You May Be Able to Vacate Your Kentucky Conviction Under Padilla
If you are a non-citizen whose Kentucky criminal conviction is now causing immigration consequences you didn’t understand at the time of plea, you may be eligible for post-conviction relief. The Supreme Court’s decision in Padilla v. Kentucky established a constitutional right to accurate immigration advice from criminal defense counsel. When that right was violated, convictions can sometimes be vacated. Whether your conviction is from Louisville, Lexington, or anywhere in Kentucky, Clark + Harris handles Padilla-based post-conviction relief.
The Padilla Framework
Under Padilla v. Kentucky, 559 U.S. 356 (2010), criminal defense counsel have a Sixth Amendment duty to advise non-citizen clients about the immigration consequences of pleading guilty. Where consequences are “clear” — such as automatic deportation for aggravated felony drug distribution — counsel must provide specific advice. Where consequences are “unclear,” counsel must at least advise that immigration consequences may follow and that the client should seek immigration counsel.
The Two-Prong Ineffective Assistance Test
To prevail on a Padilla claim, a petitioner must show both:
- Deficient performance: Counsel failed to meet the Padilla advice standard — either failing to advise at all, providing affirmatively wrong advice, or failing to provide the specific advice the clear consequences required
- Prejudice: A reasonable probability that but for counsel’s deficient performance, the petitioner would not have pleaded guilty and would have insisted on trial or pursued a different disposition
RCr 11.42 Motions in Kentucky
Kentucky state post-conviction relief is primarily pursued through RCr 11.42 motions. These motions allow a defendant to challenge a conviction based on ineffective assistance of counsel or other constitutional errors. Padilla-based claims are pursued through RCr 11.42 in Kentucky state court.
Timing Requirements
Kentucky’s 3-year limitations period for RCr 11.42 motions begins running from the date the judgment becomes final. However, when the motion is based on facts the petitioner couldn’t reasonably have discovered within the limitations period, the clock can sometimes be tolled. Immigration consequences that weren’t apparent at the time of plea — or that changed because of later ICE enforcement action — may support tolling arguments.
Federal Section 2255 Motions
For federal convictions, post-conviction relief is sought through 28 U.S.C. § 2255 motions. The one-year limitations period under § 2255(f) begins running from the date the conviction becomes final — though specific tolling and equitable exceptions may apply.
Demonstrating Padilla Prejudice
The prejudice element of a Padilla claim is often the most contested. The Supreme Court’s decision in Lee v. United States, 582 U.S. 357 (2017), held that a non-citizen defendant can demonstrate prejudice even when the case against him was strong, if the record supports that he would have rejected the plea to avoid deportation. Lee has made Padilla prejudice findings more achievable.
Evidence supporting prejudice includes:
- Long-term U.S. residence
- U.S. citizen spouse and children
- Steady employment and community ties
- Strong ties to the United States versus weak ties to the country of origin
- Willingness to accept longer prison time to avoid deportation
What Padilla Relief Looks Like
A successful Padilla motion results in the conviction being vacated. The underlying charges may be renegotiated or retried. For non-citizens, the goal is typically to reach a new disposition that avoids the immigration consequences of the original plea.
Contact Clark + Harris for Padilla Post-Conviction Relief
If your Kentucky criminal conviction is causing immigration consequences and you didn’t receive proper advice at the time of plea, Clark + Harris can evaluate whether Padilla relief may be available.
Call 859-474-0001 today for a confidential consultation.