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The Champion

March 2013 , Page 43 

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Informal Opinion

By Jeffrey L. Fisher and Kendall Turner

The Retroactivity of Padilla After Chaidez v. United States

On March 31, 2010, the Supreme Court held in Padilla v. Kentucky that a criminal defendant receives ineffective assistance of counsel when her lawyer fails to advise her that a guilty plea may trigger deportation.1 Anyone whose conviction had not become final before that date was automatically entitled to the benefit of the Court’s holding.2 But what about people whose convictions became final before Padilla? On Feb. 20, 2013, the Court ruled in Chaidez v. United States that Padilla’s holding does not — at least as a general matter — apply retroactively to people with such convictions.3 

But Chaidez’s holding is not as broad or absolute as it may sound. Three overlapping categories of defendants may still benefit from the retroactive application of Padilla: (1) defendants seeking relief in timely filed first postconviction proceedings; (2) defendants who received affirmative misadvice (as opposed to no advice) conc

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