In state court, post-conviction counsel may confront an argument that Padilla is not retroactive as to pleas that were entered prior to March 31, 2010, the date Padilla was decided. Counsel can still make three arguments:

1. Padilla is an "old" rule; it is an application of the familiar Strickland v. Washington 1984 rules on ineffective assistance of counsel to a new set of facts. Two state courts of last resort (Maryland and Massachusetts) have held that Padilla is "old" and applies retroactively.

2. Counsel can argue that state courts are not bound to follow Teague, which applies only to federal habeas corpus cases. Check out the state retroactivity principles in your state.

3. Finally, counsel can argue that even if Padilla is a new rule, it applies retroactively to similarly situated defendants (those in state collateral proceedings).

See Immigration Defense Project, Proposed Amicus Brief, People v. Andrews, available on www.ImmigrantDefenseProject.org.