April 22, 2019

Tenth Circuit: Padilla Is a New Rule of Constitutional Law But Does Not Apply Retroactively to Cases on Collateral Review

on Tuesday, August 30, 2011.

The Tenth Circuit denied Petitioner’s application for certificate of appealability and dismissed the appeal. Petitioner 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 hydro-marijuana. He was sentenced to 37 months’ imprisonment and did not file a direct appeal. He was subsequently placed in immigration removal proceedings, which determined he was subject to removal from the United States because of his drug conspiracy conviction.

Petitioner then 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. He 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 risk of deportation.’” The district court denied Petitioner’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.

The Court concluded that “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,” either, which would allow for retroactive application. “Therefore, Padilla is a new rule of constitutional law but does not apply retroactively to cases on collateral review.” Petitioner’s motion must be considered untimely then because it was not filed within one year of his conviction becoming final.

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