Under Strickland, a court first determines whether counsel's representation fell below an objective standard of reasonableness. Then the court asks whether there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. The first prong--constitutional deficiency--is necessarily linked to the practice and expectations of the legal community. Although this is only a guide this standards may be a valuable measure of the prevailing professional norms of effective representation, especially as this standard has been adapted to deal with the intersection of modern criminal prosecutions and immigration law.
Petitioner Padilla, a lawful permanent resident of the United States for over 40 years, faces deportation after pleading guilty to drug-distribution charges in Kentucky. In post-conviction proceedings, he claims that his counsel not only failed to advise him of this consequence before he entered the plea, but also told him not to worry about deportation since he had lived [**1476] in this country so long. He alleges that he would have gone to trial had he not received this incorrect advice. The Kentucky Supreme Court denied Padilla post-conviction relief on the ground that the Sixth Amendment's effective-assistance-of-counsel guarantee does not protect defendants from erroneous deportation advice because deportation is merely a “collateral” consequence of a conviction.
Does the Sixth Amendment’s effective-assistance-of-counsel guarantee protect defendants from erroneous deportation advice?
The Supreme Court held that the distinction between collateral and direct consequences was ill-suited to the deportation context, so advice regarding deportation was not categorically removed from the ambit of the Sixth Amendment. The Court posited that the counsel's alleged failure to correctly advise defendant of the deportation consequences of his guilty plea amounted to constitutionally deficient assistance under prevailing professional norms, as the consequences could easily have been determined from reading the removal statute. However, whether defendant was entitled to relief depended on whether he could demonstrate prejudice, a matter for the state courts to consider in the first instance.