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August 30, 2011

Tenth Circuit panel decides Padilla v. Kentucky is not retroactive

In a decision similar to one handed down last week by the Seventh Circuit (blogged here), a unanimous Tenth Circuit panel today in US v. Hong, No. 10-6294 (10th Cir. Aug. 30, 2011) (available here), has decided that the Supreme Court ruling in Padilla v. Kentucky does not apply to the benefit of defendants whose conviction was final before the decision was handed down. Here is how the Hong opinion begins:

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, 130 S. Ct. 1473 (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.

August 30, 2011 at 04:56 PM | Permalink

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