United States v. Chang Hong
671 F.3d 1147
10th Cir.2011Background
- Hong, a South Korean citizen and permanent U.S. resident, pleaded guilty in 2007 to drug conspiracy and was sentenced in 2008; he did not file a direct appeal.
- In 2010, after an immigration notice, Hong filed a § 2255 motion asserting ineffective assistance of counsel for failing to advise him about immigration consequences of his plea, citing Padilla v. Kentucky.
- The district court denied the motion as untimely under § 2255(f)(1) and because Padilla was not a new rule retroactive to collateral review.
- Hong was released from prison later in 2010, then removed provisionally in 2011 after immigration proceedings.
- The Tenth Circuit held Padilla announces a new constitutional rule but does not apply retroactively to collateral review, so § 2255(f)(3) is inapplicable and the motion remains untimely.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Padilla creates a retroactive new rule for collateral review | Hong: Padilla is retroactive under Teague | Hong: Padilla is retroactive; Hong's motion timely under §2255(f)(3) | Padilla is a new rule but not retroactive to collateral review |
| Whether Padilla is a new rule under Teague step two | Padilla extends Strickland to immigration consequences | Padilla is consistent with Strickland’s framework | Padilla is a new constitutional rule under Teague step two |
| Whether Padilla falls within Teague’s retroactivity exceptions | Padilla should fall within the watershed exception | Padilla does not fit the watershed exception | Padilla does not fall within Teague's exceptions; not retroactive |
| Whether §2255(f)(3) tolls the limitations period for Padilla | Padilla created a new right retroactively applying to collateral review | Padilla does not apply retroactively; §2255(f)(3) unavailable | §2255(f)(3) does not apply; motion untimely under §2255(f)(1) |
Key Cases Cited
- Padilla v. Kentucky, 130 S. Ct. 1473 (Supreme Court, 2010) (new rule extends Strickland to immigration consequences; not retroactive to collateral review)
- Teague v. Lane, 489 U.S. 288 (Supreme Court, 1989) (retroactivity framework for new constitutional rules)
- Whorton v. Bockting, 549 U.S. 406 (Supreme Court, 2007) (three-step Teague retroactivity analysis applied here)
- Beard v. Banks, 542 U.S. 406 (Supreme Court, 2004) (Teague second exception discussion; watershed rule context)