Padilla Retroactivity in Maryland

Ah, a legal post.  Aren’t you all a-flutter.  Don’t lie.  I know you are, especially one that deals with Padilla and retroactivity.  Oh, and Maryland law.  Here it goes:

In February, the Maryland Court of Special Appeals issued a decision, Miller v. State, that said that it is indisputable that Padilla is not retroactive, meaning, that any cases that are final cannot be challenged under grounds explained in Padilla because Padilla is a new rule.  The general rule of thumb is this – if there is a new rule, it will not be retroactive.  Because who could possibly go back and change all those decision just because the Supreme Court issued a new rule?  It would probably impede the creation of new rules on behalf of criminal defendants (wait, is that why there haven’t been any new rules increasing the rights of the accused?  Hmmm. . . )  Anyway, if the Supreme Court is simply stating an old rule and saying that in the case of these facts, you apply the old rule, then it is retroactive.  The Maryland Court of Special Appeals seems to think that Padilla created a new rule.  Meaning, that before you didn’t have to tell your clients about deportation but now you do so it’s new.

Except that there is Strickland, and Strickland – the case which established the two-prong test for determining if counsel has been ineffective – has been around since 1984.  All Padilla did was say that immigration consequences are serious and the lawyer should tell you about them, but that the issue was still Strickland – was there error and was there prejudice.

I’ve read and re-read this decision, and I can’t wrap my brain around how the Court comes to it’s conclusion so I ask you, legal eagles, to help me out.  What is the ‘new rule’ that the Court talks about?  Is telling your clients about immigration consequences really a new rule?  Part of me thinks that the Court is sticking to their guns over this decision that came out just days before Padilla where they say that immigration consequences are collateral and, therefore, not of constitutional dimension.

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Posted in: Not Gulity No Way   |     |   4 Comments

4 Responses

  1. shg - April 15, 2011

    There's a guy I know down in Harris County, Texas, who actually wrote on this particular point. His name is Bennett. He write some good stuff once in a while. You might want to read him when you get a chance.

    Anyway, he wrote a post called "Law Geek: Retroactivity of Padilla v. Kentucky" that might be of interest to you.

  2. Mirriam Seddiq - April 15, 2011

    He did, but as it relates to the AEDPA and out of time federal writs, not as it relates to the Maryland Court of Special Appeals most recent decision declaring that it's not retroactive. Mark's post doesn't help me with understanding our court's reasoning, unfortunately.

  3. Anonymous - April 16, 2011

    The newness of a new rule almost always comes down to a question of defining the level of specificity. You could just as well say that nothing is a new rule, since the constitutional amendments that are cited as each rule's grounding have been around for centuries.

  4. Anonymous - May 28, 2011

    I'm writing an appellate brief on this issue as we speak for Oklahoma. Two months ago our trial judge fell in love with Miller, even though it was clearly a minority decision and appellate decisions are starting to drop like ripe fruit holding Padilla to be nothing more than Strickland doctrine – Campos in MN, Golding in TX, Bonilla in CA 9, Marroquin in USDC, SDTx. to name a few. If I had only known the back story of Miller maybe I could have dislodged him? Oh well – someone has to be first to the OKCCA.

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