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.