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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 seek favorable 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.
A conviction creates a predictable risk to an immigration petition or application. A motion to vacate the plea seeks to remove the conviction that creates that risk. An immigration lawyer should advise the client on any pending petition, application, or interview while the motion is pending. Disclosure of the old case, and questions about the arrest and the underlying allegations, can also add risk to a pending application.
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. For a plea whose immigration consequence is clear and easily determined, defense counsel must specifically advise the client that the plea will result in deportation. The consequence is clear and easily determined, for example, for a non-citizen who accepts a continuance without a finding (CWOF) on a charge of possession of cocaine with intent to distribute and becomes deportable under 8 U.S.C. § 1227(a)(2)(B)(i).
Some immigration consequences are not clear because the analysis requires application of the categorical approach or because the law is genuinely unsettled. The immigration consequence of a CWOF on a domestic violence charge is often unclear, because only some forms of Massachusetts assault and battery qualify as a crime of domestic violence under 8 U.S.C. § 1227(a)(2)(E)(i).
For a plea with an unclear immigration consequence, 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 applies to a CWOF with an admission to sufficient facts. Under 8 U.S.C. § 1101(a)(48)(A), a continuance without a finding (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 has no immigration consequences provided constitutionally deficient advice under Padilla. See Criminal Convictions for Immigrants and Visa Holders.
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. The defendant seeks that relief through a motion for a new trial under Massachusetts Rule of Criminal Procedure 30(b).
Under the standard for relief that the SJC established, the defendant must show (1) that counsel’s performance was deficient under Padilla, and (2) that the deficient performance was prejudicial. Prejudice means a reasonable probability that the defendant would not have entered the plea if counsel had provided accurate immigration advice.
Under Clarke, the defendant must at least assert that the defendant would have rejected the plea and insisted on going to trial. The defendant does not need to prove that the criminal case would have resulted in a more favorable outcome at trial.
The defendant must also convince the judge that a decision to reject the plea bargain would have been rational under the circumstances. The defendant can meet that burden by showing an available, substantial defense, a reasonable probability of a plea bargain without those immigration consequences, or special circumstances showing that the defendant placed, or would have placed, particular emphasis on immigration consequences.
A defendant with close 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 persuasive showing of prejudice. For that defendant, the immigration consequences were severe, but the potential criminal penalty was light 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. The Commonwealth can, however, raise the defendant’s delay in seeking relief as a factor bearing on prejudice, particularly when the defendant has been in removal proceedings for an extended period without seeking to vacate the conviction.
The motion must be supported by the following.
- 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 defendant can pursue the motion without an affidavit from prior counsel, but the defendant’s own affidavit must be specific and credible.
- Documentation of the immigration consequence, such as the deportation order, the notice to appear in removal proceedings, or the visa denial. The documentation must establish that the conviction is in fact producing the adverse immigration consequence about which counsel did not advise the defendant.
- 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
A judge who allows the Rule 30(b) motion vacates the plea or CWOF admission and restores the case to the position it was in before the plea was entered. The defendant is no longer convicted of the offense. The immigration consequence of the vacated conviction is eliminated. The Commonwealth then has the option to proceed to trial on the original charge. The conviction must be vacated on a legally recognized basis and not merely for the purpose of eliminating an immigration consequence.
In a Padilla motion, the legally recognized basis is ineffective assistance of counsel. 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.
After the vacatur, the criminal case is pending again. Serpa Law Office handles the criminal defense from vacatur through trial or resolution. In the reopened case, defense counsel must account for the immigration consequences of any proposed disposition, including any amended charge, so that the defendant does not immediately enter a new plea that creates an immigration consequence. See Immigration Consequences of Massachusetts Criminal Charges.
Circumstances in Which a Padilla Motion Is and Is Not Available
Available. A Padilla motion is available to a non-citizen defendant whose guilty plea, plea of nolo contendere, or CWOF admission constitutes a federal immigration conviction.
Prior defense counsel must have failed to advise the defendant of the specific immigration consequence or must have affirmatively misadvised the defendant, for example by telling the defendant that a CWOF is not a conviction. For a claim that counsel failed to give specific advice, the immigration consequence must also have been clear enough under controlling law at the time of the plea that competent counsel should have advised the defendant of that consequence. Counsel still had to warn the defendant that the plea may carry a risk of adverse immigration consequences when the consequence was unclear.
Not available. A Padilla motion is generally not available in four situations. The first is a case in which the defendant received accurate immigration advice and chose to accept the plea with knowledge of the consequences. The second is a conviction obtained after a jury trial rather than by plea. The third is a case in which the conviction became final on or before April 1, 1997.
In Commonwealth v. Sylvain, 466 Mass. 422 (2013), the Supreme Judicial Court held that a defendant whose conviction became final after April 1, 1997, may challenge the conviction on Padilla grounds even if the plea preceded the Padilla decision.
In Commonwealth v. Mercado, 474 Mass. 80 (2016), the Supreme Judicial Court extended that rule back to April 24, 1996, for convictions of offenses for which a 1996 federal statute eliminated discretionary relief from deportation.
The fourth is a case in which 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 judge who allows a Padilla motion vacates the Massachusetts conviction. The vacatur removes the immigration consequence of that specific conviction. The vacatur does not automatically result in termination of removal proceedings, restoration of a visa, or resolution of the underlying immigration case. Removal proceedings continue independently.
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 the following.
- 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.
Frequently Asked Questions About Padilla Motions in Massachusetts
What is a Padilla motion?
A Padilla motion is a motion for a new trial under Massachusetts Rule of Criminal Procedure 30(b) asking the judge to vacate a guilty plea, a plea of nolo contendere, or an admission to sufficient facts on a continuance without a finding because defense counsel failed to advise a noncitizen client of the immigration consequences of the plea. The name comes from Padilla v. Kentucky, 559 U.S. 356 (2010), in which the Supreme Court held that the Sixth Amendment right to effective assistance of counsel requires that advice. The Supreme Judicial Court applied Padilla in Commonwealth v. Clarke, 460 Mass. 30 (2011). A judge who allows the motion vacates the plea and restores the case to the position it was in before the plea.
What did Padilla v. Kentucky hold?
In Padilla v. Kentucky, 559 U.S. 356 (2010), the Supreme Court held that the Sixth Amendment requires a defense attorney to advise a noncitizen client of the specific immigration consequences of a guilty plea before the plea is entered, and that deportation is so severe a result of a criminal plea that failing to advise of it is constitutionally deficient performance under Strickland v. Washington, 466 U.S. 668 (1984). Where the immigration consequence is clear and easily determined, counsel must tell the client that the plea will result in deportation. Where the consequence is unclear, because the categorical approach must be applied or the law is unsettled, counsel must warn that the plea may have adverse immigration consequences and recommend consulting an immigration attorney.
What is a Padilla advisement?
The advice a defense lawyer must give a noncitizen client before any plea or admission. It has two forms. For a plea whose immigration consequence is clear and easily determined, such as a continuance without a finding on possession of cocaine with intent to distribute, which makes the client deportable under 8 U.S.C. § 1227(a)(2)(B)(i), counsel must specifically advise that the plea will result in deportation. For a plea whose consequence is unclear, such as a continuance without a finding on a domestic violence charge, where only some forms of Massachusetts assault and battery qualify as a crime of domestic violence, counsel must advise that the plea may have adverse immigration consequences and recommend consultation with an immigration attorney. Omitting either kind of advice is deficient performance.
Does Padilla apply to a CWOF?
Yes. Under 8 U.S.C. § 1101(a)(48)(A), a continuance without a finding is a conviction for federal immigration purposes because it rests on an admission to sufficient facts and carries probationary conditions, even though the Massachusetts court enters no guilty finding and later dismisses the case. The Padilla obligation therefore applies to the admission behind a CWOF exactly as it applies to a guilty plea. A defense attorney who told a noncitizen client that a CWOF is not a conviction and has no immigration consequences gave constitutionally deficient advice, and that misadvice supports a Rule 30(b) motion to vacate the admission under Commonwealth v. Clarke, 460 Mass. 30 (2011).
What is Commonwealth v. Clarke?
Commonwealth v. Clarke, 460 Mass. 30 (2011), is the Supreme Judicial Court decision applying Padilla v. Kentucky in Massachusetts. The court held that a defendant who entered a guilty plea or a continuance without a finding without being advised of the immigration consequences may seek to withdraw the plea through a motion for a new trial under Mass. R. Crim. P. 30(b). The defendant must show two things: that counsel’s performance was deficient under Padilla, and that the deficiency was prejudicial, meaning a reasonable probability that the defendant would not have entered the plea with accurate advice. The defendant must at least assert that the defendant would have rejected the plea and gone to trial, and must show that doing so would have been rational.
How do you prove prejudice on a Padilla motion?
The defendant must assert that the defendant would have rejected the plea and insisted on trial, and must convince the judge that rejecting the plea would have been rational under the circumstances. The defendant does not need to prove that a trial would have ended more favorably. Under Commonwealth v. Clarke, 460 Mass. 30 (2011), the defendant can meet the burden by showing an available, substantial defense; a reasonable probability of a plea bargain without those immigration consequences; or special circumstances showing that the defendant placed, or would have placed, particular emphasis on immigration consequences. A long-term lawful permanent resident with close family in the United States and a minor charge the Commonwealth might not have tried presents a persuasive showing.
Is there a deadline to file a Padilla motion in Massachusetts?
No fixed deadline. A motion for a new trial under Mass. R. Crim. P. 30(b) may be filed at any time in the court where the plea was entered. The Commonwealth may, however, point to the defendant’s delay in seeking relief as a factor bearing on prejudice, particularly when the defendant has been in removal proceedings for an extended period without moving to vacate the conviction. Under Commonwealth v. Sylvain, 466 Mass. 422 (2013), a defendant whose conviction became final after April 1, 1997, may bring a Padilla claim even if the plea came before the Padilla decision, and Commonwealth v. Mercado, 474 Mass. 80 (2016), extended that date back to April 24, 1996, for offenses for which a 1996 federal statute eliminated discretionary relief from deportation.
What do you need to file a Padilla motion?
Four things support the motion. First, an affidavit from the defendant describing what advice prior counsel gave before the plea, specifically whether immigration consequences were discussed and what counsel said. Second, an affidavit from prior defense counsel, if obtainable; counsel who gave deficient advice sometimes decline, and the motion can proceed without one if the defendant’s own affidavit is specific and credible. Third, documentation of the immigration consequence, such as the removal order, the notice to appear, or the visa denial, showing that the conviction is in fact producing the harm. Fourth, a showing of a plausible defense to the underlying charge, not proof of innocence, but enough to show that a rational defendant with full information might have contested the case.
What happens if a Padilla motion is granted?
The judge vacates the plea or the CWOF admission and restores the case to where it stood before the plea. The defendant is no longer convicted of the offense, and the deportation risk from that conviction is eliminated. The Commonwealth may then proceed to trial on the original charge, so the criminal case is pending again, and defense counsel must weigh the immigration consequences of any new disposition, including an amended charge, so that the defendant does not immediately enter a new plea with the same result. The vacatur must rest on a legally recognized basis, here ineffective assistance of counsel; under current First Circuit law, a vacatur entered only to avoid an immigration consequence may not be recognized as eliminating the federal conviction.
When can a Padilla motion not be brought?
Generally in four situations. First, when the defendant received accurate immigration advice and accepted the plea knowing the consequences. Second, when the conviction followed a jury trial rather than a plea. Third, when the conviction became final on or before April 1, 1997, or, for offenses for which a 1996 federal statute eliminated discretionary relief, on or before April 24, 1996, under Commonwealth v. Sylvain, 466 Mass. 422 (2013), and Commonwealth v. Mercado, 474 Mass. 80 (2016). Fourth, when the defendant cannot show prejudice because the Commonwealth’s case was overwhelming and no rational defendant would have rejected the plea. For a claim that counsel failed to give specific advice, the consequence must also have been clear under the law at the time of the plea.
Does vacating the conviction end removal proceedings?
No. A judge who allows a Padilla motion vacates the Massachusetts conviction, but the vacatur does not automatically terminate removal proceedings, restore a visa, or resolve the immigration case. Removal proceedings continue independently, and the immigration judge must be advised of the vacatur. Serpa Law Office handles the Massachusetts criminal proceedings, from the Rule 30(b) motion through trial or resolution of the reopened case; the immigration case requires separate representation by immigration counsel experienced in removal defense. Attorney Serpa coordinates with the client’s immigration counsel throughout so that the criminal defense strategy and the immigration defense strategy are aligned.
Where do you file a Padilla motion in Massachusetts?
In the court that originally heard the case and accepted the plea. A Rule 30(b) motion on a District Court or Boston Municipal Court plea is filed in that court, including any of the eight divisions of the Boston Municipal Court and the Quincy, Cambridge, Dedham, Woburn, Waltham, and other District Courts of Eastern Massachusetts. A Superior Court conviction is challenged by a Rule 30(b) motion filed in the Superior Court that entered the judgment. A judge of that court hears the motion, may hold an evidentiary hearing at which the defendant testifies, and the Commonwealth may oppose it, including by calling prior defense counsel as a witness if counsel’s account of the advice differs from the defendant’s.
Related Pages
- Immigration Consequences of Massachusetts Criminal Charges, Main Page
- Criminal Convictions for Immigrants and Visa Holders
- 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
- Massachusetts Felonies vs. Misdemeanors
Newly available forensic evidence can itself support a motion for postconviction relief. In Commonwealth v. Watson, SJC-13850 (July 9, 2026), the Supreme Judicial Court held that G. L. c. 278A permits postconviction digital forensic analysis of cell phones. The firm discusses the decision in its post on Commonwealth v. Watson and postconviction digital forensic analysis.
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 Road, Suite 400A.
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