Daniel Sosa filed a petition for writ of habeas corpus contending that his attorney was ineffective for failing to advise him that his guilty plea would subject him to removal or deportation. The State moved to dismiss the petition as untimely. The habeas court denied the motion and granted habeas relief on the ground that Sosa received ineffective assistance of counsel at his plea hearing in 2002. Because Sosa’s habeas petition was untimely under the four-year statute of limitations in OCGA § 9-14-42, we reverse.
On May 9,2002, Sosa entered a plea of guilty to child molestation in violation of OCGA § 16-6-4. He was sentenced to ten years on sexual offender probation, and his conviction became final after 30 days. See OCGA § 5-6-38 (a). At the time, he was a permanent resident of the United States; his wife and four children are citizens. In November 2010, Sosa was detained under the Immigration and Nationality Act as an immigrant who had committed an aggravated felony. See 8 USC § 1227 (a) (2) (A) (iii). He was deported a month later to Mexico.
Sosa filed his habeas corpus petition on January 12, 2012, challenging his conviction under the United States Supreme Court decision in Padilla v. Kentucky,
Denying the motion to dismiss, the habeas court found that Sosa’s attorney did not remember advising Sosa that his guilty plea could result in his deportation, and the transcript of the guilty plea shows that the trial court did not advise him of the possibility. Based on these findings, the habeas court concluded that Sosa’s attorney was deficient for failing to advise Sosa of the risk of deportation from his guilty plea and the attorney’s deficient performance prejudiced Sosa because there is a reasonable probability he would not have pleaded guilty but for his attorney’s errors. As a result, the habeas court granted relief and vacated Sosa’s conviction. The State appeals.
1. Our habeas corpus statute provides for a period of limitations to seek a writ of habeas corpus in state court for the denial of a federal or state constitutional right. OCGA § 9-14-42 (c). In the case of a felony other than one involving a death sentence, any action must be filed within four years from:
(1) The judgment of conviction becoming final by the conclusion of direct reviewor the expiration of the time for seeking such review; provided, however, that any person whose conviction has become final as of July 1,2004, regardless of the date of conviction, shall have... until July 1,2008, in the case of a felony to bring an action pursuant to this Code section;
(3) The date on which the right asserted was initially recognized by the Supreme Court of the United States or the Supreme Court of Georgia, if that right was newly recognized by said courts and made retroactively applicable to cases on collateral review.
Id. (effective July 1, 2004).
In this case, Sosa’s felony conviction was final prior to July 1, 2004, and he was required under subsection (c) (1) to bring his habeas action by July 1, 2008, unless the exception in subsection (c) (3) applies. To toll the statute of limitations under that exception, the right must be both newly recognized and made retroactively applicable to cases on collateral review. See Alford v. State,
2. In Padilla v. Kentucky, the United States Supreme Court held that the Sixth Amendment right to effective assistance of counsel requires an attorney to inform a client when a guilty plea carries a risk of deportation. 559 U. S. at_(130 SC at 1486). Under Padilla, “a defendant who is not a United States citizen and can show that his lawyer did not adequately advise him of the risks of deportation resulting from his guilty plea” will establish deficient performance under Strickland v. Washington,
The Supreme Court has granted certiorari to consider this term whether the Padilla rule applies retroactively to persons whose convictions became final before Padilla was decided. See Chaidez v. United States,
Under Teague, a rule of criminal procedure applies to all cases on direct and collateral review if it is an old rule applied to new facts, but a new rule generally applies only to cases that are still on direct review unless it falls within one of two exceptions. Whorton v. Bockting,
The federal and state appellate courts are split on whether Padilla applies retroactively to persons whose convictions became final before its announcement. Three federal courts of appeals and two state supreme courts have concluded that Padilla announced a new rule that does not apply on collateral review. United States v. Amer,
Assuming these cases are correct and Padilla announced a new rule, it does not fall within either exception for retroactive application under Teague. It is neither a change in substantive criminal law nor a watershed rule of criminal procedure. See United States v. Mathur,
Alternatively, the Third Circuit Court of Appeals and two state supreme courts have concluded that Padilla applies retroactively to cases on collateral review because it did not announce a new rule. See United States v. Orocio,
We have previously declined to consider whether the holding in Padilla applies retroactively to convictions challenged in habeas corpus. See Smith,
3. To prevail in this case, Sosa must show both that the rule in Padilla is newly recognized and that it applies retroactively to cases on collateral review. See OCGA § 9-14-42 (c) (3). Both federal and state courts have rejected similar claims based on comparable post-conviction relief statutes. See Perez,
Since Padilla was decided, many federal district courts have rejected efforts by defendants to thread the needle and argue at the same time that (1) Padilla has retroactive effect under Teague because it was dictated by earlier Supreme Court precedent and (2) Padilla involves a “newly recognized” right for federal habeas tolling purposes [under the federal habeas corpus statute]____A few state courts have similarly rejected claims that Padilla constitutes both an old rule, eligible for retroactive application, and a new rule in the context of a postconviction relief statute of limitations.
Id. If Padilla established a new right, it does not apply retroactively to cases on collateral review; on the other hand, if Padilla applies retroactively, then it follows existing law and fails to meet the requirement of a newly recognized right under our statute of limitations. Because Sosa cannot show that he is entitled to relief based on a newly recognized right that is retroactively applicable to cases on collateral review, we hold that his habeas petition is barred by the four-year statute of limitations period.
Judgment reversed.