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
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.
* 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 three- judge 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 post-
conviction 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.