United States v. Mathur

• Decision Date: 11 July 2012
• Docket Number: No. 11–6747.,11–6747.
• Citation: 685 F.3d 396
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Shahzad MATHUR, a/k/a Shazad Mathur, a/k/a Shahzu Mathur, a/k/a Shah Mathur, a/k/a Shane, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

685 F.3d 396

UNITED STATES of America, Plaintiff–Appellee,

v.Shahzad MATHUR, a/k/a Shazad Mathur, a/k/a Shahzu Mathur, a/k/a Shah Mathur, a/k/a Shane, Defendant–Appellant.

No. 11–6747.

United States Court of Appeals,Fourth Circuit.

Argued: Jan. 26, 2012.

Decided: July 11, 2012.

ARGUED:Kirsten Elena Small, Nexsen Pruet, LLC, Greenville, South Carolina, for Appellant. Kristine L. Fritz, Office of the United States Attorney, Raleigh,North Carolina, for Appellee. ON BRIEF:James D. Galyean, Nexsen Pruet, LLC, Greenville, South Carolina, for Appellant. Thomas G. Walker, United States Attorney, Jennifer P. May–Parker, Assistant United States Attorney, Seth M. Wood, Assistant United States Attorney, Office of the United States Attorney, Raleigh, North Carolina, for Appellee.

Before NIEMEYER, WYNN, and DIAZ, Circuit Judges.

Affirmed by published opinion. Judge NIEMEYER wrote the opinion, in which Judge WYNN and Judge DIAZ joined. Judge NIEMEYER also wrote a separate opinion in support of the judgment.

OPINION

NIEMEYER, Circuit Judge:

The issue presented in this appeal is whether the right recognized in Padilla v. Kentucky, ––– U.S. ––––, 130 S.Ct. 1473, 1486, 176 L.Ed.2d 284 (2010), which held that the Sixth Amendment right to counsel requires defense lawyers to inform their clients whether a plea agreement carries a risk of deportation, is a new right that has been made retroactively applicable to cases on collateral review so as to enable Shahzad Mathur to file a timely motion under 28 U.S.C. § 2255 to vacate his guilty plea for drug trafficking. See28 U.S.C. § 2255(f)(3).

When Mathur, an alien residing in the United States, pleaded guilty in 2007 to conspiracy to distribute more than five kilograms of cocaine and, in 2008, received a sentence of 20 years' imprisonment, his lawyer failed to advise him of the immigration-related consequences of his plea, such as possible deportation, telling him “not to worry” about such consequences. After pleading guilty, however, the Department of Homeland Security initiated deportation proceedings against Mathur, based on his plea.

Almost three years after his conviction, on March 31, 2010, the Supreme Court handed down Padilla, and relying on that decision, Mathur filed a § 2255 motion on March 23, 2011, seeking to vacate his plea. He contends that his motion is timely under § 2255(f)(3), as it was filed within one year from the date of the Padilla decision and Padilla recognized a new right that is retroactively applicable to cases on collateral review. See28 U.S.C. § 2255(f)(3).

The district court denied Mathur's motion, finding it untimely. It concluded that, under the principles announced in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (plurality opinion), Padilla is not to be applied retroactively to cases on collateral review.

We affirm, holding, as did the district court, that Mathur's § 2255 motion is barred by the one-year statute of limitations in § 2255(f). Mathur did not file his motion within one year after his judgment of conviction became final, as required by § 2255(f)(1), and he did not satisfy the requirement of § 2255(f)(3) that he file his motion within one year after the Supreme Court recognized a new right that had been made retroactively applicable to cases on collateral review. More particularly, we conclude that Padilla was not a “watershed rule[ ] implicating fundamental fairness,” United States v. Sanders, 247 F.3d 139, 148 (4th Cir.2001), such that it serves to enhance the “accuracy of the factfinding process,” Whorton v. Bockting, 549 U.S. 406, 419, 127 S.Ct. 1173, 167 L.Ed.2d 1 (2007).

I

Mathur filed his § 2255 motion to set aside his guilty plea some three years after his judgment of conviction became final. Accordingly, the motion would typically be barred by the one-year statute of limitations in § 2255(f)(1). Mathur contends, however, that because he is relying on Padilla and Padilla recognized a new right, the period runs from March 31, 2010, when Padilla was decided, thus making his motion filed on March 23, 2011, timely under § 2255(f)(3).

Subsection 2255(f)(3) provides that the one-year statute of limitations for filing 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[.]

28 U.S.C. § 2255(f)(3); see also Dodd v. United States, 545 U.S. 353, 357–58, 125 S.Ct. 2478, 162 L.Ed.2d 343 (2005) (holding that the § 2255(f)(3) limitation period runs from the date on which the Supreme Court recognizes the new right, not the date on which the new right was “made retroactive[ ]”). Thus, to obtain the benefit of the limitations period stated in § 2255(f)(3), Mathur must show: (1) that the Supreme Court recognized a new right; (2) that the right “has been ... made retroactively applicable to cases on collateral review”; and (3) that he filed his motion within one year of the date on which the Supreme Court recognized the right.

Mathur clearly satisfies the third requirement inasmuch as Padilla was decided on March 31, 2010, and Mathur filed his § 2255 motion within one year—on March 23, 2011.

As to the first requirement—whether Padilla recognized a new right—there is a circuit split. The Third Circuit has concluded that Padilla did not announce a new rule. See United States v. Orocio, 645 F.3d 630, 640–41 (3d Cir.2011). But the Seventh and Tenth Circuits have concluded that it did. See Chaidez v. United States, 655 F.3d 684, 692 (7th Cir.2011); United States v. Chang Hong, 671 F.3d 1147, 1151 (10th Cir.2011).

Prior to Padilla, it was widely believed that the right to effective assistance of counsel in connection with plea bargaining, as recognized in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (announcing a two-part test for effective assistance claims), and Hill v. Lockhart, 474 U.S. 52, 57, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) (applying Strickland to the plea bargaining process), extended only to counsel's advice about the “direct” consequences of the plea, i.e., the probable sentence that would be imposed upon conviction, not the “collateral” consequences, i.e., separate proceedings that might be affected by the conviction. See Gabriel J. Chin & Richard W. Holmes, Jr., Effective Assistance of Counsel and the Consequences of Guilty Pleas, 87 Cornell L.Rev. 697, 699 (2002) (“[E]leven federal circuits, more than thirty states, and the District of Columbia have held that lawyers need not explain collateral consequences”). In Padilla, however, the Supreme Court determined that deportation proceedings resulting from a criminal conviction bear such a “close connection to the criminal process” that they are “uniquely difficult to classify as either a direct or a collateral consequence.” 130 S.Ct. at 1482. Accordingly, the Court held that the Sixth Amendment requires defense counsel to “inform her client whether his plea carries a risk of deportation.” Id. at 1486.

In view of this background, Mathur claims that the right to be advised of the deportation-related consequences of pleading guilty was “newly recognized by the Supreme Court” in Padilla, therefore satisfying the first requirement of § 2255(f)(3). And the government agrees. Accordingly, we will assume, without deciding,that Padilla did recognize a new right, as § 2255(f)(3) requires.

The disputed issue in this case centers around the second requirement of § 2255(f)(3), whether the new right “has been made retroactively applicable to cases on collateral review.”

The parties focus their arguments on whether Padilla, as a new rule, should be retroactively applied pursuant to the Teague analysis. As the Teague Court pointed out, new rules of constitutional law are generally “not ... applicable to those cases which have become final before the new rules are announced.” Teague, 489 U.S. at 310, 109 S.Ct. 1060. The strong presumption against retroactive application of new rules of constitutional law is necessary to protect “the principle of finality which is essential to the operation of our criminal justice system,” and it is also vital to minimize the intrusion that results when state courts “faithfully apply existing constitutional law only to have a federal court discover, during a [habeas] proceeding, new constitutional commands.” Id. at 309–10, 109 S.Ct. 1060 (alteration in original) (internal quotation marks omitted).

Teague did, however, recognize two exceptions to the general principle. First, “a new rule should be applied retroactively if it places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe.” 489 U.S. at 311, 109 S.Ct. 1060 (internal quotation marks omitted). This exception, however, is not relevant here, as Mathur does not suggest that it applies to Padilla.

Second, a new procedural rule should apply retroactively if it is “implicit in the concept of ordered liberty” and if, without the procedure, “the likelihood of an accurate conviction is seriously diminished.” Id. at 311, 313, 109 S.Ct. 1060 (internal quotation marks omitted). This exception is “extremely narrow,” Schriro v. Summerlin, 542 U.S. 348, 352, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004), as it is reserved only for “watershed rules implicating fundamental fairness,” Sanders, 247 F.3d at 148. Mathur argues nonetheless that it applies to Padilla. We disagree.

Since Teague, the Supreme Court has reviewed numerous claims that new rights fall within this exception, and it has rejected every single one of them. See Whorton, 549 U.S. at 418, 127 S.Ct. 1173 (collecting cases). The only case that the Court has ever suggested might qualify for retroactive application under the second Teague exception is Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), which incorporated the Sixth Amendment...