Motions for a New Trial Based on Ineffective Assistance of Counsel Under Padilla v. Kentucky and Commonwealth v. Clarke

Scope of representation. Serpa Law Office represents non-citizen defendants on the criminal side of Massachusetts court proceedings only. Attorney Serpa uses his knowledge of immigration consequences to fashion the best available outcomes in criminal cases for non-citizen clients. Attorney Serpa does not represent clients in immigration court, before the Board of Immigration Appeals, or in removal proceedings. For representation in removal proceedings or before USCIS, clients should retain experienced immigration counsel. For complex matters requiring coordination between criminal defense and immigration counsel, Attorney Serpa works with the client’s immigration attorney to ensure that the criminal defense strategy accounts for all immigration consequences at every stage of the case.

The Constitutional Right to Immigration Advice Before a Plea

Under Padilla v. Kentucky (559 U.S. 356, 2010), the Sixth Amendment right to effective assistance of counsel requires a defense attorney to advise a non-citizen client of the specific immigration consequences of a guilty plea before the plea is entered. The Supreme Court held that deportation is a sufficiently severe consequence of a criminal plea that the failure to advise of it constitutes constitutionally deficient performance under Strickland v. Washington (466 U.S. 668, 1984).

The Padilla obligation has two components. When the immigration consequence of a plea is clear and easily determined, as it is when a non-citizen accepts a CWOF on a domestic violence charge and becomes deportable under 8 U.S.C. § 1227(a)(2)(E)(i), defense counsel must specifically advise the client that the plea will result in deportation. When the immigration consequence is not clear, because the analysis requires application of the categorical approach or because the law is genuinely unsettled, counsel must advise the client that the plea may have adverse immigration consequences and recommend consultation with an immigration attorney. A failure to provide either type of advice, depending on the clarity of the consequence, is constitutionally deficient performance under Padilla.

The Padilla obligation extends to a CWOF with an admission to sufficient facts. Under 8 U.S.C. § 1101(a)(48)(A), a CWOF is a federal conviction for immigration purposes because it involves an admission to sufficient facts and the imposition of probationary conditions. A defense attorney who advised a non-citizen client that a CWOF is “not a conviction” and that it carries no immigration consequences provided constitutionally deficient advice under Padilla. See: The CWOF and Immigration: Why a CWOF Is a Federal Conviction.

Commonwealth v. Clarke: The Massachusetts Application of Padilla

The Massachusetts Supreme Judicial Court applied Padilla in Commonwealth v. Clarke (460 Mass. 30, 2011). The SJC held that a defendant who entered a guilty plea or CWOF without being advised of immigration consequences by defense counsel may seek to withdraw the plea through a motion for a new trial under Massachusetts Rule of Criminal Procedure 30(b). The SJC established the standard for relief: the defendant must show (1) that counsel’s performance was deficient under Padilla, and (2) that the deficient performance was prejudicial, meaning there is a reasonable probability that, had counsel provided accurate immigration advice, the defendant would not have entered the plea.

Under Clarke, prejudice is assessed subjectively. The defendant does not need to prove that the criminal case would have resulted in a more favorable outcome had it gone to trial, only that the defendant, as an individual, would have made a different decision about the plea had the immigration consequences been known. A defendant with strong family ties in the United States, a long-term lawful permanent residence, and a conviction on a minor charge that the Commonwealth might not have taken to trial presents a strong prejudice showing: the immigration stakes were high, and the criminal stakes were low enough that the defendant would rationally have chosen to contest the charge rather than accept a plea with deportation consequences.

The Rule 30(b) Motion: Procedure and Requirements

A motion to withdraw a plea based on Padilla ineffectiveness is filed under Massachusetts Rule of Criminal Procedure 30(b) in the court where the plea was originally entered. There is no fixed time limit for filing a Rule 30(b) motion, but delay in seeking relief, particularly when the defendant has been in removal proceedings for an extended period without seeking to vacate the conviction, can be raised by the Commonwealth as a factor bearing on prejudice.

The motion must be supported by:

• An affidavit from the defendant describing what advice defense counsel provided before the plea, specifically whether any immigration consequences were discussed and what counsel said.
• An affidavit from prior defense counsel, if obtainable, describing what immigration advice was given. Counsel who provided deficient advice sometimes decline to submit affidavits. The motion can proceed without one, but the defendant’s affidavit must be specific and credible.
• Documentation of the immigration consequence, the deportation order, the notice to appear in removal proceedings, or the visa denial, establishing that the conviction is in fact producing the adverse immigration consequence the defendant was not advised of.
• A showing of a plausible defense to the underlying charge, not proof that the defendant is innocent, but enough to establish that a rational defendant with full information might have chosen to contest the case. Available defenses to the original charge are identified and articulated in the motion.

The motion is heard by a judge of the court where the original plea was entered. The judge may hold an evidentiary hearing at which the defendant testifies. The Commonwealth has the opportunity to oppose the motion, including by calling prior defense counsel as a witness if counsel’s account of the advice given differs from the defendant’s.

What Happens If the Motion Is Granted

If the Rule 30(b) motion is granted, the plea or CWOF admission is vacated and the case is restored to the position it was in before the plea was entered. The defendant is no longer convicted of the offense, and the immigration consequence of the vacated conviction is eliminated. The Commonwealth then has the option to proceed to trial on the original charge. The vacated conviction must be on a legally recognized basis, ineffective assistance of counsel under Padilla, and not merely for the purpose of eliminating an immigration consequence. A vacatur on a purely immigration-motivated basis without a legitimate legal ground may not be recognized as eliminating the federal immigration consequence under current First Circuit law.

Once the conviction is vacated, the case proceeds as a live criminal matter. Serpa Law Office handles the criminal defense from vacatur through trial or resolution. The criminal defense strategy going forward must account for the immigration consequences of any proposed disposition, including any amended charge, so that the vacatur is not followed immediately by a new immigration-triggering plea. See: Immigration Consequences of Massachusetts Criminal Charges.

When a Padilla Motion Is and Is Not Available

Available. A Padilla motion is available when: the defendant is a non-citizen; the defendant entered a guilty plea, a plea of nolo contendere, or a CWOF admission; the plea or admission constitutes a federal immigration conviction; prior defense counsel did not advise the defendant of the specific immigration consequence or affirmatively misadvised the defendant (e.g., told the defendant that a CWOF is not a conviction); and the immigration consequence was clear enough under controlling law at the time of the plea that competent counsel should have advised of it.

Not available. A Padilla motion is generally not available when: the defendant received accurate immigration advice and chose to accept the plea with knowledge of the consequences; the conviction was obtained after a jury trial rather than by plea; prior counsel’s failure to advise occurred before Padilla was decided in 2010 and the law at the time did not clearly require immigration advice (though this ground has been narrowed by subsequent case law); or the defendant cannot demonstrate prejudice because the Commonwealth’s case was overwhelming and no rational defendant would have rejected the plea regardless of the immigration consequence.

Coordination With Immigration Counsel

A successful Padilla motion vacates the Massachusetts conviction and removes the immigration consequence of that specific conviction. It does not automatically terminate removal proceedings, restore a visa, or resolve the underlying immigration case. Removal proceedings continue independently, and the immigration judge must be advised of the vacatur. Serpa Law Office handles the Massachusetts criminal proceedings. The immigration case requires separate representation by immigration counsel experienced in removal defense. Attorney Serpa coordinates with the client’s immigration counsel throughout the Rule 30(b) process to ensure that the criminal defense strategy and the immigration defense strategy are aligned.

Courts Where Padilla Motions Are Filed in Massachusetts

A Rule 30(b) motion is filed in the court that originally heard the case. The courts where Serpa Law Office files Padilla motions include:

• Boston Municipal Court (BMC), all eight divisions.
• Quincy District Court
• Cambridge District Court
• Dedham District Court
• Woburn District Court
• Waltham District Court
• All other District Courts in Eastern Massachusetts. See: Massachusetts District Courts.

Superior Court convictions may also be subject to Padilla relief through a Rule 30(b) motion filed in the Superior Court that entered the judgment.

Related Pages

• Immigration Consequences of Massachusetts Criminal Charges, Main Page
• Motions for a New Trial Under Padilla v. Kentucky (559 U.S. 356, 2010)
• The CWOF and Immigration: Why a CWOF Is a Federal Conviction
• Crimes of Moral Turpitude and Aggravated Felonies in Massachusetts Cases
• OUI and Immigration in Massachusetts
• Domestic Violence Charges and Immigration (8 U.S.C. § 1227(a)(2)(E))
• CWOF, Pretrial Probation, and Diversion in Massachusetts FAQs
• Arraignment in the Massachusetts Trial Court
• Clerk-Magistrate Hearings in Massachusetts
• Criminal Defense for Licensed Professionals in Massachusetts
• College and University Student Criminal Defense

Contact Serpa Law Office at 617.936.0201 for a confidential consultation about a Padilla motion or a post-conviction challenge to a Massachusetts guilty plea or CWOF. Boston office: 20 Park Plaza #400A. Quincy office: 500 Victory Rd., Suite 400A. Available 24 hours a day.