EIGHT COURTS HOLD PADILLA RETROACTIVE
United States v. Obonaga, No. 07-CR-402, 2010 U.S. Dist. LEXIS 63872, 2010 WL 2629748 (E.D.N.Y. June 24, 2010); United States v. Hubenig, No. 6:03-mj-040, 2010 U.S. Dist. LEXIS 80179, 2010 WL 2650625 (E.D.Cal. July 1, 2010); United States v. Chaidez, 730 F. Supp. 2d 896, 2010 WL 3184150 (N.D.Ill. 2010); People v. Bennett, 28 Misc. 3d 575, 903 N.Y.S.2d 696 (N.Y. Crim. Ct. May 26, 2010); People v. Garcia, 29 Misc. 3d 756, 907 N.Y.S.2d 398 (N.Y. Sup. Aug. 26, 2010); People v. Ramirez, 29 Misc. 3d 1201[A], 2010 NY Slip Op 51661[U], 2010 WL 3769208 [N.Y. Crim. Ct. 2010]; People v. Ortega, 29 Misc. 3d 1203[A], 2010 NY Slip Op 51679[U], 2010 WL 3786254 [N.Y. Crim. Ct. 2010].

Lower Courts of Ninth Circuit

CAL POST CON " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " AFFIRMATIVE MISADVICE OF IMMIGRATION CONSEQUENCES
People v. Perez, ___ Cal.App.4th, ___ Cal.Rptr.3d ___, 2015 WL 332048 (4 Dist. Jan. 27, 2015) (trial court abused its discretion in denying defendant's timely motion to withdraw his guilty plea, pursuant to Penal Code 1018, for ineffective assistance of counsel, based on affirmative misadvisement about the immigration consequences of the conviction, where the evidence was in favor of granting the motion, but the trial court gave no reason for denying the motion); see In re Resendiz (2001) 25 Cal.4th 230, 239, 105 Cal.Rptr.2d 431, 19 P.3d 1171. The court stated: Based on the record in this matter, including the superior court's failure to state any reason for denying defendant's motion to withdraw his guilty plea, we conclude the court abused its discretion. Had the court denied relief because the court found the declarants lacked credibility, for example, we would have accepted the ruling. (People v. Hamlin (2009) 170 Cal.App.4th 1412, 1465, 89 Cal.Rptr.3d 402 [appellate court must defer to trial court on credibility of declarants]; Whitlock v. Foster Wheeler, LLC (2008) 160 Cal.App.4th 149, 160, 72 Cal.Rptr.3d 369 [trial court entitled to believe one declarant over another].) Had the evidence been in dispute, we could have relied on the evidence supporting the court's decision to uphold the court's order denying defendant's motion even if the court summarily denied relief. But neither situation is present here. We remand the matter for further proceedings. This is not to say defendant is entitled to withdraw his guilty plea, but when the evidence is one-sided and the court's ruling is contrary to that evidence, [footnote omitted] an order denying relief should alert the reviewing court as to the reason(s) for such a ruling. A denial without any statement of a reason provides no reasonable basis for the denial. (Moran v. Oso Valley Greenbelt Assn. (2001) 92 Cal.App.4th 156, 160, 111 Cal.Rptr.2d 636.) (Id. at ___.) Cal Crim Def 20.43

CAL POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " AFFIRMATIVE MISADVICE OF IMMIGRATION CONSEQUENCES " PREJUDICE
People v. Perez, ___ Cal.App.4th ___, ___ Cal.Rptr.3d ___, 2015 WL 332048 (4 Dist. Jan. 27, 2015) (where defense counsel advised the defendant the plea would not result in his deportation, the fact that the court gave contrary advice does not mean defendant's counsel did not negate the effect of that advisement by telling defendant the advisement is wrong and his guilty plea would not require his deportation. (See In re Resendiz, supra, 25 Cal.4th at p. 235, 105 Cal.Rptr.2d 431, 19 P.3d 1171.) Cal Crim Def 20.43

CAL POST CON " VEHICLES " PENAL CODE 1018 " MOTION TO WITHDRAW PLEA " ARGUMENT
Counsel can argue that a motion to withdraw a plea, under Penal Code 1018, can be filed even years after the sentence was imposed, so long as imposition of sentence was suspended, because under those circumstances, no judgment has ever been entered, so the current motion is timely prior to judgment. Cal Crim Def 20.27

CAL POST CON " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " FAILURE TO ADVICE ON IMMIGRATION CONSEQUENCES " AFFIRMATIVE MISADVICE CLAIMS
Failure to advise claims remain alive for convictions that became final prior to Padilla in those jurisdictions with decisions to that effect, such as California, which had already held that failure to advise constituted ineffective assistance of counsel. People v. Soriano, 194 Cal.App.3d 1470 (1987). The same is true for failure to defend claims. People v. Barocio, 216 Cal.App.3d 99 (1989). The same is true of affirmative misadvice claims. In re Resendiz, 25 Cal.4th 230, 248, 105 Cal.Rptr. 2d 431 (2001). The fact that Padilla does not apply retroactively does not invalidate prior state decisions holding that failure to advise or affirmative misadvice constitute ineffective assistance of counsel.

Other

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).