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St. Louis Immigration Attorney Argues Padilla's Retroactivity at Minnesota Court of Appeals

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St. Louis immigration attorney James Hacking argued a case at the Minnesota Court of Appeals regarding the retroactivity of the U.S. Supreme Court's decision in Padilla v. Kentucky.  In Padilla, the Supreme Court held that a non-citizen is entitled to effective assistance of counsel, as guaranteed by the Sixth Amendment, and that effective assistance requires the attorney to advise the non-citizen of the immigration consequences of a guilty plea in the criminal context.

We represent a young man who pled guilty to two counts of witness tampering in Rochester, Minnesota, in 2003.  He was sentenced to probation and work release, which he completed without incident.  In 2010, ICE officials arrested him and initiated deportation proceedings.  We went back to the sentencing court in Rochester and asked the court to set aside our client's guilty plea because his attorneys failed to advise him that he would be deported as the result of his guilty plea.  The sentencing court ruled in our favor and set aside our client's guilty plea.

The State of Minnesota appealed to the Minnesota Court of Appeals.  The issues were fully briefed and oral argument was yesterday in Rochester.  The State argued that Padilla was not to be applied retroactively, but we pointed out that the Minnesota Court of Appeals had already ruled that it was to be applied retroactively.  The State argued that our client had not brought his motion to set aside the plea in a timely manner, but the Court of Appeals had already ruled that the clock does not start ticking on a motion to set aside until the defendant could have known of the negative impact, i.e., deportation.  Finally, the State argued that the performance of our client's attorneys was to be judged by standards in effect in 2003, not today.  But, once again, we pointed out that the Court of Appeals had already decided that, because effective assistance of counsel is a constitutional right, that the standard is the same throughout time.

The Court took the case under advisement and should rule in a few months.

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