United States v. Chang Hong

• Decision Date: 11 October 2011
• Docket Number: No. 10–6294.,10–6294.
• Citation: 671 F.3d 1147
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. CHANG HONG, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

671 F.3d 1147

UNITED STATES of America, Plaintiff–Appellee,

v.CHANG HONG, Defendant–Appellant.

No. 10–6294.

United States Court of Appeals, Tenth Circuit.

Aug. 30, 2011.As Amended Sept. 1, 2011.Rehearing and Rehearing En Banc Denied Oct. 11, 2011.

Submitted on the brief ^*:

Joan L. Lopez, Oklahoma City, OK, for Appellant.

Jonathon E. Boatman, Assistant United States Attorney, Office of the United States Attorney, Oklahoma City, OK, for Appellee.

Before O'BRIEN, McKAY, and TYMKOVICH, Circuit Judges.

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, ––– U.S. ––––, 130 S.Ct. 1473, 176 L.Ed.2d 284 (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 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, ––– U.S. ––––, 130 S.Ct. 1473, 176 L.Ed.2d 284 (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.’ “ 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.

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, 120 S.Ct. 1595, 146 L.Ed.2d 542 (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). 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, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989),⁴ Padilla does not apply retroactively to cases on collateral review. Therefore, § 2255(f)(3) does not 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, 127 S.Ct. 1173, 167 L.Ed.2d 1 (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, 124 S.Ct. 2504, 159 L.Ed.2d 494 (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, 117 S.Ct. 1969, 138 L.Ed.2d 351 (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, 124 S.Ct. 2504; see Teague, 489 U.S. at 310, 109 S.Ct. 1060 (“Unless they fall within an exception to the general rule, new constitutional rules 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 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...