Richards v. United States, 1:10-cv-00188

Richards pleaded guilty to possession with intent to distribute five grams or more of cocaine base in 2005 and was sentenced to 108 months with four years’ supervised release.
Petitioner did not pursue a direct appeal of his conviction or sentence.
In 2010 Richards moved under § 2255 to vacate, challengeable as an ineffective-assistance claim for failing to apprise him of immigration consequences of the plea.
The Government argued Padilla is not retroactive to collateral review and that the motion was untimely under the one-year statute of limitations.
The court issued a Hill v. Braxton notice and determined the motion was untimely unless equitable tolling applied, which was not shown.
The report recommends denying and dismissing the § 2255 motion as untimely and not retroactively applicable to Padilla, and denying as moot the motion to follow up.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Is the § 2255 motion timely?	Richards argues Padilla tolls the period (f(3)).	Government contends untimely under f(1) and Padilla not retroactive.	Untimely; Padilla not retroactive.
Does Padilla apply retroactively on collateral review?	Padilla creates a new rule retroactively applicable to § 2255 motions.	Padilla is not retroactive under Teague; not applicable to collateral review.	Padilla not retroactive; no relief on retroactivity.

Hill v. Braxton, 277 F.3d 701 (4th Cir. 2002) (Hill v. Braxton notice for untimeliness)
Padilla v. Kentucky, 130 S. Ct. 1473 (Supreme Court 2010) (deportation advice as Sixth Amendment issue; new rule)
United States v. Yearwood, 863 F.2d 6 (4th Cir. 1988) (pre-Padilla standard on ineffective assistance for immigration)
Beard v. Banks, 542 U.S. 406 (U.S. 2004) (Teague exceptions and retroactivity context)
Saffle v. Parks, 494 U.S. 484 (U.S. 1990) (Teague retroactivity framework)
Gideon v. Wainwright, 372 U.S. 335 (U.S. 1963) (watershed rule and fundamental fairness reference)
O'Dell v. Netherland, 521 U.S. 151 (U.S. 1997) (limited scope of retroactivity exception)
United States v. Hernandez-Monreal, 404 F. App’x 714 (4th Cir. Dec. 6, 2010) (application of Padilla retroactivity in Fourth Circuit context)