United States v. Bonilla, ___ F.3d ___ (9th Cir. Mar. 11, 2011) (Bonilla met this fair and just reason standard for pre-sentence withdrawal of his plea by virtue of his counsels failure to provide advice upon request, and would have done so even had no such request been made. The district courts failure to grant Bonillas motion to withdraw his plea constituted a failure to apply the rule generously and liberally and resulted in an abuse of its discretion.).

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " FAILURE TO WARN DEFENDANT OF MANDATORY DEPORTATION CONSEQUENCES " COUNSELS BELIEF DEFENDANT WAS A US CITIZEN DID NOT EXCUSE FAILURE TO ADVISE
United States v. Bonilla, ___ F.3d ___ (9th Cir. Mar. 11, 2011) (Indeed, Bonillas lawyer later admitted that at the time of the plea hearing she had mistakenly thought that Bonilla was a citizen, which accounted in part for her less than satisfactory performance in failing to advise Bonilla as to the immigration consequences of his plea.).

POST-CON - GROUNDS - AFFIRMATIVE MISADVICE
Rubio v. State, 194 P.3d 1224 (Nev. Oct. 30, 2008) (affirmative misrepresentation of immigration consequences by counsel may provide grounds for attacking the voluntariness of the plea).

POST CON RELIEF - FEDERAL -- GROUNDS - INEFFECTIVE ASSISTANCE OF COUNSEL - AFFIRMATIVE MISADVICE - FAILURE TO ADVISE DEFENDANT WHEN IMMIGRATION CONSEQUENCES CHANGED PRIOR TO JUDGMENT
United States v. Kwan, ___ F.3d ___, 2005 WL 1119652 (9th Cir. May 12, 2005) (defense counsel rendered ineffective assistance of counsel, by correctly advising the defendant prior to entry of plea concerning immigration consequences of disposition of criminal case that deportation was not a serious possibility, but in failing to notify the defendant when, prior to sentence, the law changed and in fact it became a near certainty, where the defendant could have made a motion under F.R.Crim.P. 32(e) to withdraw the plea and attempted to renegotiate the disposition in light of the new legal consequences).

GROUNDS - INEFFECTIVE ASSISTANCE - IMMIGRATION CONSEQUENCES
United States v. Wang, 84 Fed.Appx. 950 (9th Cir. Dec. 29, 2003) (Not selected for publication in the Federal Reporter) (affirmative misadvice of defense counsel that plea to submitting false documents to United States Customs Service, in violation of 18 U.S.C. 542, was ineffective assistance where counsel said immigration consequences were uncertain, but conviction was in fact nearly certain to result in deportation; if defendant not been misled by counsel, reasonable possibility existed that defendant would have gone to trial or plead to lesser offense so as to avoid certain removal as aggravated felon).

Lower Courts of Ninth Circuit

POST-CON - INEFFECTIVE ASSISTANCE OF COUNSEL
State v. Quintero-Morelos, 133 Wn. App. 591 (Jun. 22, 2006) ("The day following sentencing, the judge decided to reduce the sentence by one day, which prevented the defendant's federal deportation, because defense counsel failed at the time of the original sentencing to inform the judge that the defendant was subject to deportation. The question presented is whether the judge had discretionary authority to set aside the judgment on the ground of neglect or carelessness of defense counsel. We conclude that he did and we affirm that exercise of discretion.").

POST CON - IAC - AFFIRMATIVE MISADVICE
Vega-Gonzalez v. Oregon, __ P.3d __, 2006 WL 1100564 (Apr. 27, 2006) (advice of criminal defense counsel that conviction of an aggravated felony "may" trigger deportation is not affirmative misadvice; although conviction of an aggravated felony is very likely to result in deportation, the DHS could choose not to prosecute or the noncitizen could obtain withholding of removal or relief under the convention against torture). Note: the Ninth Circuit, in United States v. Kwan, 407 F.3d 1005 (9th Cir. 2005), held that advice concerning possible deportation was affirmative misadvice, where an aggravated felony conviction required mandatory deportation. Federal circuit court decisions, however, are only persuasive, not binding, in state court.

INEFFECTIVE ASSISTANCE OF COUNSEL -- FALURE TO ADVISE - OREGON
Vega-Gonzalez v. State of Oregon, 191 Or. App. 587 (2004) (where conviction will lead to mandatory deportation, defense counsel required to inform defendant; stating that conviction "may" result in deportation is ineffective assistance of counsel. On July 20, 2004, Oregon Supreme Court granted State's request to review Court of Appeals opinion).

INEFFECTIVE ASSISTANCE OF COUNSEL -- FALURE TO ADVISE - OREGON
Lyons v. Pearce, 298 Or. 554 (1985) (defense counsel has duty to advise defendant of possibility of deportation)

Tenth Circuit

POST CON RELIEF " GROUNDS " PADILLA " EFFECT OF COURTS WARNING OF POSSIBLE IMMIGRATION CONSEQUENCES
State v. Favela, 311 P.3d 1213 (Aug. 8, 2013) (an equivocal warning by the trial court of potential immigration consequences of plea is insufficient to cure counsels deficient representation in failing to advise defendant of the actual consequences and is never, by itself, sufficient to cure the prejudice that results from ineffective assistance of counsel in that regard). The court reasoned: According to our Supreme Court, advice that a defendant could or might be deported is also inadequate, as such advice is incomplete and therefore inaccurate because [s]tating that a person may be subject to deportation implies there is some chance, potentially a good chance, that the person will not be deported. Id. 15 (quoting Gonzalez v. State, 191 Or.App. 587, 83 P.3d 921, 925 (2004)). This Court has since interpreted Paradez as requiring a definite prediction as to the likelihood of deportation based on the crimes to which a defendant intends to plead and the crimes listed in federal law for which a defendant can be deported. Carlos, 2006"NMCA"141, 14, 140 N.M. 688, 147 P.3d 897.

POST CON RELIEF " GROUNDS " PADILLA " PREJUDICE STANDARD
State v. Favela, , 311 P.3d 1213 (Aug. 8, 2013) (Padilla states that to obtain relief on this type of claim, a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances. Padilla, 559 U.S. at 372, 130 S.Ct. at 1485. This rational under the circumstances standard has been heralded as being much broader and allow[ing] for consideration of a different type of risk analysis by a defendant as compared with traditional analyses of prejudice in the context of ineffective assistance of counsel claims. Jenny Roberts, Proving Prejudice, Post"Padilla, 54 How. L.J. 693, 713 (2011).); see United States v. Kwan, 407 F.3d 1005, 1017 (9th Cir. 2005) (determining that the defendant had demonstrated that he was prejudiced by his counsels ineffectiveness where his counsel failed to advise him of the immigration consequences of a plea bargain), abrogated on other grounds by Padilla, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284.

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " RETROACTIVITY OF PADILLA
United States v. Hong, ___ F.3d ___, 2011 WL 3805763 (10th Cir. Aug. 30, 2011) (Padilla v. Kentucky, 130 S. Ct. 1473 (2010), does not apply retroactively: Under Teague, a constitutional rule of criminal procedure applies to all cases on direct and collateral review if it is not a new rule, but rather an old rule applied to new facts. A new rule applies only to cases that still are on direct review, unless one of two exceptions applies. In particular, a new rule applies retroactively on collateral review if (1) it is substantive or (2) it is a watershed rul[e] of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding.); Chaidez v. United States, ___ F.3d ___ (7th Cir. Aug. 23, 2011) (same); but see United States v. Orocio, ___ F.3d ___ (3d Cir. June 29, 2011) (Padilla is an extension of Strickland and so applies retroactively to decisions that were final before Padilla was decided).

Lower Courts of Tenth Circuit

POST CON RELIEF - GROUNDS - INEFFECTIVE COUNSEL - FAILURE TO ADVISE - UTAH POST CON RELIEF - GROUNDS - INEFFECTIVE COUNSEL - AFFIRMATIVE MISADVICE - UTAH
State v. Rojas-Martinez, 125 P.3d 930, 539 Utah Adv. Rep. 58, 2005 UT 86 (Utah Nov 22, 2005) (advising defendant that guilty plea and conviction for sexual battery "might or might not" lead to deportation is not an affirmative misrepresentation, and thus does not constitute ineffective assistance of counsel).

POST CON - NEW MEXICO - INEFFECTIVE COUNSEL - FAILURE TO INVESTIGATE AND ADVISE - AFFIRMATIVE MISADVICE
State v. Paredez, ___ N.M. ___ (Aug. 31, 2004) (New Mexico Supreme Court holds criminal defense attorney has "affirmative duty to determine [the client's] immigration status and provide him with specific advice regarding the impact a guilty plea would have on his immigration status"; both affirmative misadvice and failure to advise can constitute ineffective assistance of counsel).

POST CON - NEW MEXICO CASE CITATION
State v. Paredez, ___ N.M. ___, 2004 N.M. LEXIS 495 (2004) (a criminal defendant's attorney has "an affirmative duty to determine [the client's] immigration status and provide him with specific advice regarding the impact a guilty plea would have on his immigration status.").

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " FAILURE TO ASCERTAIN DEFENDANTS IMMIGRATION STATUS
State v. Paredez, 136 N.M. 533, 540, 101 P.3d 799, 806 (2004) (defense counsel has an affirmative duty to determine a clients immigration status and provide specific advice on impact of a plea on immigration), cited by Padilla v. Kentucky, 130 S.Ct. 1473, 1484 (2010).

POST CON - UTAH - GROUNDS - INEFFECTIVE COUNSEL - FAILURE TO ADVISE NOT IAC BECAUSE IMMIGRATION IS A COLLATERAL CONSEQUIENCE
State v. Rojas-Martinez, 73 P.3d 967 (Utah Ct. App. June 19, 2003) (counsels failure to inform client of deportation consequences of guilty plea, without more, does not fall below objective standard of reasonableness). See also United States v. Couto, 311 F.3d 179, 187 (2nd Cir. 2002).

POST CON - UTAH - GROUNDS -- INEFFECTIVE COUNSEL - AFFIRMATIVE MISADVICE CONSTITUTES INEFFECTIVE ASSISTANCE
State v. Rojas-Martinez, 73 P.3d 967 (Utah Ct. App. June 19, 2003) (Utah requires affirmative misadvise regarding deportation consequences to find ineffective assistance of counsel; court did, however, cite ABA rules requiring counsel to advise defendant of immigration consequences).

POST CON - GROUNDS - INEFFECTIVE COUNSEL - MIGHT V. WILL -- MIGHT OR MIGHT NOT BE DEPORTED IS AFFIRMATIVE MISADVICE FOR AGGRAVATED FELONY
State v. Rojas-Martinez, 73 P.3d 967 (Utah Ct. App. June 19, 2003) (counsels statement that defendant "might or might not" be deported as result of sexual battery conviction was affirmative misadvise since conviction was aggravated felony under immigration law, virtually mandating deportation without relief).

Eleventh Circuit

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " PADILLA RETROACTIVITY
Figuereo-Sanchez v. United States, 678 F.3d 1203 (11th Cir. May 1, 2012) (Padilla does not announce a retroactively applicable new rule of law).

POST CON RELIEF " GROUNDS " PLEA NOT SHOWN TO BE INVOLUNTARY BY DEFENDANTS IGNORANCE OF IMMIGRATION CONSEQUENCES
Garces v. United States AG, 611 F.3d 1337, 1344 n.7 (11th Cir. 2010) ([N]either the Supreme Court nor this Court has specifically held that a defendant's ignorance of immigration consequences renders his guilty plea involuntary.)

Lower Courts of Eleventh Circuit

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL "STATE IMMIGRATION ADVISAL WARNING DOES NOT PRECLUDE IAC CLAIM
Hernandez v. State, 2012 WL 5869660 (Fla. Nov. 21, 2012) (a trial court's warning to a defendant that the plea may subject him or her to deportation, does not preclude a finding of prejudice where the defendant is facing mandatory deportation).

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL "PADILLA DOES NOT APPLY RETROACTIVELY
Hernandez v. State, ___ So.3d ___, 2012 WL 5869660 (Fla. Nov. 21, 2012) (Padilla does not apply retroactively to the petitioner's 2001 conviction under state retroactivity law).

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL "PADILLA APPLIES RETROACTIVELY WHERE POST-CONVICTION MOTION WAS TIMELY FILED AND PENDING WHEN PADILLA WAS DECIDED
Castano v. State, ___ So.3d ___, 2012 WL 5869668 (Fla. Nov. 21, 2012) (per curiam) (Padilla does apply retroactively to petitioner's 2009 conviction because her postconviction motion was timely filed and pending when Padilla issued, even though the conviction was already final).

POST CON RELIEF " FLORIDA " GROUNDS " STATE ADVISAL STATUTE " TWO-YEAR STATUTE OF LIMITATIONS
State v. Green, 944 So. 2d 208 (Fla. 2006) (motion to withdraw a plea on grounds that the trial court did not advise of the possibility of deportation will be held to same two-year time constraint as other postconviction motions to vacate sentences).

POST CON RELIEF - GROUNDS - INEFFECTIVE COUNSEL - FAILURE TO ADVISE CONCERNING FOREIGN IMMIGRATION CONSEQUENCES
United States v. Ibekwe, 891 F. Supp. 587 (M.D. Fla. 1995) (defense counsel's failure to advise defendant before plea of adverse Nigerian immigration consequences of plea did not constitute ineffective assistance of counsel).

Other

POST CON RELIEF " WISCONSIN " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " FAILURE TO GIVE ACCURATE IMMIGRATION ADVICE
State v. Shata, ___ Wis. ___, Case No. 2013AP1437-CR, slip op. (Jul. 9, 2015) (where conviction made the defendant deportable, defense counsel had a Padilla obligation to advise the defendant of that immigration consequence); but see State v. Ortiz-Mondragon, ___ Wis. ___, Case No. 2013AP2435-CR, slip op. (Jul. 9, 2015) (where relevant immigration law is far from succinct, clear, and explicit as to what constitutes a crime involving moral turpitude, defense counsel was simply required to advise the defendant that conviction of the criminal charges may carry a risk of adverse immigration consequences.); quoting Padilla, 559 U.S. at 369.

PRACTICE ADVISORY
Padilla dealt with two different IAC claims: (1) Failure to advise of immigration consequences at plea; and (2) Affirmatively misadvising of immigration consequences at plea. Padilla v. Kentucky, 130 S. Ct. 1473 (2010). The first claim is not retroactive. Chaidez v. United States, 133 S.Ct. 1103 (February 20, 2013). The second claim is retroactive. Chaidez specifically says it does not apply to affirmative misadvice IAC claims. As the court stated: True enough, three federal circuits (and a handful of state courts) held before Padilla that misstatements about deportation could support an ineffective assistance claim. But those decisions reasoned only that a lawyer may not affirmatively misrepresent his expertise or otherwise actively mislead his client on any important matter, however related to a criminal prosecution. See, e.g., United States v. Kwan, 407 F.3d 1005, 1015"1017 (C.A.9 2005). They co-existed happily with precedent, from the same jurisdictions (and almost all others), holding that deportation is not so unique as to warrant an exception to the general rule that a defendant need not be advised of the [collateral] consequences of a guilty plea. United States v. Campbell, 778 F.2d 764, 769 (C.A.11 1985). [Footnote omitted.] So at most, Chaidez has shown that a minority of courts recognized a separate rule for material misrepresentations, regardless whether they concerned deportation or another collateral matter. That limited rule does not apply to Chaidez's case. Chaidez, supra, at 1112. Justice Sotomayors dissent accurately points this out, and says that a plea based on mistaken legal advice has for many years been the law, when she referred to the age-old principle that a lawyer may not affirmatively mislead a client. Id. at 1113 (Sotomayor, J., dissenting). All we have to do is to avoid a failure to advise claim (not retroactive) and reframe the IAC claim as affirmative misadvice. For example, see an immigration lawyer after plea. Or This plea might cause your deportation (when it causes mandatory deportation), or even simply standing by while the judge says Might cause, without correcting the mistaken advice. The attorney thereby adopts the misadvice. Look carefully at everything the lawyer did say about immigration, and at what the court said about immigration consequences, and find something wrong. See the wonderful practice advisory on Chaidez on the NLG NIP website. Also see the Immigrant Defense Project practice advisory on litigating post-conviction relief cases in NY, where New Yorks highest court found Padilla not to be retroactive. The strategy suggestions in this advisory may prove helpful in states where Padilla has been deemed non-retroactive. Practitioners in states where the issue has not been decided should also consider these strategies, to ensure that the arguments are preserved in the event that Padilla is deemed non-retroactive. While Chaidez held that Padilla is not retroactive as to failure to advise claims, it left open several issues. Here is a non-exhaustive list: (1) Perhaps most importantly, Chaidez does not bind state courts. So unless you are in a state that has affirmatively rejected all of the many arguments for retroactive application, those arguments should continue to be presented in state court. (2) Chaidez did not decide whether a different retroactivity rule should apply where a claim of ineffective assistance of counsel is properly raised for the first time in postconviction proceedings. 133 S. Ct. 1113 n.16. That claim is quite strong and should continue to be raised in any jurisdiction that has not explicitly rejected it. (3) Chaidez did not decide whether a different retroactivity rule should apply in federal postconviction proceedings brought pursuant to 28 USC 2255. 133 S. Ct. 1113 n.16. This argument is similar to the argument that a different retroactivity rule should govern state postconviction proceedings (an argument that has succeeded in some states) and can continue to be raised in federal postconviction proceedings. (4) Chaidez did not decide whether the Padilla rule is a watershed rule. 133 S. Ct. 1107 n.3. So that argument is available in many jurisdictions. Many of these arguments (or similar ones) have been presented in the amicus briefs I have filed on this issue, some of which are available here. Thanks to Christopher N. Lasch.

POST-CONVICTION RELIEF " GROUNDS " PADILLA " RETROACTIVITY
People v. Baret, __ N.E.3d __, 2014 WL 2921420 (NY 06/30/14) (Padilla does not apply retroactively in state court post-conviction proceedings).

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " FAILURE TO GIVE ACCURATE IMMIGRATION ADVICE " RETROACTIVITY OF PADILLA RULE
Ramirez v. State, ___ N.M. ___ (Jun. 19, 2014) (State v. Paredez is retroactive to 1990, when New Mexico instituted a rule requiring the court to advise a defendant pleading guilty that there may be immigration consequences); see Form 9-406 NMRA (1990); Rule 5-303(E)(5) NMRA (1990); Rule 6-502(D)(2) NMRA (1990); Rule 7-502(E)(2) NMRA (1990); & Rule 8-502(D)(2) NMRA (1990); State v. Garcia, 1996-NMSC-013, 8, 121 N.M. 544, 915 P.2d 300 (stating that New Mexico has long recognized that for a guilty plea to be valid it must be knowing and voluntary). http://www.nmcompcomm.us/nmcases/nmsc/slips/SC33,604.pdf

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " PADILLA " COURT ADVISALS
Effective December 1, 2013, an amendment to Federal Rule of Criminal Procedure 11(b)(1) takes effect that requires a judge, during a plea colloquy, to inform the defendant and ensure that he understands that "if convicted, a defendant who is not a United States citizen may be removed from the United States, denied citizenship, and denied admission to the United States in the future." FRCP 11(b)(1)(O). This amendment is intended to implement the holding in Padilla v. Kentucky, 130 S. Ct. 1473 (2010). For information on the background of this amendment, see http://www.gpo.gov/fdsys/pkg/CDOC-113hdoc25/pdf/CDOC-113hdoc25.pdf Thanks to Raymond R. Bolourtchi Note: The courts advisal does not relieve defense counsel from the duties flowing from Padilla. For example, in Padilla itself, the trial court gave Kentuckys version of the new Rule 11 warning of possible immigration consequences, but Padilla ruled counsel must investigate and advise the defendant of the actual immigration consequences of the plea anyway.

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " FAILURE TO GIVE ACCURATE IMMIGRATION ADVICE " RETROACTIVITY OF PADILLA " CHAIDEZ PRACTICE ADVISORY
The newest Defending Immigrants Partnership practice advisory is now on the National Immigration Project's website. http://nationalimmigrationproject.org/legalresources/practice_advisories/Chaidez%20practice%20advisory%203-1-2013..pdf Thanks to Dan Kesselbrenner.

ARTICLE " CAL POST CON " EFFECT OF CHAIDEZ V. UNITED STATES ON CALIFORNIA LAW CONCERNING PADILLA CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL WITH RESPECT TO IMMIGRATION ADVICE
In Chaidez v. United States, ___ U.S.___, ___ S.Ct.___, 2013 WL 610201 (Feb. 20, 2013), the Supreme Court held that Padilla does not apply to convictions that were already final on March 31, 2010 under the retroactivity analysis in Teague. Padilla did not much change on the California law on this subject. In California, in 1987, the First District Court of Appeals held it is ineffective assistance of counsel to fail to investigate the federal immigration consequences of a disposition and to fail to advise a foreign national defendant of them before plea. People v. Soriano, 194 Cal.App.3d 1470 (1987). In 1989, the Fifth District Court of Appeal held it to be ineffective assistance to fail to request a non-deportable sentence. People v. Barocio, 216 Cal.App.3d 99 (1989). Both of these decisions have been binding on trial courts statewide since their decision. Therefore, criminal defense counsel and lower state courts were bound to follow those opinions. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456) (Under the doctrine of stare decisis, all tribunals exercising inferior jurisdiction are required to follow decisions of courts exercising superior jurisdiction.) The California Supreme Court then held it to be ineffective assistance of counsel to give affirmative misadvice to a noncitizen concerning the immigration consequences of a plea if prejudice is shown. In re Resendiz, 25 Cal.4th 230, 105 Cal.Rptr. 2d 431 (2001). The Sixth District Court of Appeals held it to be ineffective assistance of counsel to fail to seek a non-deportable plea to a greater offense. People v. Bautista, 115 Cal.App.4th 229 (2004). The holding of Padilla, therefore, does not significantly change California law concerning effective assistance to noncitizen defendants in advising them of, and helping them avoid, disastrous immigration consequences of criminal convictions. Padillas major effect on California law is that the California Supreme Court must now recognize that a failure to advise a defendant can constitute ineffective assistance of counsel, an issue on which it was as yet unpersuaded in 2001 when it decided Resendiz. This unpersuaded statement, however, was nothing more than dictum, since the failure to advise claim was not before the California Supreme Court in Resendiz. The Court in Resendiz did not overrule or even cite the Soriano decision, that held since 1987 that failure to advise was ineffective. In Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (Mar. 31, 2010), the Supreme Court held that the Sixth Amendment requires an attorney for a criminal defendant affirmatively to provide accurate advice about the risk of deportation arising from a guilty plea. In Chaidez v. United States, ___ U.S.___, ___ S.Ct.___, 2013 WL 610201 (Feb. 20, 2013), the Supreme Court held that under the principles set out in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), Padilla does not have retroactive effect. Therefore, defendants whose convictions became final prior to Padilla [March 31, 2010] therefore cannot benefit from its holding. (Chaidez, supra, at *10.) Defendants with convictions that were still on appeal, or as to which the time for filing a notice of appeal had not yet expired, may still take advantage of the new rule of Padilla. Seven justices joined in the judgment, with Justice Sotomayor, joined by Justice Ginsberg, dissenting. There are several important limitations to the Chaidez decision. Padilla decided two distinct claims: First, it held that counsels affirmative misadvice concerning the actual immigration consequences of a plea constituted ineffective assistance of counsel. Second, it held that counsels failure affirmatively to advise the client of those consequences also constituted ineffective assistance of counsel. In Chaidez, only a failure to advise claim was raised, and the Supreme Courts holding in Chaidez therefore only addressed failure to advise claims. The Supreme Court explicitly distinguished affirmative misadvice claims as not subject to its retroactivity holding: True enough, three federal circuits (and a handful of state courts) held before Padilla that misstatements about deportation could support an ineffective assistance claim. But those decisions reasoned only that a lawyer may not affirmatively misrepresent his expertise or otherwise actively mislead his client on any important matter, however related to a criminal prosecution. See, e.g., United States v. Kwan, 407 F.3d 1005, 1015"1017 (C.A.9 2005). They co-existed happily with precedent, from the same jurisdictions (and almost all others), holding that deportation is not so unique as to warrant an exception to the general rule that a defendant need not be advised of the [collateral] consequences of a guilty plea. United States v. Campbell, 778 F.2d 764, 769 (C.A.11 1985).FN14 So at most, Chaidez has shown that a minority of courts recognized a separate rule for material misrepresentations, regardless whether they concerned deportation or another collateral matter. That limited rule does not apply to Chaidez's case. And because it lived in harmony with the exclusion of claims like hers from the Sixth Amendment, it does not establish what she needs to"that all reasonable judges, prior to Padilla, thought they were living in a Padilla-like world. (Id. at ___ [emphasis supplied].) Therefore, the Chaidez holding on retroactivity of Padilla does not apply to the separate rule for material misrepresentations as to federal immigration consequences of a plea, that pre-existed Padilla and lived in harmony with the exclusion of claims like hers [failure to advise claims] from the Sixth Amendment . . . . (Ibid.) The affirmative misrepresentation rule, that material misrepresentations constitute ineffective assistance of counsel, falls within the normal run of Strickland claims, and there is no reason to believe it was a new rule. This rule by 2001 was considered a clear state and federal consensus on federal constitutional ineffective assistance of counsel. One of those state courts, though not mentioned in Chaidez, that earlier recognized failure to advise clients was the California Supreme Court. In 2001, ten years before Padilla was decided, that court held that the collateral consequences doctrine did not categorically bar a claim that affirmative misadvice concerning the adverse immigration consequences of a plea constituted reversible ineffective assistance of counsel if prejudice was shown. In re Resendiz, 25 Cal.4th 230, 248, 105 Cal.Rptr. 2d 431 (2001) (For the foregoing reasons, we conclude that neither the existence of section 1016.5 nor the collateral nature of immigration consequences constitutes a per se bar to an ineffective assistance of counsel claim based on counsel's misadvice about the adverse immigration consequences of a guilty plea. Therefore, we may not in this case avoid the circumstance-specific reasonableness inquiry required by Strickland. ( Roe v. Flores"Ortega, supra, 528 U.S. at p. 478 [120 S.Ct. at p. 1035]; see also Hill, supra, 474 U.S. at pp. 57"58, 106 S.Ct. 366; U.S. v. Mora"Gomez, supra, 875 F.Supp. at p. 1213.) Accordingly, we shall proceed to apply Strickland 's familiar reasonableness standard to the circumstances of the instant case. (Strickland, supra, 466 U.S. at p. 688, 104 S.Ct. 2052.)). In reaching that conclusion, the court reviewed the nationwide state of the law " state and federal -- concerning affirmative misadvice claims of ineffective assistance of counsel: Even among the federal and other courts cited by the Attorney General, the clear consensus is that an affirmative misstatement regarding deportation may constitute ineffective assistance. (U.S. v. Mora-Gomez, supra, 875 F.Supp. at p. 1212.) FN14 FN14. See also People v. Huynh (1991) 229 Cal.App.3d 1067, 1083, 281 Cal.Rptr. 785; Ostrander v. Green (4th Cir.1995) 46 F.3d 347, 355, overruled on another point in O'Dell v. Netherland (4th Cir.1996) 95 F.3d 1214; U.S. v. Del Rosario, supra, 902 F.2d at page 59 and footnote 2; U.S. v. George (7th Cir.1989) 869 F.2d 333, 337; United States v. Campbell (11th Cir.1985) 778 F.2d 764, 768"769; Downs"Morgan v. United States (11th Cir.1985) 765 F.2d 1534, 1541; United States v. Santelises (2d Cir.1975) 509 F.2d 703, 703"704; United States v. Briscoe (D.C.Cir.1970) 432 F.2d 1351, 1353"1354; U.S. v. Corona-Maldonado (D.Kan.1999) 46 F.Supp.2d 1171, 1173; United States v. Nagaro-Garbin (E.D.Mich.1987) 653 F.Supp. 586, 590; People v. Pozo, supra, 746 P.2d at page 527, footnote 5; People v. Ford (1995) 86 N.Y.2d 397, 633 N.Y.S.2d 270, 657 N.E.2d 265, 268"269; People v. Correa (1985) 108 Ill.2d 541, 92 Ill.Dec. 496, 485 N.E.2d 307, 310"311. There are a very few cases suggesting an affirmative misrepresentation is constitutionally irremediable (see, e.g., United States v. Sambro (D.C.Cir.1971) 454 F.2d 918, 921 922; United States v. Parrino (2d Cir.1954) 212 F.2d 919, 921"922), but, as one court has remarked, we properly may regard those cases as aberrations (Strader v. Garrison (4th Cir.1979) 611 F.2d 61, 64). (Id. at 251, 105 Cal.Rptr. 2d 446.) See also, e.g., United States v. Couto, 311 F.3d 179, 187-88 (2d Cir. 2002); Commonwealth v. Tahmas, Nos. 105254, 105255, 2005 WL 2249587, at *3 (Va. Cir. Ct. July 26, 2005); Rollins v. State, 591 S.E.2d 796 (Ga. 2004). Further research will disclose additional favorable affirmative misadvice decisions handed down after Resendiz in 2001, but prior to Padilla in 2010. This national clear consensus was that affirmative misadvice concerning the adverse immigration consequences of a plea constitutes deficient performance of counsel. The simplest conclusion, therefore, is that at least 10 years before Padilla was decided, prejudicial affirmative misadvice was a claim that could be used to invalidate a state or federal conviction as a matter of federal constitutional law. At a minimum, the law in the specific jurisdictions cited above, and any others in which the law was the same, could be used to invalidate convictions that became final after the date of decision in each jurisdiction holding that affirmative misadvice constituted ineffective assistance of counsel. Failure to advise claims, in addition, remain alive prior to Padilla in those jurisdictions with decisions to that effect. These jurisdictions include at least California, Colorado, and New Mexico, which had already held that failure to advise claims constituted ineffective assistance of counsel. People v. Pozo, 746 P.2d 523, 527"529 (Colo.1987); State v. Paredez, 2004"NMSC"036, 17"19, 136 N.M. 533, 539, 101 P.3d 799, 805; People v. Soriano, 194 Cal.App.3d 1470 (1987). The fact that Padilla does not apply retroactively does not invalidate prior state decisions holding to the contrary. The Supreme Court in Chaidez was wrong to omit California from the (short) list of jurisdictions that adopted the failure to advise rule prior to Padilla. California since 1987 has held that failure to advise constitutes ineffective assistance of counsel. People v. Soriano (1987) 194 Cal.App.3d 1470, 240 Cal.Rptr. 328. This California 1987 decision was based on both the state and federal constitutions. People v. Soriano, 194 Cal.App.3d 1470, 1478-1479 (1987) (Both our federal and state Constitutions give a criminal defendant the right to assistance of counsel. (U.S. Const., 6th Amend.; Cal. Const., art. I, 15.) The right to counsel entitles a defendant to effective counsel. ( Strickland v. Washington (1984) 466 U.S. 668, 686 [80 L.Ed.2d 674, 104 S.Ct. 2052]; People v. Pope, supra, 23 Cal.3d 412, 423-424.) The standard against which counsel's effectiveness will be measured is that of reasonably *1479 competent' attorney who acts as a diligent conscientious advocate. ( United States v. DeCoster (D.C.Cir 1973) 487 F.2d 1197, 1202 [487 F.2d 1197]; accord People v. Pope, supra, 23 Cal.3d at p. 423.)). The federal Constitution provides minimum guarantees of fundamental constitutional rights, but certainly does not prohibit the State of California from granting greater protections in its constitution. States must enforce minimum federal constitutional standards, but are free to adopt additional protections. (Reynolds v. Superior Court (1974) 12 Cal.3d 834, 842, 117 Cal.Rptr. 437; Cal. Const., Art. I, 24 (declaring that [r]ights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution.)) Moreover, state courts are charged with enforcing federal constitutional guarantees, and nothing in Padilla or Chaidez holds that Soriano was in error. It merely reached the correct conclusion earlier than the federal courts. As Rebecca Sharpless pointed out, the court in declined to address Chaidezs two additional arguments: 1) Teagues analysis does not apply because she, unlike Teague, had a federal rather than a state conviction; and 2) new rules apply in post-conviction proceedings raising ineffective assistance of counsel claims because such claims cannot be brought on direct appeal. The Court thus applied Teague for the first in a federal case, but it did so without ruling that Teague should apply, leaving the question open for future litigation. Moreover, both state and federal litigants can still take up Chaidezs argument that new rules apply in ineffective assistance of counsel cases that must be brought on post-conviction rather than direct appeal. Rebecca Sharpless, Chaidez V. U.S.: Assuming Teague Applies, Padilla Announced A New Rule (2/22/13), http://crimmigration.com/2013/02/22/chaidez-v-us--assuming-teague-applies-padilla-announced--a-new-rule.aspx. Since these two arguments were not properly preserved and presented in Chaidez, the Supreme Court did not decide them. Therefore, counsel are free to argue: (1) Teague does not apply in state proceedings, unless the state has independently chosen to follow the Teague rule. (2) New rules apply in post-conviction proceedings raising ineffective assistance of counsel claims because such claims cannot be brought on direct appeal. Chaidez does not apply to review of state claims under state authority. It held merely that Padilla does not apply to cases already final on March 31, 2010, when it was decided. Favorable state authority decided prior to Padilla holding defense counsels failure to advise, or affirmative misadvice, concerning adverse immigration consequences of a plea such as that in California, remains intact. This is particularly important in California, where state authority condemned failure to advise as ineffective assistance of counsel has existed since 1987. Following the rule set forth in People v. Soriano, a California Court of Appeals panel in 1989 made explicit what was only implicit in Soriano: the duty to advise about immigration consequences also includes the duty to defend against those consequences. People v. Barocio, (1989) 216 Cal.App.3d 99 (failure to file judicial recommendation against deportation or seek 364 day sentence is ineffective assistance of counsel). This was also the holding in People v. Bautista (2004) 115 Cal.App.4th 229 (counsel correctly told the defendant that he would be deported for possession of sale conviction, but failure to attempt to plead up to offer to sell or transportation may be ineffective assistance of counsel). This prior authority does not depend on Padilla, and so remains useful even though Padilla itself does not apply to cases already final when it was decided.

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " FAILURE TO ADVISE OF IMMIGRATION CONSEQUENCES " THE FEDERAL CONSTITUTION DOES NOT REQUIRE THE STATES TO FOLLOW TEAGUE IN STATE REVIEW OF STATE CONVICTIONS " PRACTICE ADVISORY
Teague is a test that governs federal habeas petitions brought under 28 USC 2255. Padilla's case was decided on an appeal from the Kentucky Supreme Court, which is not governed by these statutes. Graham v. Collins, 506 U.S. 461, 505 (1993). Therefore, Teague should not govern state review of state convictions at all. See Danforth v. Minnesota, 552 U.S. 264, 273, 128 S.Ct. 1029, 169 L.Ed.2d 859 (2008). The states, however, are free to adopt the Teague rule if they wish. Maryland, for example, has already adopted such a broader rule, which means that people in Maryland can continue to bring Padilla claims for cases that were final on March 31, 2010. Denisyuk v. State, 422 Md. 462 (2011).

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " FAILURE TO ADVISE OF IMMIGRATION CONSEQUENCES " THE FEDERAL CONSTITUTION DOES NOT REQUIRE THE STATES TO FOLLOW TEAGUE IN STATE REVIEW OF STATE CONVICTIONS " PRACTICE ADVISORY
Teague is a test that governs federal habeas petitions brought under 28 USC 2255. Padilla's case was decided on an appeal from the Kentucky Supreme Court, which is not governed by these statutes. Graham v. Collins, 506 U.S. 461, 505 (1993). Therefore, Teague should not govern state review of state convictions at all. See Danforth v. Minnesota, 552 U.S. 264, 273, 128 S.Ct. 1029, 169 L.Ed.2d 859 (2008). The states, however, are free to adopt the Teague rule if they wish. Maryland, for example, has already adopted such a broader rule, which means that people in Maryland can continue to bring Padilla claims for cases that were final on March 31, 2010. Denisyuk v. State, 422 Md. 462 (2011).

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " FAILURE TO ADVISE OF IMMIGRATION CONSEQUENCES " ARGUMENT THAT TEAGUE DOES NOT APPLY TO CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL MADE FOR THE FIRST TIME " PRACTICE ADVISORY
Counsel can argue that Teague does not apply to first-time claims of ineffective assistance of counsel. In most direct appeals, the record is not sufficient to raise the issue "my attorney did not give me immigration advice" because that requires testimony outside the record on direct appeal. If the Teague rule applies to first-time IAC claims, it is impossible for any court ever to announce a new rule/new development in the area of IAC claims, as such a claim could not be raised on direct appeal, and would be barred by Teague in a post-conviction IAC claim. Therefore, the Constitution does not permit Teague to bar such claims the first time they are made.

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " FAILURE TO GIVE ACCURATE ADVICE " PADILLA " PREJUDICE
Padilla v. Commonwealth, 381 S.W.3d 322, *323 (Ky. App, Sept. 28, 2012) (After careful consideration of the United States Supreme Courts decision, we conclude that Padilla demonstrated that if he had been properly informed of the immigration consequences of his guilty plea, he would have insisted on going to trial and that his decision would have been rational under the circumstances.), reversing with instructions to vacate the conviction.

POST-CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE " FAILURE TO GIVE CORRECT IMMIGRATION ADVICE " PADILLA " PREJUDICE
State v. Martinez, 729 S.E.2d 390,*457 (Ga., July 13, 2012) ("Regardless of the prior erroneous advice from plea counsel, the trial court correctly informed Martinez of the immigration consequences of his guilty plea, and he has therefore failed to prove that he was prejudiced by counsels deficient performance.")

POST CON RELIEF " GROUNDS " HAWAII " INEFFECTIVE ASSISTANCE OF COUNSEL " PADILLA " TRUELY CLEAR
Cun-Lara v. State, 126 Hawai'i 541 (Hawaii App. March 28, 2012) (defense counsel's failure to advise defendant of exact immigration consequences, instead advising that "defendant would be lucky if he was not deported" for the offense if he plead to charge of possessing drug paraphernalia, did not constitute deficient performance, as required to support claim of ineffective assistance of counsel, because deportation consequences of defendant's plea were not truly clear; instead, defendant appeared to remain eligible for cancellation of removal from country, as his paraphernalia conviction did not appear to constitute an aggravated drug felony under federal law, defendant had lived for more than ten years in State, and he did not claim to have been unlawfully admitted for permanent residence for at least five years). NOTE: The obvious flaw in the reasoning behind this decision is that the court conflates a finding of deportability with availability of relief, and concludes that the availability of relief makes the immigration consequences of the plea unclear.

POST CON RELIEF"GROUNDS"INEFFECTIVE ASSISTANCE OF COUNSEL"PADILLA RETROACTIVITY
State v. Gaitan, 209 N.J. 339, 37 A.3d 1089 (Feb. 28, 2012) (Supreme Courts Padilla decision is a new constitutional rule of law which is not applicable retroactively on collateral review); distinguishing State v. Nunez-Valdez, 200 N.J. 129 (2009) (defense counsel rendered ineffective assistance of counsel when he gives false or affirmatively misleading advice concerning deportation consequences of a guilty plea, and defendant shows he would not have entered the guilty plea if he had received accurate information).

POST CON RELIEF"NORTH CAROLINA"GROUNDS"INEFFECTIVE ASSISTANCE OF COUNSEL"PADILLA NOT RETROACTIVE
State v. Alshaif, 2012 WL 540740 (Ct. App. Feb. 21, 2012) (unpublished) (North Carolina applies the test established by the United States Supreme Court in Teague v. Lane, 489 U.S. 288, 103 L. Ed. 2d 334 (1989), to determine "retroactivity for new federal constitutional rules of criminal procedure on state collateral review. State v. Zuniga, 336 N.C. 508, 513, 444 S.E.2d 443, 446 (1994). . . . [W]e find the reasoning of the Tenth Circuit in Chang Hong persuasive and join with those courts holding that Padilla announces a new rule of constitutional law and is not retroactively applicable on collateral review.").

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " PADILLA NOT RETROACTIVE IN NORTH CAROLINA
State v. Alshaif, 724 S.E.2d 597 (N.C. Ct. App. Feb. 21, 2012) (Padilla v. Kentucky, 130 S. Ct. 1743 (2010), does not apply retroactively); following United States v. Hong, 671 F.3d 1147 (10th Cir. 2011). Note: North Carolina follows the retroactivity framework announced in Teague v. Lane, 489 U.S. 288 (1989), which provides that new rules of criminal procedure do not apply retroactively unless one of two exceedingly narrow exceptions are met"the decision is substantive rather than procedural or it is a watershed rule of criminal procedure. Alshaif, No. COA11-817, slip op. at 15 (quoting Whorton v. Bockting, 549 U.S. 406, 416 (2007)).

POST CON RELIEF"GROUNDS"INEFFECTIVE ASSISTANCE OF COUNSEL"PADILLA"NEBRASKA
State v. Gonzalez, 283 Neb. 1, 807 N.W.2d 759 (Neb. Jan. 13, 2012) (to render effective assistance of counsel, defense counsel must inform his or her client whether a plea carries a risk of deportation).

POST CON RELIEF"PRACTICE ADVISORY"NEBRASKA" GROUNDS"INEFFECTIVE ASSISTANCE OF COUNSEL
To prevail on a claim of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must show that counsels performance was deficient and that this deficient performance actually prejudiced his or her defense. In the context of a plea of guilty or no contest, to prevail on a claim of ineffective assistance of counsel, a defendant must allege facts showing a reasonable probability that he or she would have insisted on going to trial but for counsels errors. A claim of ineffective assistance of counsel presents a mixed question of law and fact. Whether counsel was deficient and whether the defendant was prejudiced are questions of law that an appellate court reviews independently of the lower courts decision, but the appellate court reviews factual findings for clear error. See State v. Gonzalez, 283 Neb. 1, 807 N.W.2d 759 (Neb. Jan. 13, 2012).

POST CON RELIEF"NEBRASKA"GROUNDS"INEFFECTIVE ASSISTANCE OF COUNSEL"FAILURE TO GIVE ACCURATE IMMIGRATION ADVICE
Advice regarding immigration consequences is not categorically removed from the ambit of the Sixth Amendment right to counsel, and Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), applies to such a claim. See State v. Gonzalez, 283 Neb. 1, 807 N.W.2d 759 (Neb. Jan. 13, 2012), abrogating State v. Zarate, 264 Neb. 690, 65 1N.W.2d 215 (2002). Defense counsel must inform his or her client whether a plea carries a risk of deportation. To obtain relief on a claim of ineffective assistance of counsel based on failure to advise a client whether a plea carries a risk of deportation, the defendant must convince the court that a decision to reject the plea bargain would have been rational under the circumstances. See State v. Gonzalez, 283 Neb. 1, 807 N.W.2d 759 (Neb. Jan. 13, 2012), abrogating State v. Zarate, 264 Neb. 690, 651 N.W.2d 215 (2002).

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " PADILLA " RETROACTIVITY
State v. Gaitan, 209 N.J. 339 (2012) (Padilla was a new rule and therefore prospective only).

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL
Denisyuk v. State, ___ Md. App. ___, ___, ___ A.2d ___ (Md. Ct. App. Oct. 25, 2011) (Padilla v. Kentucky, 130 S. Ct. 1473 (2010), applies retroactively to convictions entered after April 1, 1997: where a decision has applied settled precedent to new and different factual situations, the decision always applies retroactively, and it is only where a new rule constitutes a clear break with the past that the question of prospective only application arises.); quoting Potts v. State, 479 A.2d 1335, 1340 (Md. 1984)).

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " PADILLA
Elizondo-Vasquez v. State, __ S.W.3d ___, 2011 WL 4916610 (Tex. App. Oct. 18, 2011) (where defense counsel informed the defendant that the plea might impact his immigration status, and advised him to consult an immigration lawyer, but in fact, the plea resulted in mandatory deportation, defense counsel was constitutionally ineffective, rendering the plea of guilty involuntary, requiring reversal for a new trial).

POST CON RELIEF " PROSECUTORS DUTY
Elizondo-Vasquez v. State, __ S.W.3d ___, 2011 WL 4916610 (Tex. App. Oct. 18, 2011) (commenting on the prosecutions concession on appeal of reversible Padilla error :We note that it is the primary duty of all prosecuting attorneys, including any special prosecutors, not to convict, but to see that justice is done. TEX. CODE CRIM. PROC. ANN. art. 2.01 (West 2005). Admirably, in this circumstance, the State has not only recognized the futility of blindly opposing what appears to be settled law, it has fulfilled its primary statutorily-imposed duty to see that justice is done in this case. In doing so, the State has performed ethically and in the best tradition of the legal profession, a course of action we wholeheartedly commend.)

POST CON RELIEF " GROUNDS " PADILLA
Salazar v. State, 2011 WL 4584938 (Tex. App. Sept. 28, 2011) (defense counsel violated Padilla duty to advise client about certain deportation consequence, and this error was prejudicial, since it would have been rational for the defendant to have taken the case to trial if he had known about the immigration disaster, requiring reversal of the conviction: preserving the clients right to remain in the United States may be more important to the client than any potential jail sentence.).

BIBLIOGRAPHY POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL
Csar Cuauhtmoc Garca Hernndez, Major Issues the Courts Have Been Dealing with Since Padilla v. Kentucky, 2011 Emerging Issues 5882 (Sept. 8, 2011).

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " PADILLA AND MORAL TURPITUDE
Lopez-Penaloza v. State, 804 N.W.2d 537 (Iowa Ct. App. Sept. 8, 2011) (Padilla requires only general advice that adverse immigration consequences may result if the issue is whether the conviction constitutes a crime of moral turpitude); interpreting Padilla v. Kentucky, 130 S. Ct. 1473, 1483 (2010). NOTE: This decision (incorrectly) creates a bright-line rule that only general advice is required when the issue is whether an offense is a crime of moral turpitude. Essentially the court states that because a CMT determination involves more work than simply reading the INA, defense counsel doesnt have to do it.

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " FAILURE TO GIVE ACCURATE IMMIGRATION ADVICE " RETROACTIVITY OF PADILLA " TEXAS
Salazar v. State, __ S.W.3d __, 2011 WL 4056283 (Tex.App. Aug. 31, 2011) (Padilla applies retroactively to cases that have become final, because it applies the 1984 Strickland rule to a new situation).

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " RETROACTIVITY OF PADILLA
Santos-Sanchez v. United States, ___ F.Supp.3d ___, 2011 WL 3793691 (S.D. TX. Aug. 24, 2011) (in Danforth v. Minnesota, 128 S. Ct. 1029 (2008), the Supreme Court has limited the Teague test to federal collateral review, and Teague does not apply to state court cases; Padilla does not create a new rule, for purposes of barring retroactive application, but applies the 1984 rule of Strickland v. Washington to a new factual context).

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " RETROACTIVITY " STATE MANDATED FILING DEADLINE
Commonwealth v. Garcia, No. 1815 MDA 2010, 2011 PA Super. 124, slip op. (Penn. Sup. Ct. Jun. 17, 2011) (Padilla v. Kentucky is not a new constitutional right, and therefore did not excuse failure to file post-conviction relief application within the one-year statute of limitations under Pennnsylvania Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A. 9545).

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " PADILLA " RETROACTIVITY
Commonwealth v. Clarke, 460 Mass. 30, 31, 949 N.E.2d 892 (Jun. 17, 2011) (Padilla is to be applied retroactively on collateral review of guilty pleas obtained after the enactment of IIRAIRA (eff. April 1, 1997); the defendant has made an insufficient showing that had he been properly informed of the immigration consequences of his guilty pleas, there is a reasonable probability that the result of the proceeding would have been different, so the court affirms the denial of his motion for a new trial). NOTE: The court identified IIRAIRA's effective date " Sept. 24, 1996 " as the pivotal point at which deportation became virtually mandatory, based on language in Padilla. There are immigration counsel that would disagree, since (among other things) aggravated felonies have been around since 1988.

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " TEXAS " PADILLA " FAILURE TO ADVISE OF ACTUAL IMMIGRATION CONSEQUENCES
Ex Parte Tanklevskaya, ___ Tex. ___ (Ct. Crim. App, 1st Dist., May 26, 2011) (trial court erred in denying habeas relief because, pursuant to Padilla, petitioners plea counsel provided ineffective assistance, rendering her guilty plea involuntary; counsel failed to specifically inform her that a guilty plea to misdemeanor possession of less than two ounces of marijuana, in violation of TX H&S Code 481.121(b)(1), would render her inadmissible, or that she could not request a waiver because the information in the original case did not specify that the quantity of marijuana allegedly possessed was less than thirty grams: Because counsel, who knew that applicant had an out-of-country trip planned, only informed her of the general possible immigration consequences, and did not inform her that her inadmissibility and subsequent removal was virtually certain and presumptively mandatory, we hold that counsels performance was deficient under the first prong of Strickland.).

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " RETROACTIVITY OF PADILLA
Ex Parte Tanklevskaya, ___ Tex. ___, ___ (Ct. Crim. App, 1st Dist., May 26, 2011) (specific applications of Strickland, which involve case-by-case examinations of the evidence, generally do not establish a new rule for purposes of Teague, so Padilla should be applied retroactively to cases on collateral review); see United States v. Hubenig, No. 6:03-mj-040, 2010 WL 2650625, at *5"8 (E.D. Cal. July 1, 2010) (slip op.) (holding Padilla did not establish new constitutional rule and, therefore, should be applied retroactively), and United States v. Chaidez, 730 F. Supp. 2d 896, 898"904 (N.D. Ill. 2010) (holding same); Marroquin v. United States, No. M-10-156, 2011 WL 488985, at *2 (S.D. Tex. Feb. 4, 2011) (slip op.) (quoting Graham v. Collins, 506 U.S. 461, 467, 113 S. Ct. 892, 897 (1993); cf. Ex parte Moussazadeh, No. AP-76439, 2010 WL 4345740, at *1 (Tex. Crim. App. Nov. 3, 2010) (ordering that an application for a writ of habeas corpus be filed and set for submission to determine, among other issues, whether Padilla is an application of the established rule in Strickland v. Washington and whether Padilla announced a new rule that is retroactive on collateral review); but see United States v. Gilbert, No. 2:03-cr-00349-WJM-1, 2010 WL 4134286, at *3 (D.N.J. Oct. 19, 2010) (slip op.) (holding Padilla not retroactive for cases on collateral review), and United States v. Shafeek, No. 05-81129, 2010 WL 3789747, at *3 (E.D. Mich. Sept. 22, 2010) (slip. op.) (holding same). PCN:6.18

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " PADILLA
Campos v. State, ___ Minn. App. ___ (Ct App. May 16, 2011) (Padillas holding that effective counsel has an affirmative duty to inform the defendant whether his or her plea carries a risk of deportation is not a new rule of constitutional criminal procedure, and therefore its holding applies retroactively to cases on collateral review).

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE " PADILLA
Campos v. State, __ N.W.2d __, 2011 WL 1833091 (Minn. App. May 16, 2011) (The holding in Padilla v. Kentucky, 559 U.S.___, ___, 130 S. Ct. 1473, 1486 (2010), that to be constitutionally effective, counsel in a criminal matter has an affirmative duty to inform the defendant whether his or her plea carries a risk of deportation, is not a new rule of constitutional criminal procedure, and therefore its holding applies retroactively to cases on collateral review.).

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " RETROACTIVITY " PADILLA
State v. Golding, ___ Tex. App. ___, ___ S.W.2d ___ (1st Dist. Ct. App. May 12, 2011) (Padilla v. Kentucky applies retroactively to a plea entered before the date of decision).

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " PADILLA - RETROACTIVITY
State v. Golding, ___ Tex. App. ___, ___ S.W.2d ___ (1st Dist. Ct. App. May 12, 2011) (Padilla applies retroactively to cases on collateral review); see Santos-Sanchez v. United States, 381 Fed. App. 419 (5th Cir. 2010) (vacating denial of coram nobis relief and remanding to trial court for further proceedings consistent with Padilla); see also United States v. Chapa, 394 Fed. Appx. 53 (5th Cir. 2010) (recognizing that appellant showed ineffective assistance under Padilla).

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " PADILLA " FLORIDA
Fernandez-Balart v. State, 61 So.3d 1175 (3d D.C.A. Apr. 20, 2011) (although petitioner did not have a claim for ineffective assistance of counsel under State v. Green, 944 So.2d 208 (Fla. 2006), requesting to vacate his 1979 conviction where he was misadvised by counsel as to his immigration consequences, the court held he may refile a new motion asserting any claim which he may have under Padilla v. Kentucky).

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " PADILLA " FLORIDA
Hernandez v. State, ___ So.3d ___ (3d D.C.A. Apr. 6, 2011) (noting inter-district conflict between the 4th DCAs decision in Flores v. State, in that the 3rd DCA, which recognizes that the U.S. Supreme Courts Padilla decision is one which does not turn on the fact that the Kentucky trial court and plea colloquy failed to include a may subject you to deportation type of warning.It turns on the fact that a may warning is deficient (and is actually misadvice) in a case in which a plea will subject the defendant to deportation.).

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " RETROACTIVITY OF PADILLA
Diaz-Palmerin, 2011 U.S. Dist.LEXIS 37151(N.D.Ill. Apr. 5, 2011) (Padilla does not create a new rule of criminal procedure, and therefore it does apply prospectively to cases that became final prior to March 31, 2010 when Padilla was decided).

PRACTICE ADVISORY " POST-CONVICTION RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " IAC DURING PLEA NEGOTIATIONS " DISTINGUISHING LOCKHART V. FRETWELL
In 1993, the Supreme Court stated that the only errors of counsel that can be considered as claims of ineffective assistance are those that deprive the defendant of a substantive or procedural right to which the law entitles him in his defense. Lockhart v. Fretwell, 506 U.S. 364, 372 (1993). While pertinent in Lockhart, in which counsels error deprived the defendant only of a benefit later declared illegal, Justice OConnor was at pains to point out that this language, as well as the courts decision in that case, flowed from the highly unusual fact that the only benefit of which the defendant was there deprived was one which was forbidden under the correct legal analysis. Lockhart did not alter in any way the normal analysis of claims of ineffective assistance of counsel. The normal Strickland test provides sufficient guidance for resolving virtually all ineffective-assistance-of-counsel claims. Williams v. Taylor, 529 U.S. 362, 391 (2000). The Virginia Supreme Court erred in holding that our decision in Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993), modified or in some way supplanted the rule set down in Strickland. Ibid. Williams clarified that the Courts earlier decision in Lockhart dealt with the rare situation where the likelihood of a different outcome attributable to an incorrect interpretation of the law should be regarded as a potential windfall to the defendant rather than the legitimate prejudice contemplated by our opinion in Strickland. Williams, 529 U.S. at 392; see also United States v. Glover, 531 U.S. 198, 203 (2001) ([O]ur holding in Lockhart does not supplant the Strickland analysis.); Jenny Roberts, Proving Prejudice, Post-Padilla, 54 HOWARD L. REV. 693, 699 n.23 (2011). Lockhart was an exception to the normal Strickland prejudice test, applicable only when the benefit of which the defendant was deprived by counsels error was in fact prohibited by a later change in the law. It would be an unfair error of the gravest magnitude to glorify it into a rule that eliminates any protection against ineffective assistance of counsel except in those rare cases in which the defendant can show a reasonable probability he or she would have taken the case to trial.

PRACTICE ADVISORY " POST CON RELIEF " GROUNDS " GUILTY PLEA " REQUIREMENT PLEA MUST BE VOLUNTARY, KNOWING, AND INTELLIGENT " PLEA INVALIDATED BY INEFFECTIVE ASSISTANCE OF COUNSEL DURING PLEA NEGOTIATIONS
To be valid, a plea of guilty must be free and voluntary, knowing and intelligent. Boykin v. Alabama, 395 U.S. 238 (1969). While a guilty plea validly taken waives various pre-plea claims of error, there are at least eight exceptions to this rule. See A. AMSTERDAM, TRIAL MANUAL 5 FOR THE DEFENSE OF CRIMINAL CASES 195 (1988). Chief among the "issues that survive a plea of guilty are . . . (e) whether [the defendant] was adequately represented by counsel in connection with the plea . . . ." Id., citing Williams v. Kaiser, 323 U.S. 471 (1945); Tollett v. Henderson, 411 U.S. 258 (1973); Hill v. Lockhart, 106 S.Ct. 366 (1985).

POST CON RELIEF " BIBLIOGRAPHY " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " FAILURE TO GIVE CORRECT IMMIGRATION ADVICE AT PLEA
Jenny Roberts, Proving Prejudice, Post-Padilla, 54 HOWARD L. REV. 693 (2011).

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " PADILLA CLAIMS IN STATE COURTS " BIBLIOGRAPHY
Cesar Cuauhtmoc Garca Hernndez , When State Courts Meet Padilla: A Concerted Effort is Needed to Bring State Courts Up to Speed on Crime-Based Immigration Law Provisions, 12 LOYOLA J. OF PUBLIC INTEREST LAW 299 (2011) (state courts face a steep learning curve thanks to Padilla v. Kentucky).

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " CERT PETITION FILED IN SCOTUS
The first petition for writ of certiorari based on Padilla v. Kentucky, 130 S.Ct. 1473 (2010), has reached the U.S. Supreme Court. Emmanuel Morris v. Commonwealth of Virginia, No. 11---- (U.S. 2011). The petitioner, Emmanuel Morris, asks the Supreme Court to determine whether Padilla applies retroactively and whether Virginia may impose strict time and custody requirements on post-conviction relief such that individuals like Morris can find no state law mechanism through to raise Padilla claims. The Court has not yet considered whether it will agree to hear this case, but, as with all cases, the chances are slim given that the Court grants approximately one percent of the petitions it receives. No matter what the Court decides to do with Morris, the petition raises important issues that have already been percolating through state and federal courts and will continue to do so. As the petition explains, there is an ever-growing split in federal and state courts about whether Padilla applies retroactively. The petitions count is already outdated because courts continue to decide this issue on what seems to be a weekly basis. The petition also highlights the importance of state post-conviction procedures to potential Padilla claimants. Given that most criminal prosecutions occur in state courts, the procedural remedies and limitations available in these proceedings can make all the difference to someone allegedly denied the Sixth Amendment right to effective assistance of counsel. Morris case is an example of someone whose strong claim of having been denied effective assistance of counsel ran up against state limitations on post-conviction relief. Despite having his 1997 petit larceny conviction vacated by a Virginia lower court, the Virginia Supreme Court overturned that decision on the grounds that Morris did not meet the necessary requirements under state law. The Virginia Supreme Court held that the states writ of coram vobis is available only to correct errors of fact and ineffective assistance of counsel does not constitute an error of fact. Morris argues that the state supreme courts decision leaves him without a procedural mechanism through which to raise his ineffective assistance of counsel claim. In particular, he argues that he could not have met the custody requirement of the states habeas corpus law because he finished serving his year-long sentence long before Padilla was issued (in 1998, a full twelve years before Padilla) and for the same reason could not have met the habeas corpus two-year statute of limitations. Twenty-six states, the petition explains, have a custody requirement.

POST CON RELIEF " VIRGINIA " VEHICLES " HABEAS CORPUS IS THE SOLE WAY TO RAISE PADILLA INEFFECTIVENESS
Commonwealth v. Morris, 281 Va. 70, 705 S.E.2d 503 (Va. 2011) (state habeas was the exclusive vehicle to assert Padilla ineffectiveness claim in Virginia, so that petitioner who was no longer in custody and outside of the habeas filing deadline was unable to make Padilla claim in any forum).

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " PADILLA
Neufville v. State, 13 A.3d 607, 614 (RI 2011) (Counsel is not required to inform their clients that they will be deported, but rather that a defendants plea would make [the defendant] eligible for deportation.); quoting Padilla v. Kentucky, 130 S. Ct. 1473, 1483 (2010).

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " PADILLA
Neufville v. State, 13 A.3d 607, 614 (RI 2011)(dictum) (defendant with claim of ineffective assistance of counsel, under Padilla v. Kentucky, 130 S. Ct. 1473 (2010), probably cannot show prejudice if the defendant could have received a longer sentence at trial than was actually received by pleading guilty: when counsel has secured a shorter sentence than what the defendant could have received had he gone to trial, the defendant has an almost insurmountable burden to establish prejudice. . . . [The court was] satisfied that had Neufville proceeded to trial, he ran the risk of receiving a longer sentence than was imposed and therefore has failed to establish prejudice because of his counsels alleged ineffective assistance.); citing Rodrigues v. State, 985 A.2d 311, 317 (RI 2009). Note: There is virtually nothing about this decision that is correct. Its language on counsels duty to advise ignores Padillas clear holding that when the immigration consequences are clear, counsel must advise the defendant of them. Obviously, counsel must investigate the clients immigration status and research the immigration consequences before ascertaining whether they are clear. Then, counsel must inform the defendant of the results of his research. As to prejudice, it is true that the possibility of a longer sentence is one factor to use in evaluating prejudice, whether it would have been rational for the defendant to have rejected the plea bargain. For example, in a death penalty case, in which the defendant was offered a plea involving no custody, it would have been insane to reject the plea bargain. On the other hand, many times, counsels failure to make a counteroffer to plead to a non-deportable offense with the same punishment as the original offer would be highly prejudicial. Finally, certain defendants may choose to enter a plea to a greater offense, with a greater maximum, in order to avoid deportation, and it would be highly prejudicial not to try to do so. See People v. Bautista (2004) 115 Cal.App.4th 229, 8 Cal.Rptr. 3d 862.

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " PADILLA " COURT ADMONISHMENT
State v. Yahya, 2011 Ohio 6090 (Ohio Ct. App. 2011) (claim of ineffective assistance of counsel brought pursuant to Padilla v. Kentucky, 130 S. Ct. 1473 (2010), was sufficiently meritorious to require an evidentiary hearing to determine whether a motion to withdraw a guilty plea should be granted: courts general advice about potential immigration consequences did not prevent a showing of prejudice from counsels incorrect advice); distinguishing State v. Yazici, 2011 Ohio 583 (Ohio App. Ct. 2011); State v. Ikharo, 2011 Ohio 2746 (Ohio App. Ct. 2011) (defendant not prejudiced by Padilla error in failing to give advice concerning the immigration consequences of a plea because the trial court admonished her about the potential immigration consequences of conviction).

POST CON RELIEF - GROUNDS - INEFFECTIVE ASSISTANCE OF COUNSEL - FAILURE TO GIVE ACCURATE IMMIGRATION ADVICE PRIOR TO PLEA
Ex Parte Gonzalez, CR-395-08-J(1) (Tex. Dist. Ct. Aug. 9, 2010) (vacating LPRs conviction under Padilla v. Kentucky, 130 S. Ct. 1473 (2010), where defense counsel failed to inform the defendant that conviction constituted an aggravated felony, since a reading of the statute would have disclosed that information; informing client that conviction "may result in deportation," was insufficient). NOTE: This decision applied Padilla retroactively to a 2008 conviction.

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL
Ex Parte Gonzalez, No. CR-395-08-J(1), slip op. at 2 (Tex. Dist. Ct. Aug. 9, 2010) (where defense counsel advised her client that pleading guilty to a theft conviction may result in deportation, when in fact the theft conviction can readily be determined to be an aggravated felony by simply reading the plain and clear language of [INA 101(a)(43)(G),] 8 U.S.C. 1101(a)(43)(G), counsels failure to inform her client that the INA specifically commands removal for individuals convicted of an aggravated felony constituted constitutionally deficient representation).

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " STATE COURT DENIALS OF PADILLA CLAIMS
People v. Shao, 2010 WL 3235418, 2010 N.Y. Slip Op. 32113(U) (N.Y. Sup. Ct. 2010) (The defendants assertion that he was never informed of the immigration consequences of pleading guilty is refuted by the record.); People v. Mills, 28 Misc. 3d 1236(A), 2010 WL 3619858, *4 n.6 (N.Y. Crim. Ct. 2010) (explaining that defendant mischaracterizes the trial court record by alleging that his trial counsel advised him that a conviction would have adverse immigration consequences only if he left the country and attempted to re-enter which the reviewing court concluded was contradicted by the trial counsels statements memorialized in the transcript); People v. Valestil, 27 Misc. 3d 1234(A), 2010 WL 2367351, *2 (N.Y. Crim. Ct. 2010) (Defendant again fails to pass the first prong of the Strickland test, in that, there is no credible evidence that Defendants counsel was ineffective.); People v. Robles-Mejia, 27 Misc. 3d 1219(A), 2010 WL 1855762, **7 (N.Y. Sup. Ct. 2010) ([D]efendants averment is completely undermined"if not rendered perjurious"by his attorneys on-the-record statement during the course of the plea proceeding . . . .); People v. Baker, 2010 WL 2175691, 2010 N.Y. Slip Op. 31289(U) (N.Y. Sup. Ct. 2010) (The court finds that the defendants conclusory assertions . . . are both unsupported by any other evidence as well as being contradicted by a court record, namely the plea and sentence minutes, and that there is no reasonable possibility that such allegation is true.); Strozier v. United States, 991 A.2d 778, 788 (D.C. 2010) (explaining that a hearing is not required on an ineffective assistance of counsel claim where the motion is based on palpably incredible claims or a number of other reasons) (quoting Joyner v. United States, 818 A.2d 166, 174 (D.C. 2003)); Gibson v. Commr, 986 A.2d 303, 307 n.2 (Conn. App. Ct. 2010) (noting that the trial court denied certain allegations of ineffective assistance of counsel because [the petitioner] had not presented any credible evidence in support of those allegations.); Hightower v. State, 698 S.E.2d 312, 317 (Ga. 2010) (quoting Robinson v. State, 586 S.E.2d 313 (2003)) (noting that trial courts make credibility determinations regarding claims of ineffective assistance of counsel).

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " VIOLATION BY MERELY REFERRING CLIENT TO IMMIGRATION ATTORNEY
People v. Garcia, 907 N.Y.S.2d 398, 400 n.3, 405 (N.Y. Sup. Ct. 2010) (New York trial court found counsel violated the duty to advise under Padilla, where the defendant requested immigration advice, where the defense attorney merely suggested that the defendant speak to an immigration attorney).

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL
People v. Bennett, 903 N.Y.S.2d 696, 702 (N.Y. Crim. Ct. 2010) (court found deficient performance, under Padilla, where attorney gave three conflicting bits of advice: that there were no immigration consequences, that he didnt think there were any, or that there was a possible immigration consequence).

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL
Rampal v. Rhode Island, 2010 WL 1836782 (R.I. Super. Ct. Apr. 2010) (concluding that a Padilla claim arising from a situation in which defense counsel gave no immigration advice constituted constitutionally deficient representation).

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL
People v. Garcia, 907 N.Y.S.2d 398, 403 (N.Y. Sup. Ct. 2010) (concluding that a Padilla claim arising from a situation in which defense counsel gave no immigration advice constituted constitutionally deficient representation).

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL
State v. Limarco, 235 P.3d 1267, 2010 WL 3211674, *5 (Kan. App. 2010) (granting an evidentiary hearing to determine whether defense counsel provided any immigration advice).

POST-CONVICTION " GROUNDS " INEFFECTIVE ASSISTANCE -- PADILLA
A gathering of materials related to Padilla v. Kentucky may be found at www.padillacentral.com, including cases, pleadings, journal articles, retroactivity issues, state by state analysis, critiques, updates, CLE seminars and the like.

POST CON RELIEF"GROUNDS"INEFFECTIVE ASSISTANCE OF COUNSEL"PADILLA
State v. Nunez-Valdez, 200 N.J. 129 (2009) (defense counsel rendered ineffective assistance of counsel when he gives false or affirmatively misleading advice concerning deportation consequences of a guilty plea, and defendant shows he would not have entered the guilty plea if he had received accurate information).

POST CON RELIEF"GROUNDS"INEFFECTIVE ASSISTANCE OF COUNSEL
Vermont v. Brillon, 129 S.Ct. 1283, 1287 (2009) (Assigned counsel, just as retained counsel, act on behalf of their clients, and delays sought by counsel are ordinarily attributable to the defendants they represent. For a total of some six months of the time that elapsed between Brillon's arrest and his trial, Brillon lacked an attorney. The State may be charged with those months if the gaps resulted from the trial court's failure to appoint replacement counsel with dispatch. Similarly, the State may bear responsibility if there is a breakdown in the public defender system.). NOTE: While delay in the criminal proceedings caused by ineffectiveness of individual counsel is not attributable to the state under Brillon, counsel can still argue that it is attributable to the state where the ineffectiveness of counsel was caused by a breakdown in the public defender system: If the IAC was failure to give immigration advice, and the public defender system failed to train its attorneys in immigration consequences, failed to implement a protocol for giving that advice, or counsel can point to some systemic failing, then counsel still has an interesting argument under Brillon. Thanks to Dawn Siebert.

POST-CON - GROUNDS - INEFFECTIVE ASSISTANCE - NORTH CAROLINA
Chernez-Viteri v. U.S., __ F.Supp.3d __, 2008 WL 2945443 (Unpublished) (W.D.N.C. Jul. 25, 2008) ("This Court finds that the possibility of deportation or permanent exclusion from the United States were areas of great concern to Petitioner and that absent the erroneous legal advice that he received concerning this issue, he would have rejected the plea offer and proceeded to trial. As such, Petitioner has established the prejudice required for an ineffective assistance of counsel claim in that absent counsel's errors, there is a "reasonable probability" that Petitioner would not have accepted the plea agreement and entered a guilty plea.")

POST CON RELIEF - GROUNDS - INEFFECTIVE ASSISTANCE - FAILURE TO ADVISE
Rob A. Justman, The Effects Of AEDPA And IIRIRA On Ineffective Assistance Of Counsel Claims For Failure To Advise Alien Defendants Of Deportation Consequences Of Pleading Guilty To An "Aggravated Felony," 2004 Utah Law Review 701 (2004).

POST CON RELIEF - GROUNDS - INEFFECTIVE COUNSEL - IMMIGRATION CONSEQUENCES
Ostroff, Jamie. Comment. Are immigration consequences of a criminal conviction still collateral? How the California Supreme Court's decision in re Resendiz leaves this question unanswered. (In re Resendiz, 19 P.3d 1172, Cal. .2000.) 32 Sw. U. L. Rev. 359-382 (2003).

POST CON RELIEF"GROUNDS"INEFFECTIVE ASSISTANCE OF COUNSEL"REMEDIES
In Kimmelman v. Morrison (1986), 477 U.S. 365, 379, the United States Supreme Court ruled that "the Constitution constrains our ability to allocate as we see fit the costs of ineffective assistance. The Sixth Amendment mandates that the State bear the risk of constitutionally deficient assistance of counsel. (See also Alvernaz v. Ratelle (S.D. Cal. 1993), 831 F.Supp. 790, 798, applying this rule to a California state court case.) The defendant "is entitled to be put in the position he would have been in had the constitutional error never occurred in the first place . . . . To do otherwise would penalize [the defendant] for the faulty advice that he received from his lawyer. [Citation.]" (United States v. White (W.D.N.Y. 2005), 371 F. Supp. 2d 378, 385.) "Ineffective assistance of counsel can take many forms and perhaps because of that, courts have broad discretion in fashioning the appropriate remedy to protect a defendant whose Sixth Amendment rights have been violated by virtue of receiving ineffective assistance of counsel. [Citations.]" (White, supra, at 384.) The Ninth Circuit has said that "the remedy for counsel's ineffective assistance should put the defendant back in the position he would have been in if the Sixth Amendment violation had not occurred. (United States v. Blaylock (9th Cir. 1994), 20 F.3d 1458, 1468.) "Under Kimmelman, even if one might perceive that the government's competing interest might be infringed by requiring that the original offer be reinstated, a contrary result would impermissibly shift the risk of ineffective assistance of counsel from the government to Blaylock. (Blaylock, supra, at 1469 [fn. omitted].) Thanks to Jason Cox.

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " PADILLA RETROACTIVITY " FLORIDA
The Florida state courts are now split on the question whether Padilla v. Kentucky is retroactively applicable to cases on collateral review. See Flores v. State, 57 So.3d 218, 220 (Fla.App. 4 Dist. Jul 14, 2010); Barrios-Cruz v. State, 2011 WL 2278819 (Fla.App. 2 Dist. Jun 10, 2011); Hernandez v. State, 2011 WL 1262148, (Fla.App. 3 Dist. Apr 6, 2011). The Florida Supreme Court is likely to grant review and resolve the retroactivity question. Thanks to Joe Beeler.

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " PADILLA
Santos-Sanchez v. United States, 130 S. Ct. 2340 (April, 2010) (Hennepin County District Court File No. 27-CR-09-45135) (vacating Sanchos-Sanchez v. United States, 548 F.3d 327, 331-32 (5th Cir. 2008), which denied coram nobis relief based on a claim that petitioner received ineffective assistance by his counsel's failure to accurately advise him of the immigration consequences of his guilty plea, and remanding the case to the Fifth Circuit for further consideration under Padilla, making Padilla retroactively available to Santos-Sanchez on collateral review); see Santos-Sanchez v. United States, 381 Fed. Appx. 419, 2010 WL 2465080 (5th Cir. June 15, 2010) (on remand from Supreme Court, the Fifth Circuit also applied Padilla retroactively, stated that Padilla abrogated the Fifth Circuits previous holding that defense counsel was not constitutionally obligated to advise Santos-Sanchez of the possible deportation consequences of his plea, and vacated the district court's denial of the petition for a writ of error coram nobis).

PRACTICE ADVISORY " GUILTY PLEA " SAMPLE FACTUAL BASIS " PAULUS DEFENSE
Criminal defense counsel can seek to offer a factual basis in a controlled substance case that will not establish the nature of the substance sufficiently to trigger deportation as a result of involving a drug on the federal controlled substances list, by the following procedure: (1) Draft a safe factual basis statement, for example: At ___ p.m., on Month, Day, Year, at Address, in the county of Ventura, California, Mr. Defendant possessed [or possessed for sale] a controlled substance prohibited under Health and Safety Code sec. 11377 [or 11378]. (2) Counsel can state this factual basis on the record at the new plea, and ask the defendant, Isnt that correct? (3) If the prosecution objects, counsel can argue (or submit a short memorandum) that naming the drug is unnecessary to avoid plea. People v. Guy (1980) 107 Cal. App. 3d 593, 601. (4) Counsel can ask the court to accept the plea and rule the oral factual basis statement is sufficient under People v. Holmes (2002) 32 Cal. 4th 432. It is safest to refuse to stipulate to the accuracy of any factual basis stated by the DA, or to a factual basis contained in the police report or preliminary hearing transcript, or other document. Counsel can point out: Your Honor, as you know, the police version many times differs from the defendants version of the facts, and therefore we are unable to stipulate to the accuracy of the [police report][px transcript][prosecutors version], but we hereby offer to admit the truth of the following factual basis.

BIBLIOGRAPHY - CRIMINAL IMMIGRATION LAW " OVERVIEW
Yolanda Vazquez, Advising Noncitizen Defendants on the Immigration Consequences of Criminal Convictions, 20 Berkeley La Raza Law Journal 31, 31-48 (2010).

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " FAILURE TO GIVE ACCURATE IMMIGRATION ADVICE " RETROACTIVITY OF PADILLA
The Supreme Courts retroactivity analysis, in Teague v. Lane, does not apply in state court post-conviction proceedings. See Danforth v. Minnesota, 552 U.S. 264, 282, 128 S. Ct. 1029, 169 L. Ed. 2d 859 (2008) (stating that Teague "does not in any way limit the authority of a state court, when reviewing its own state criminal convictions, to provide a remedy for a violation that is declared 'nonretroactive' under Teague."); Denisyuk v. State, 30 A.3d 914 (2011);

PADILLA RETROACTIVITY
In state court, post-conviction counsel may confront an argument that Padilla is not retroactive as to pleas that were entered prior to March 31, 2010, the date Padilla was decided. Counsel can still make three arguments: 1. Padilla is an "old" rule; it is an application of the familiar Strickland v. Washington 1984 rules on ineffective assistance of counsel to a new set of facts. Two state courts of last resort (Maryland and Massachusetts) have held that Padilla is "old" and applies retroactively. 2. Counsel can argue that state courts are not bound to follow Teague, which applies only to federal habeas corpus cases. Check out the state retroactivity principles in your state. 3. Finally, counsel can argue that even if Padilla is a new rule, it applies retroactively to similarly situated defendants (those in state collateral proceedings). See Immigration Defense Project, Proposed Amicus Brief, People v. Andrews, available on www.ImmigrantDefenseProject.org.

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " PADILLA
Two-and-a-half years after pushing the Supreme Court to change the face of crImmigration law, Jos Padilla convinced Kentuckys intermediate appellate court to vacate his conviction. Padilla v. Kentucky, No. 2011-CA-000553-MR, slip op. (Ky. Ct. App. Sept. 28, 2012) (Dixon, Moore, and Thompson, JJ.).

POST CON RELIEF " NEW JERSEY " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " PADILLA
Annot., Construction and Application by State Supreme Courts of Supreme Court's Ruling in Padilla v. Kentucky, 130 S. CT.1473, 76 L. Ed. 2d 284 (2010), That Defense Counsel Has obligation to Advise Defendant That Entering Guilty Plea Could Result in Deportation, 74 A.L. R. 6th 373 (2012); see generally Dorothy A. Harbeck et al., The Impact of Padilla v. Kentucky on the Immigration Courts: Does the Potential for Vacating a Criminal Plea Effect Removal/Deportation Proceedings?, 1 ST. JOHNS J. INTL & COMP. L. 48 (2011).