Padilla v. Kentucky: Overcoming Teague's 'Watershed' Exception to Non-Retroactivity

Abstract

In 2010, the Supreme Court issued a landmark decision in Padilla v. Kentucky, holding that defense attorneys have an affirmative obligation to advise noncitizens about the deportation consequences of a guilty plea. The new rule announced in Padilla seems to have “mark[ed] a major upheaval in Sixth Amendment law,” which stands to profoundly impact the overlap between immigration and constitutional criminal procedure.

The Padilla decision has paved the way for an influx of habeas corpus petitions filed by individuals seeking to vacate their convictions based on Padilla’s Sixth Amendment standard. The vast majority of these petitions have sought to apply the Padilla standard retroactively to convictions that became final before the Supreme Court decided Padilla. Unfortunately for these petitioners, the retroactivity doctrine set out by Teague v. Lane bars retroactive application of the vast majority of “new rules” announced by the Supreme Court. Lower courts have struggled to determine whether Padilla announced a “new rule” or an “old rule,” and this threshold determination has been outcome-determinative in every case ruling on Padilla’s retroactivity. Courts have systematically ignored the possibility that Padilla announced a “new rule” that nevertheless qualifies for retroactivity under Teague’s narrow exception for “watershed” rules of criminal procedure.

This article will analyze Teague’s application to Padilla-based claims, and will argue that Padilla announced a new rule of criminal procedure that nonetheless deserves retroactive effect. In light of Padilla’s tremendous influence on noncitizens’ constitutional rights, it seems possible that the courts have finally encountered the first new rule that qualifies under Teague’s seemingly insurmountable watershed exception.

Keywords: Padilla v. Kentucky, Teague v. Lane, Retroactivity, Habeas Corpus, Sixth Amendment, Immigration, Deportation, Guilty Plea, Ineffective Assistance of Counsel