United States v. Hong, No. 10-6294 (10th Cir. 2011)
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Defendant Chang Hong sought a certificate of appealability from the Tenth Circuit to appeal the district court’s denial of his motion for post-conviction relief as untimely. He asserted claims of ineffective assistance of counsel, alleging his counsel failed to advise him of the immigration consequences of his guilty plea as required by "Padilla v. Kentucky." Defendant argued "Padilla" is a new rule of constitutional law that applies retroactively to cases on collateral review, making his motion timely. Upon review, the Tenth Circuit found that "Padilla" is a new rule of constitutional law, but it does not apply retroactively to cases on collateral review. Therefore, Defendant’s motion was untimely, and the Court concluded Defendant did not make a substantial showing of the denial of a constitutional right. Accordingly, the Court denied Defendant’s request for a COA and dismissed his appeal.
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FILED United States Court of Appeals Tenth Circuit September 1, 2011 PUBLISH Elisabeth A. Shumaker Clerk of Court UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 10-6294 CHANG HONG, Defendant - Appellant. ORDER Before O BRIEN, McKAY, and TYMKOVICH, Circuit Judges. This matter is before the court to amend, sua sponte, the Opinion issued originally in this appeal on August 30, 2011. The amendment is limited to adding a citation to Chaidez v. United States, ___ F.3d ___, 2011 WL 3705173 (7th Cir. Aug. 23, 2011). The clerk is directed to file the amended decision, which is attached to this order, nunc pro tunc to the original filing date. Entered for the Court, ELISABETH A. SHUMAKER Clerk of Court FILED United States Court of Appeals Tenth Circuit August 30, 2011 PUBLISH Elisabeth A. Shumaker Clerk of Court UNITED STATES COURT OF APPEALS TENTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 10-6294 CHANG HONG, Defendant-Appellant. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA (D.C. NO. CV-10-00978) Submitted on the brief *: Joan L. Lopez, Oklahoma City, Oklahoma, for Appellant. Jonathon E. Boatman, Assistant United States Attorney, Office of the United States Attorney, Oklahoma City, Oklahoma, for Appellee. Before O BRIEN, McKAY, and TYMKOVICH, Circuit Judges. * No brief was filed on behalf of the Plaintiff-Appellee pursuant to 10th Cir. R. 22.1(B). After examining the brief and the appellate record, this threejudge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument. TYMKOVICH, Circuit Judge. Chang Hong seeks to appeal the district court s denial of his motion for relief under 28 U.S.C. § 2255 as untimely. He asserted claims of ineffective assistance of counsel, alleging his counsel failed to advise him of the immigration consequences of his guilty plea as required by Padilla v. Kentucky, 130 S. Ct. 1473 (2010). Hong argues Padilla is a new rule of constitutional law that applies retroactively to cases on collateral review, making his § 2255 motion timely. We construe Hong s notice of appeal and opening brief as a request for a certificate of appealability (COA) to appeal the district court s order. Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), we find Padilla is a new rule of constitutional law, but it does not apply retroactively to cases on collateral review. Therefore, Hong s § 2255 motion was untimely, and we conclude Hong has not made a substantial showing of the denial of a constitutional right. Accordingly, we DENY Hong s request for a COA and DISMISS his appeal. I. Background Hong is a citizen of South Korea and was a permanent legal resident of the United States. In September 2007, he pleaded guilty to one count of conspiracy to possess with intent to distribute and to distribute ecstasy, marijuana, and 2 hydro-marijuana. In February 2008, he was sentenced to 37 months imprisonment and did not file a direct appeal. In August 2010, while in federal prison, Hong received a Notice to Appear from the United States Department of Homeland Security, which stated Hong was being placed in immigration removal proceedings. The notice asserted Hong was subject to removal from the United States because of his drug conspiracy conviction. See 8 U.S.C. § 1227(a)(2)(A)(iii) ( Any alien who is convicted of an aggravated felony at any time after admission is deportable. ), (a)(2)(B)(i) ( Any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of . . . the United States . . . relating to a controlled substance . . . is deportable. ). In September 2010, Hong filed a motion under 28 U.S.C. § 2255 seeking to vacate his conviction and sentence as well as to withdraw his guilty plea on the grounds of ineffective assistance of counsel. 2 Hong alleged his counsel failed to advise him of the immigration consequences of his guilty plea. In support, he cited Padilla v. Kentucky, 130 S. Ct. 1473 (2010), wherein the Supreme Court held that before a non-citizen criminal defendant enters a guilty plea, his counsel has a duty under the Sixth Amendment to inform him whether his plea carries a 2 Hong also requested, in the alternative, that the court grant a writ of coram nobis. The district court denied this alternative request, finding Hong was ineligible for such relief because he was still in custody. See United States v. Torres, 282 F.3d 1241, 1245 (10th Cir. 2002). Hong does not challenge this decision on appeal, and we do not address it. 3 risk of deportation. Waugh v. Holder, 642 F.3d 1279, 1283 (10th Cir. 2011) (quoting Padilla, 130 S. Ct. at 1486). On December 15, 2010, the district court denied Hong s § 2255 motion as untimely because (1) it was filed outside the one-year statute of limitations period under § 2255(f)(1), and (2) Padilla was not a new rule of constitutional law and did not apply retroactively to cases on collateral review, so § 2255(f)(3) did not provide the correct starting date for the statute of limitations. This appeal followed. Meanwhile, on December 28, 2010, Hong was released from federal prison after completing his sentence for drug conspiracy. 3 Due to an immigration detainer, Hong was transferred to the custody of United States Immigration and Customs Enforcement upon his release. He later appeared at an immigration removal hearing, and a removal order was entered against him on April 26, 2011. Hong did not appeal the removal order, and on June 28, 2011, he was removed from the United States. 3 Although Hong has completed his sentence and has been deported, his habeas petition challenging his conviction is not moot. See Prost v. Anderson, 636 F.3d 578, 582 n.3 (10th Cir. 2011) ( The Supreme Court has told us that a habeas petition challenging a conviction isn t mooted by a prisoner s release from incarceration because the Court is willing to presume that the fact of conviction has continuing collateral consequences. ) (quoting Spencer v. Kemna, 523 U.S. 1, 7 8 (1998)). Hong s drug conspiracy conviction renders him ineligible to receive a visa or for admission to the United States. See 8 U.S.C. § 1182(a)(2)(A)(I) ( [A]ny alien convicted of . . . a violation of (or a conspiracy or attempt to violate) any law . . . [of] the United States . . relating to a controlled substance . . . is inadmissible. ). 4 II. Discussion A defendant may not appeal the denial of a § 2255 motion unless we first issue a COA. 28 U.S.C. § 2253(c)(1)(B). We will issue a COA only when the defendant has made a substantial showing of the denial of a constitutional right. Id. § 2253(c)(2). To meet this burden, Hong must show that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further. Allen v. Zavaras, 568 F.3d 1197, 1199 (10th Cir. 2009) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). Hong fails to make this showing. A. Section 2255 Motions and Statute of Limitations A defendant must file a § 2255 motion within one year of the date his conviction became final. See § 2255(f)(1). Hong s conviction became final on February 29, 2008, but his § 2255 motion was filed over two years later, on September 10, 2010. Therefore Hong s § 2255 motion was untimely under § 2255(f)(1). Nonetheless, Hong argues his petition was timely under § 2255(f)(3). Under that provision, the one-year limitations period to file a § 2255 motion runs from the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review. Id. § 2255(f)(3). 5 Hong contends the Supreme Court s decision in Padilla created a new rule that applies retroactively for the purposes of § 2255(f)(3). Under his theory, his § 2255 motion is timely because Padilla was decided on March 31, 2010, and his § 2255 motion was filed within one year of that decision, on September 10, 2010. Hong is incorrect. Although Padilla establishes a new rule of constitutional law, under the Supreme Court s rubric for determining retroactivity established in Teague v. Lane, 489 U.S. 288 (1989), 4 Padilla does not apply retroactively to cases on collateral review. Therefore, § 2255(f)(3) does not 4 Although Teague arose in the context of a § 2254 petition and Hong s motion arises under § 2255, in accord with other circuits, we have held that Teague s nonretroactivity doctrine applies equally to habeas petitions brought under sections 2254 and 2255. Daniels v. United States, 254 F.3d 1180, 1194 (10th Cir. 2001) (en banc). While clearly bound by our prior en banc decision, we note the Supreme Court has never applied Teague to a § 2255 petition. See Danforth v. Minnesota, 552 U.S. 264, 269 n.4, 281 n.16 (2008) (noting the opinion does not consider whether Teague applies to cases under § 2255 but that lower federal courts have applied Teague to § 2255 motions and that much of the reasoning applicable to petitions under § 2254 is equally applicable to § 2255 motions); cf. Reina-Rodriguez v. United States, No. 08-16676, F.3d , 2011 WL 2465462, at *5 (9th Cir. June 22, 2011) ( [T]here is some doubt under current Supreme Court jurisprudence whether Teague applies to federal prisoners . . . who seek federal habeas relief. ); Duncan v. United States, 552 F.3d 442, 444 n.2 (6th Cir. 2009) ( It is not entirely clear that Teague s framework is appropriate for federal habeas petitions under 18 U.S.C. § 2255 because many of the comity and federalism concerns animating Teague are lacking. ); see also Valentine v. United States, 488 F.3d 325, 341 45 (6th Cir. 2007) (Martin, J., concurring in part and dissenting in part) (questioning the applicability of Teague in federal habeas cases); J. Thomas Sullivan, Danforth, Retroactivity, and Federalism, 61 O KLA . L. R EV . 425, 463 (2008) ( The . . . question deliberately left unanswered by the Danforth Court involves the application of the Teague retroactivity doctrine to post-conviction actions brought by federal defendants pursuant to 28 U.S.C. § 2255. ). 6 apply, and Hong s § 2255 motion was untimely under § 2255(f)(1). B. Retroactivity In Teague, and subsequent cases interpreting its analysis, the Supreme Court constructed and refined a three-step process to determine retroactivity. We apply it here to decide whether Padilla announced a new rule of constitutional law and whether it applies retroactively to Hong s conviction. Whorton v. Bockting, 549 U.S. 406, 416 (2007). We first must determine whether Hong s conviction was final before the Supreme Court s decision in Padilla. 5 Beard v. Banks, 542 U.S. 406, 411 (2004). Second, we assess whether the rule in Padilla is actually new, based on whether a court considering [Hong] s claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule [announced in Padilla] was required by the Constitution. O Dell v. Netherland, 521 U.S. 151, 156 (1997). Third, if we determine the rule in Padilla is new, we will apply it to Hong s conviction only if that new rule falls within either of the two narrow exceptions to nonretroactivity. Beard, 542 U.S. at 411; see Teague, 489 U.S. at 310 ( Unless they fall within an exception to the general rule, new constitutional rules 5 A conviction and sentence becomes final for the purposes of Teague when the availability of a direct appeal has been exhausted and the time for filing a petition for certiorari with the Supreme Court has elapsed or the Court has denied a timely petition for certiorari. United States v. Dago, 441 F.3d 1238, 1243 (10th Cir. 2006) (citing Caspari v. Bohlen, 510 U.S. 383, 390 (1994)). 7 of criminal procedure will not be applicable to those cases which have become final before the new rules are announced. ). We discuss the exceptions in more detail below. 1. Final Conviction Because Hong declined to file a direct appeal, his conviction became final 14 days after the district court entered judgment on February 29, 2008. See Fed. R. App. P. 4(b)(1)(A)(I) (giving a defendant 14 days after entry of judgment to file a notice of appeal). Padilla was decided more than two years later, on March 31, 2010. Hong s conviction was final before the Supreme Court s decision in Padilla. Therefore, we are left to determine whether Padilla announced a new rule of constitutional law and, if so, whether it falls within either of the Teague exceptions to the retroactivity bar. 2. New Rule Step two of the Teague analysis requires us to assess whether Padilla represents a new rule of constitutional law. While a closer question, we conclude Padilla is a new rule of constitutional law because it was not compelled by existing precedent at the time Hong s conviction became final. a. Padilla In Padilla, the Court considered whether defense counsel has an obligation to advise his client that a guilty plea would make him subject to automatic deportation. Jose Padilla had pleaded guilty to drug trafficking in Kentucky state 8 court, and as a lawful permanent resident of the United States, he was subject to virtually mandatory removal because of his drug conviction. Padilla sought state post-conviction relief from his guilty plea, alleging ineffective assistance of counsel. He argued he entered his guilty plea in reliance on his counsel s erroneous advice that the plea would not affect Padilla s immigration status. Ultimately, the Kentucky Supreme Court denied Padilla postconviction relief and held the Sixth Amendment s guarantee of effective assistance of counsel did not protect him from erroneous advice regarding collateral consequences of a conviction, such as deportation or removal. 6 The Supreme Court reversed and remanded the case. It found constitutionally competent counsel would have advised [Padilla] that his conviction for drug distribution made him subject to automatic deportation. Padilla, 130 S. Ct. at 1478. Before addressing Padilla s claims, the Court surveyed the development of federal immigration law and noted deportation or removal is now virtually inevitable for a vast number of noncitizens convicted of crimes. Id. (citation omitted). Because of this connection between conviction and removal, deportation is an integral part indeed, sometimes the most important part of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes. Id. (footnote omitted). Therefore, the Court 6 With changes in immigration law, came changes in nomenclature from deportation to removal. See Padilla, 130 S. Ct. at 1480 n.6. For our purposes, we treat the terms as interchangeable. 9 determined the importance of accurate legal advice for noncitizens accused of crimes has never been more important. Id. at 1480. The Court turned to Padilla s claims and considered whether his counsel rendered effective assistance as required by Strickland v. Washington, 466 U.S. 668 (1984). Before applying Strickland s familiar two-part test of deficient performance and prejudice, the Court first clarified that it had never applied a distinction between direct and collateral consequences to define the scope of constitutionally reasonable professional assistance required under Strickland. Padilla, 130 S. Ct. at 1481. The Kentucky Supreme Court had rejected Padilla s arguments because he claimed ineffective assistance with regard to collateral consequences of his plea deportation that the Kentucky Supreme Court ruled were outside the requirements of the Sixth Amendment. 7 The Supreme Court in Padilla stated the collateral versus direct distinction was not useful when considering a Strickland claim regarding the risk of deportation. Id. at 1482. Even though deportation proceedings are civil proceedings, based on the unique nature of deportation, they were nevertheless intimately related to the criminal process. Id. at 1481. This close connection to the criminal process made 7 In accord with many other state and federal courts, before Padilla we also held that deportation remains a collateral consequence of a criminal conviction, and counsel s failure to advise a criminal defendant of its possibility does not result in a Sixth Amendment deprivation. Broomes v. Ashcroft, 358 F.3d 1251, 1257 (10th Cir. 2004) abrogated by Padilla v. Kentucky, 130 S. Ct. 1473, 1481 n.9 (2010). 10 deportation uniquely difficult to classify as either a direct or collateral consequence. Id. at 1482. Rather than force deportation into one category, the Court concluded that Strickland applied to Padilla s claims because advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel. Id. Having determined Strickland applied, the Court then analyzed whether Padilla s counsel rendered assistance that fell below an objective standard of reasonableness. Prevailing professional norms long required defense counsel to advise their noncitizen clients of the risk of deportation, and with this, the Court stated it was not a hard case in which to find deficiency. Id. at 1483. Padilla s counsel could have consulted the removal statutes and easily determined Padilla s guilty plea would make his removal virtually mandatory. Instead, his counsel gave Padilla the false assurance that his plea would not affect his immigration status. While immigration consequences may have been clear in Padilla s case, the Court acknowledged immigration law is a complex subject matter. And in situations where the deportation consequences are unclear, defense counsel would still have a duty to advise a noncitizen client, but only the limited duty to advise him that pending criminal charges may have negative immigration consequences. But, as in Padilla s case, when the deportation consequence is truly clear . . . the duty to give correct advice is equally clear. Id. 11 In sum, the Supreme Court in Padilla held that the seriousness and severity of deportation as a consequence of a guilty plea makes it critical that defense counsel inform her client whether his plea carries a risk of deportation. Id. at 1486. Having distilled the Supreme Court s holding in Padilla, we turn to our Teague analysis and consider whether Padilla is a new rule that retroactively applies to cases on collateral review. b. New vs. Old Rule When the Supreme Court announces a rule, that rule s effect on a defendant s conviction will differ based on whether the rule is new or old and whether his case is pending on direct or collateral review. A new rule will generally apply only to criminal cases pending on direct review, while an old rule will apply to cases on both direct and collateral review. Whorton, 549 U.S. at 416 (citing Griffith v. Kentucky, 479 U.S. 314, 328 (1987)). The key question is whether a rule is old or new. The Supreme Court admits it has stated variously the formula for determining when a rule is new. O Dell, 521 U.S. at 156; see also United States v. Christensen, 456 F.3d 1205, 1207 (10th Cir. 2006) ( The term new rule is somewhat imprecise. ). 8 A rule is new within the meaning of Teague if it breaks new ground, imposes a new obligation on the States or the Federal 8 In some sense, every rule announced in a Supreme Court decision could be considered new if the Court had not previously ruled on the specific issue. But for the purposes of a Teague analysis, our inquiry is more limited. 12 Government, or was not dictated by precedent existing at the time the defendant s conviction became final. Graham v. Collins, 506 U.S. 461, 467 (1993) (quoting Teague, 489 U.S. at 301). Conversely, a rule is old if a court considering the defendant s claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule he seeks was required by the Constitution. O Dell, 521 U.S. at 156 (quotation and brackets omitted). When making this judgment we consider whether reasonable jurists could have differed as to whether a rule was compelled or dictated by existing precedent. Beard, 542 U.S. at 414. The new rule principle . . . validates reasonable, good-faith interpretations of existing precedents, . . . even if those good-faith interpretations are . . . contrary to later decisions. United States v. Price, 400 F.3d 844, 847 (10th Cir. 2005) (quoting Graham, 506 U.S. at 467). The inquiry recognizes that reasonable jurists may differ on the import of a Supreme Court decision. [T]he fact that a court says that its decision is within the logical compass of an earlier decision, or indeed that it is controlled by a prior decision, is not conclusive for purposes of deciding whether the current decision is a new rule under Teague. Butler v. McKellar, 494 U.S. 407, 415 (1990). While there can be no dispute that a decision announces a new rule if it expressly overrules a prior decision, it is more difficult . . . to determine whether [the Court] announce[s] a 13 new rule when a decision extends the reasoning of [its] prior cases. Graham, 506 U.S. at 467 (quoting Saffle v. Parks, 494 U.S. 484, 488 (1990)). With these principles in mind, we turn to Padilla. The starting point is whether Padilla represents a new rule or merely represents an application of the venerable Strickland rule to new facts. The central holding of Padilla is that defense counsel must inform her client whether his [guilty] plea carries a risk of deportation if those consequences are clear. 130 S. Ct. at 1486. Even if the consequences are not clear, defense counsel must still advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. Id. at 1483. The majority s opinion focused on whether Padilla s counsel provided representation that fell below an objective standard of reasonableness and citations to Strickland run throughout. Without doubt, Padilla is a Strickland case. While grounded in Strickland, we still conclude Padilla is a new rule of constitutional law. Before Padilla, most state and federal courts had considered the failure to advise a client of potential collateral consequences of a conviction to be outside the requirements of the Sixth Amendment. See Padilla, 130 S. Ct. at 1481 n.9 (collecting cases); see also Gabriel J. Chin & Richard W. Holmes, Jr., Effective Assistance of Counsel and the Consequences of Guilty Pleas, 87 C ORNELL L. R EV . 697, 699 (2002) ( [E]leven federal circuits, more than thirty states, and the District of Columbia have held that lawyers need not explain 14 collateral consequences [under the Sixth Amendment]. ). All of these courts including our own thought the rule in Padilla was not dictated or compelled by Court precedent. It goes without saying these are some of the reasonable jurists we must survey to determine if Padilla is a new rule. In addition to this precedent, when assessing whether a rule is new, we have also considered the concurring or dissenting views of other Justices in the case. For example, in Christensen, 456 F.3d at 1207, we examined whether Shepard v. United States, 544 U.S. 13 (2005), announced a new rule. We looked to Justice O Connor s dissent which stated the Court s rule was not compelled by statute or Court precedent and found it dispositive of whether Shepard announced a new rule of constitutional law. Christensen, 456 F.3d at 1208. We apply the same logic here for further guidance. Padilla, a 7-2 decision, generated both a strong concurrence and dissent. In a concurrence, Justice Alito (joined by Chief Justice Roberts) stated the Court s decision marks a major upheaval in Sixth Amendment law and noted the majority failed to cite any precedent for the premise that a defense counsel s failure to provide advice concerning the immigration consequences of a criminal conviction violated a defendant s right to counsel. Padilla, 130 S. Ct. at 1491 (Alito, J., concurring in judgment); see also id. at 1488 (noting the majority s dramatic departure from precedent ); id. at 1491 ( [T]he Court s view has been rejected by every Federal Court of Appeals to have considered the issue thus 15 far. ); id. at 1492 ( The majority seeks to downplay its dramatic expansion of the scope of criminal defense counsel s duties under the Sixth Amendment. ). Similarly, Justice Scalia in a dissent (joined by Justice Thomas), argued the Sixth Amendment right to counsel does not extend to advice about the collateral consequences of conviction and that the Court, until Padilla, had limited the Sixth Amendment to advice directly related to defense against criminal prosecutions. Id. at 1494 95 (Scalia, J., dissenting); see also id. at 1495 ( There is no basis in text or in principle to extend the constitutionally required advice regarding guilty pleas beyond those matters germane to the criminal prosecution at hand. ). We take the concurrence and dissent as support for our conclusion that reasonable jurists did not find the rule in Padilla compelled or dictated by the Court s prior precedent. We acknowledge those counter-arguments that Padilla is not a new rule that is, why a court would have felt compelled to apply Strickland to deportation consequences of a guilty plea. For example, Padilla did not overturn any of the Court s prior precedent and is grounded in Strickland. In addition, even before Padilla was decided, the Court had already recognized the importance of considering potential immigration consequences when entering into a plea agreement. See INS v. St. Cyr, 533 U.S. 289, 322 23 (2001). Despite these arguments, we think the better argument is that Padilla announced a new rule of constitutional law. While the Supreme Court had never 16 foreclosed the application of Strickland to collateral consequences of a conviction, it had never applied Strickland to them either. And lower courts had adhered to this direct versus collateral dichotomy. The departure from that longstanding legal distinction, and the application of Strickland to immigration consequences of a guilty plea, was an extension of Strickland into previously untread grounds. See Stephanos Bibas, Regulating the Plea-Bargaining Market: From Caveat Emptor to Consumer Protection, 99 C AL . L. R EV . 1117, 1118 (2011) ( Padilla v. Kentucky marks a watershed in the Court s approach to regulating plea bargains. ). We find a reasonable jurist at the time of Hong s conviction would not have considered Supreme Court precedent to compel the application of Strickland to the immigration consequences of a guilty plea. Indeed, we as a court did not feel so compelled prior to Padilla. In sum, we find Padilla announced a new rule of constitutional law. 9 We note one other circuit court to consider Padilla s retroactivity reached the opposite conclusion, finding Padilla followed directly from Strickland and 9 The Seventh Circuit recently reached the same conclusion. In Chaidez v. United States, No. 10-3623, 2011 WL 3705173, at *8 (7th Cir. Aug. 23, 2011), it concluded that Padilla established a new rule, finding that the narrow definition of what constitutes an old rule in Teague tips the scales toward a new rule. Another circuit court, in an unpublished decision, doubted Padilla applied retroactively. See United States v. Hernandez-Monreal, 404 F. App x 714, 715 n.1 (4th Cir. 2010) ( [N]othing in the Padilla decision indicates that it is retroactively applicable to cases on collateral review. ). See also Commonwealth v. Clarke, 949 N.E.2d 892 (Mass. 2011) (concluding Padilla did not apply a new rule but merely extended Strickland). 17 long-established professional norms and therefore was an old rule for Teague purposes. United States v. Orocio, No. 10-1231, F.3d , 2011 WL 2557232, at *7 (3d Cir. June 29, 2011). We disagree and believe Padilla marked a dramatic shift when it applied Strickland to collateral civil consequences of a conviction a line courts had never crossed before. The Third Circuit, while acknowledging deportation consequences never were considered within the scope of Strickland before Padilla, found that history unhelpful. Orocio, 2011 WL 2557232, at *4. Rather than rest its analysis on an incomplete approach, it concluded Padilla followed from the clearly established principles of Strickland. Id. at *4, *6. The case broke no new ground and was hardly novel based on the prevailing professional norms. Id. at *6 (quotation omitted). Padilla s application of Strickland was not new because defense counsel was long required to provide effective assistance regarding all important decisions that could affect the plea process, which included the immigration consequences of a guilty plea. Id. at *4. Padilla is best read as merely recognizing that a plea agreement s immigration consequences is the type of information a defendant would need when making important decisions about a plea bargain. Id. Therefore, [f]ar from extending the Strickland rule into uncharted territory, Padilla reaffirmed defense counsel s obligations to the criminal defendant during the plea process. Id. As discussed above, we disagree. Padilla extended the Sixth Amendment 18 right to effective counsel and applied it to an aspect of a plea bargain previously untouched by Strickland. See Padilla, 130 S. Ct. at 1491 (Alito, J., concurring in judgment) ( [T]he majority does not cite a single case, from this or any other federal court, holding that criminal defense counsel s failure to provide advice concerning the removal consequences of a criminal conviction violates a defendant s Sixth Amendment right to counsel. ); cf. Bibas, 99 C AL . L. R EV . at 1139 ( [T]he early signs are that Padilla was not a one-off decision but may have heralded the dawn of a new era. ). Padilla is a new rule of constitutional law not because of what it applies Strickland but because of where it applies collateral immigration consequences of a plea bargain. 3. Exceptions to the Retroactivity Bar Having determined Padilla represents a new rule of constitutional law, we move to step three of the Teague analysis and consider whether Padilla applies retroactively to cases on collateral review. 10 As a new rule of criminal procedure, 10 It is not readily apparent which court must declare that a new rule applies retroactively. We have held Teague s retroactivity analysis . . . determines whether the new rule is applicable to an initial motion for collateral habeas relief. Browning v. United States, 241 F.3d 1262, 1264 (10th Cir. 2001) (en banc). That is, we may apply Teague in the first instance and determine ourselves whether a new rule applies retroactively to initial habeas petitions. By contrast, for second or successive habeas petitions, a new rule is made retroactive to cases on collateral review only when the Supreme Court explicitly holds that the rule it announced applies retroactively to such cases. Bey v. United States, 399 F.3d 1266, 1268 (10th Cir. 2005). Other circuit courts have compared the language governing retroactivity in (continued...) 19 Padilla will apply retroactively only if it falls within one of the two narrow exceptions to the retroactivity bar outlined in Teague. We find Padilla does not fit within either Teague exception and therefore does not apply retroactively to cases, like Hong s, on collateral review. A new rule will apply retroactively to a final conviction only under very limited circumstances. Schriro v. Summerlin, 542 U.S. 348, 351 (2004). A new rule applies retroactively in a collateral proceeding only if (1) the rule is substantive, or (2) the rule is a watershed rule of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding. 11 Whorton, 10 (...continued) § 2255(f)(3) and § 2255(h)(2) to determine whether a circuit court may decide if a new rule applies retroactively to initial habeas petitions. Compare § 2255(f)(3) ( [T]hat right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review. ) with § 2255(h)(2) ( [A] new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court. ). Those courts have concluded they can because § 2255(f)(3) does not require that the initial retroactivity question be decided in the affirmative only by the Supreme Court. United States v. Thomas, 627 F.3d 534, 536 37 (4th Cir. 2010); see also Wiegand v. United States, 380 F.3d 890, 892 (6th Cir. 2004); Dodd v. United States, 365 F.3d 1273, 1278 (11th Cir. 2004) aff d 545 U.S. 353 (2005); United States v. Swinton, 333 F.3d 481, 486 87 (3d Cir. 2003); Fischer v. United States, 285 F.3d 596, 599 600 (7th Cir. 2002); United States v. Lopez, 248 F.3d 427, 432 (5th Cir. 2001). 11 Previously, the Supreme Court described the first Teague exception as applying to rules forbidding punishment of certain primary conduct or to rules prohibiting a certain category of punishment for a class of defendants because of their status or offense. Beard, 542 U.S. at 416. Recently, however, the Court explained [r]ules that fall within what we have referred to as Teague s first exception are more accurately characterized as substantive rules not subject to [Teague s] bar. Id. at 411 n.3 (quoting Schriro, 542 U.S. at 352 n.4). Padilla s rule does not implicate this category of rules, whether such rules are deemed (continued...) 20 549 U.S. at 416 (quotation and alteration omitted). A substantive rule is one that alters the range of conduct or the class of persons that the law punishes. 12 Schriro, 542 U.S. at 353. By contrast, a procedural rule regulate[s] only the manner of determining the defendant s culpability. 13 Id. The rule in Padilla is procedural, not substantive. It regulates the manner in which a defendant arrives at a decision to plead guilty. Thus, only the second Teague exception might apply here as a watershed rule of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding. Id. at 352. The exception is quite narrow, and since Teague, the Court has rejected every attempt to fit a case within the exception. See Whorton, 549 U.S. at 417 18 11 (...continued) substantive or procedural falling within Teague s first exception. Cf. United States v. Price, 400 F.3d 844, 848 n.2 (10th Cir. 2005). 12 New substantive rules generally apply retroactively because they necessarily carry a significant risk that a defendant stands convicted of an act that the law does not make criminal or faces a punishment that the law cannot impose upon him. Schriro, 542 U.S. at 352 (quoting Bousley v. United States, 523 U.S. 614, 620 (1998)) (other quotations omitted). Substantive rules include decisions that narrow the scope of a criminal statute by interpreting its terms, as well as constitutional determinations that place particular conduct or persons covered by the statute beyond the State s power to punish. Schriro, 542 U.S. at 351 52 (citation omitted). 13 New procedural rules, unlike new substantive rules, do not produce a class of persons convicted of conduct the law does not make criminal, but simply raise the potential that a defendant who was convicted under improper procedure may have been otherwise acquitted. Schriro, 542 U.S. at 352. Based on this more speculative connection to innocence, the Supreme Court gives retroactive effect to a very small set of procedural rules that implicat[e] the fundamental fairness and accuracy of the criminal proceeding as represented in Teague s second exception. Id. 21 (collecting cases). To surmount this watershed requirement, a new rule (1) must be necessary to prevent an impermissibly large risk of an inaccurate conviction, and (2) must alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding. Id. at 418 (quotations omitted). Elevating the standard even more, a showing that a new procedural rule is based on a bedrock right is insufficient because a new rule must itself constitute a previously unrecognized bedrock procedural element that is essential to the fairness of a proceeding. Id. at 420 21. The Supreme Court has repeatedly identified its decision in Gideon v. Wainwright, 372 U.S. 335 (1963) recognizing an indigent defendant s right to counsel as the only rule which, if Gideon had been decided after Teague, might have fallen within the second Teague exception. See Whorton, 549 U.S. at 418 19; Beard, 542 U.S. at 417 18. The Court has not hesitated to hold that less sweeping and fundamental rules [than Gideon] do not fall within Teague s second exception. Beard, 542 U.S. at 418; Steven W. Allen, Toward a Unified Theory of Retroactivity, 54 N.Y.L. S CH . L. R EV . 105, 128 (2009-2010) (noting Teague s second exception only relates to errors of the highest magnitude ). Applying this rubric here, we conclude Padilla did not announce a watershed rule of criminal procedure and does not fall within Teague s second exception to the retroactivity bar. Therefore, Padilla does not retroactively apply 22 to Hong s case on collateral review. Simply put, Padilla is not Gideon. Padilla does not concern the fairness and accuracy of a criminal proceeding, but instead relates to the deportation consequences of a defendant s guilty plea. The rule does not affect the determination of a defendant s guilt and only governs what advice defense counsel must render when his noncitizen client contemplates a plea bargain. Padilla would only be at issue in cases where the defendant admits guilt and pleads guilty. In such situations, because the defendant s guilt is established through his own admission with all the strictures of a Rule 11 plea colloquy Padilla is simply not germane to concerns about risks of inaccurate convictions or fundamental procedural fairness. Despite all this, Hong contends the Supreme Court did implicitly decide the issue of retroactivity in Padilla. We find Hong s argument unpersuasive. Nowhere in Padilla does the Supreme Court state even tangentially that its holding applies retroactively to cases on collateral review. Hong tacitly acknowledges this point but argues the Court s decision strongly implies Padilla applies retroactively. Aplt. Br. at 9. In Padilla, the Court acknowledged it gave serious consideration to the concerns that its ruling might undermine the finality of convictions by opening the floodgates to challenges of convictions obtained through guilty pleas. 130 S. Ct. at 1484. The Court allayed these concerns by noting the same concerns 23 were raised in prior Strickland cases. Those past decisions did not lead to a flood of cases, likely because [s]urmounting Strickland s high bar is never any easy task a defendant must show deficient representation as well as prejudice. Id. at 1485. The Court went on to conclude It seems unlikely that our decision today will have a significant effect on those convictions already obtained as the result of plea bargains. . . . Those who collaterally attack their guilty pleas lose the benefit of the bargain obtained as a result of the plea. Thus, a different calculus informs whether it is wise to challenge a guilty plea in a habeas proceeding because, ultimately, the challenge may result in a less favorable outcome for the defendant, whereas a collateral challenge to a conviction obtained after a jury trial has no similar downside potential. Id. at 1485 86 (first emphasis added and citation omitted). Hong points to this language as evidence the Court decided the issue of Padilla s retroactivity. He argues there would be no need to discuss pleas already obtained if the case did not apply retroactively. See Orocio, 2011 WL 2557232, at *7 ( [I]t is not unlikely that the Padilla Court anticipated the retroactive application of its holding on collateral review when it considered the effect its decision would have on final convictions. ); United States v. Hubenig, No. 6:03-mj-040, 2010 WL 2650625, at *8 (E.D. Cal. July 1, 2010) ( If the Court intended Padilla to be a new rule which would apply only prospectively, the entire floodgates discussion would have been unnecessary. ). We disagree. We interpret the Court s statement to simply recognize that past decisions enumerating the contours of Strickland have not led to a surfeit of collateral attacks on guilty pleas. The force of the Court s argument is that 24 Padilla would have a similar (lack of) effect on guilty pleas. In addition, we think it unwise to imply retroactivity based on dicta and abandon the Teague analysis entirely. The Teague framework exists to promote the finality of convictions by shielding them from collateral attacks mounted on new procedural rules of constitutional law. To imply retroactivity from an isolated phrase in a Supreme Court opinion would completely ignore this goal. In sum, we find Padilla did not announce a new watershed rule of criminal procedure that affects the fundamental fairness and accuracy of a criminal proceeding. It is not within either of the extremely narrow Teague exceptions to the retroactivity bar. Therefore, Padilla is a new rule of constitutional law but does not apply retroactively to cases on collateral review. C. Padilla and § 2255(f)(3) Because Padilla does not apply retroactively to cases on collateral review, the limitations period under § 2255(f)(3) does not apply here. Hong s motion was untimely because it was not filed within one year of his conviction becoming final, as required by § 2255(f)(1). Accordingly, no reasonable jurist could conclude the district court erred when it dismissed Hong s § 2255 motion as untimely. III. Conclusion For the foregoing reasons, we DENY Hong s application for a COA and DISMISS his appeal. 25
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