On a decision released August 30, 2011, the Tenth Circuit panel unanimously held the U.S. Supreme Court ruling in Padilla v. Kentucky does not apply where a defendant’s conviction was final before the Supreme Court’s decision. In Padilla v. Kentucky, the court held that a criminal defense attorney has a duty to advise his client of obvious immigration consequences of a plea of guilty to a crime. In U.S. v. Hong, Mr. Hong appealed the district court’s decision to deny his motion for relief under 28 U.S.C. 2255 as untimely. No. 10-6294 (10th Cir. Aug. 30, 2011) .
Mr. Hong was sentenced in 2008. In 2010, while in prison, he received a notice from Homeland Security stating that he was being placed in removal proceedings. He filed a motion under 28 U.S.C. § 2255, where he sought to vacate his conviction and withdraw his plea. He alleged his trial counsel was ineffective because counsel had failed to advise him of the immigration consequences of his plea as required by Padilla v. Kentucky. The district court denied his motion because 1) it was filed outside the § 2255 statute of limitations and 2) Padilla was not a new constitutional law that applied retroactively to cases on collateral review.
On appeal, Hong argued that his motion was timely under 28 U.S.C. § 2255(f)(3), which starts the statute of limitations to file a §2255 motion when the Supreme Court recognizes a new rule. In addition, he argued Padilla indeed did present a new constitutional rule that applies retroactively to all cases on collateral attack. As such, his motion is timely.
The Tenth Circuit found that Padilla did create a new rule of constitutional law, but held that it did not apply retroactively to cases on collateral review. Instead, the rule from Padilla will only apply to criminal cases pending on direct review. As a result, because the time had passed for Mr. Hong to present his claim of ineffective assistance, his motion was untimely and barred.
The intersection of criminal law and immigration consequences can be difficult to navigate. If you or a loved one is facing criminal and possible immigration proceedings, contact an experienced attorney at Bell Folsom, P.A.