Just a few days ago, in Chavez v. State, 364 Or 654 (2019), the Oregon Court of Appeals issued an important ruling for individuals with pre-2010 criminal convictions that resulted in adverse immigration consequences their lawyers never warned them about. Such clients typically file post-conviction relief (PCR) petitions relying on Padilla v. Kentucky, the 2010 Supreme Court decision holding that the Sixth Amendment  requires lawyers to advise defendants about the immigration consequences of a guilty plea. As we’ve already seen, PCR petitions complaining of constitutionally deficient representation from long ago are not necessarily time-barred. However, there is still a question of whether pre-2010 Padilla claims are barred on retroactivity grounds. In Saldana-Ramirez v. State, 255 Or. App. 602 (2013), the Oregon Court of Appeals held that the Padilla decision did NOT apply retroactively under Oregon law because it was not retroactive under federal law (see Chaidez v. U.S., 568 US 342 (2013)). “[F]ederal retroactivity principles,” the court wrote, “govern whether a new federal rule applies retroactively in [Oregon] court.”

In Chavez, appellate counsel raised a novel argument: that Oregon’s Post-Conviction Act explicitly gives retroactive effect to all constitutional decisions. That argument was unfortunately rejected and Chavez’s trial-level loss was affirmed. The Court suggested a different path forward, however:

“In State v. Fair, 263 Or 383, (1972), this court recognized that it was not bound to apply all new federal constitutional rules retroactively in post-conviction proceedings . . . . we are free to choose the degree of retroactivity . . . which we believe appropriate to the particular rule under consideration, so long as we give federal constitutional rights at least as broad a scope as the United States Supreme Court requires.” (internal citations omitted)

Perhaps a more narrowly tailored argument will carry the day. Could Padilla be partially retroactive under Oregon law? Stay tuned.