Glad to be wrong: Supreme Court rules immigrant/deportee did not have effective assistance of counsel

Images: Justice Stevens - Cubs fan; Justice Anthony Kennedy

Back in September I predicted that the U.S. Supreme Court would reject the argument that Jose Padilla, an alien and Vietnam veteran,  received ineffective assistance of counsel because his lawyer improperly advised him  him that he would not face deportation if he pled guilty to a Kentucky drug distribution charge:

I predicted the answer would be 

"NO [Even if defendant's attorney failed to tell immigrant Vietnam Vet and marijuana dealer that he faced deportation as a consequence of his guilty plea, that failing was collateral to guilt or innocence and is not comprehended by the 6th Amendment right to effective assistance of counsel.]"

As it happened only Justice Antonin Scalia  (joined by Thomas, J.)  took that position:

"The Sixth Amendment guarantees the accused a lawyer“for his defense” against a “criminal prosecutio[n]”—not for sound advice about the collateral consequences of conviction. For that reason, and for the practical reasons set forth in Part I of JUSTICE ALITO’s concurrence, I dissent from the Court’s conclusion that the Sixth Amendment requires counsel to provide accurate advice concerning the potential removal consequences of a guilty plea."

Instead the Court's opinion declared:

We agree with Padilla that constitutionally competent counsel would have advised him that his conviction for drug distribution made him subject to automatic deportation. Whether he is entitled to relief depends on whether he has been prejudiced, a matter that we do not address.

Justice John Paul (we're going to miss you) Stevens placed an affirmative duty on counsel - at least in clear cases like this - to advise a defendant of the consequences of a guilty plea.  He was joined by Justices Kennedy, Breyer, Ginsburg and Sotomayor.  In dramatic language the majority declares:

The severity of deportation—“the equivalent of banishment or exile,” Delgadillo v. Carmichael, 332 U. S. 388, 390–391 (1947)—only underscores how critical it is for counsel to inform her noncitizen client that he faces a risk of deportation.

A concurring opinion by Justice Alito  (joined by C.J. Roberts) lamented that the "half-way" affirmative duty to warn of clear immigration consequences left a troublesome gray area.

The decision shows again the power of Justice Anthony Kennedy.  Had he joined Alito and Roberts we would have had a four justice plurality without an affirmative duty of counsel to give the client advice about the "risk of deportation".


UPDATE
Jack Chin and Margaret Love have posted this piece on SSRN explaining that the implications of the affirmative duty of a criminal defense lawyer to warn of the immigration consequences of a criminal conviction will inform plea bargaining and grounds in the 6th Amendment right to counsel a  duty to counsel criminal defendants regarding collateral consequences of conviction.