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Is the Supreme Court About to Limit Habeas Relief Under Padilla?

By Buck Files

Last June, the United States Court of Appeals for the Sixth Circuit held that a non-citizen defendant could not establish prejudice resulting from his lawyer’s deficient performance in advising him that he would not be subject to deportation if he pleaded guilty to a drug offense and affirmed the district court’s denial of Lee’s § 2255 motion to vacate his conviction and sentence. Lee v. United States, 825 F.3d 311 (6th Cir. 2016) [Circuit Judges Norris, Batchelder and Sutton (Opinion by Batchelder)]. See also Lee v. United States, (W.D. Tenn. Mar. 20, 2014), not reported in F. Supp.3d, 2014 WL 1260388.

In December, the Supreme Court granted certiorari in Lee to determine whether overwhelming evidence of guilt can preclude prejudice from a lawyer’s deficient performance about the deportation consequences of a guilty plea. Lee v. United States, 2016 WL 4944484 (December 15, 2016). In deciding this issue, the Supreme Court will resolve a conflict between the Circuits.

This is the first case with a Padilla issue that I have looked at since 2010. Out of curiosity, I did three quick searches on WestLaw and found that 3,634 federal cases and 2,111 state cases (including 231 from Texas courts), in the past seven years, have cited Padilla v. Kentucky, 130 S.Ct. 1473 (2010).

For immigration lawyers, Padilla was a financial boon. Criminal lawyers began to light up their telephones to ask, “If my client pleads guilty, is he going to get deported?” Even before Padilla, we relied on the advice of Richard Fischer, an immigration lawyer from Nacogdoches who has a state wide reputation as a guru on these issues – and we continue to do so.
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