Wendy Wayne writes: "Today, the SJC held that the duty of defense counsel to accurately advise noncitizens clients of immigration consequences, as announced in Padilla v. Kentucky, is retroactive under Massachusetts common law for convictions obtained after April 1, 1997. The SJC also found a separate duty to properly advice noncitizen defendants under article 12 of the Massachusetts Declaration of Rights. In Commonwealth v. Clarke, 460 Mass. 30 (2011), the SJC held that Padilla was not a "new rule" under Teague retroactivity analysis and found it to be retroactive to 1997; however, in Chaidez v. U.S., 133 S.Ct. 1103 (2013), the U.S. Supreme Court disagreed and found Padilla to be a new rule and thus not retroactive. Subsequent to Chaidez, the SJC took this case sua sponte from the Appeals Court to determine whether, despite the Supreme Court's ruling, Padilla was retroactive under Massachusetts law. This decision therefore restores the viability of Massachusetts Rule 30 motions based on ineffective assistance of counsel for failure to properly advise about immigration consequences for convictions obtained after April 1, 1997. Huge thanks are in order to Laura Mannion Banworth, original postconviction counsel and fantastic appellate co-counsel in this case, as well as Sejal Zota and Dan Kesselbrenner of the National Immigration Project, Todd Pomerleau and Sarah Unger on behalf of MACDL, Professor Christopher Lasch of the University of Denver Sturm College of Law, and Professors David Siegel and Laurence Friedman of New England School of Law for filing brilliant and persuasive amicus briefs in this case. We plan to send out a practice advisory in the next few weeks with additional information about the ramifications of this case. In the meantime, please feel free to contact us with any questions." - Commonwealth v. Sylvain, Sept. 13, 2013.
Director, Immigration Impact UnitCommittee for Public Counsel Services21 McGrath HighwaySomerville, MA 02143Tel: 617-623-0591 Fax: email@example.com