In 2010, the Supreme Court in Padilla v. Kentucky found that the Sixth Amendment requires defense counsel to “inform her client whether his plea carries a risk of deportation.” 130 S.Ct. 1473, 1486 (2010). In the short two years that followed, a circuit split has emerged over whether Padilla recognized a new right.
Last week the Fourth Circuit confronted this question in a case in which it was asked to decide whether a defendant had filed a timely motion under 28 U.S.C. § 2255(f)(3) within one year after the Supreme Court's recognition of a "new right" that was retroactively applicable to cases on collateral review. See United States v. Mathur, No. 11-6747 (4th Cir. July 11, 2012).
To answer this question, the court first had to address whether Padilla even recognized a new right. In doing so, Judge Paul Niemeyer pointed to a split among the circuits:
The Third Circuit has concluded that Padilla did not announce a new rule. See United States v. Orocio, 645 F.3d 630, 640-41 (3d Cir. 2011). But the Seventh and Tenth Circuits have concluded that it did. See Chaidez v. United States, 655 F.3d 684, 692 (7th Cir. 2011); United States v. Chang Hong, 671 F.3d 1147, 1151 (10th Cir. 2011).
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The cases decided under Padilla to date have held either that Padilla did not recognize a new right or that Padilla did recognize a new right but the right was not retroactively applicable to cases on collateral review. The Third Circuit’s decision in Orocio, 645 F.3d at 641, represents the class of cases concluding that Padilla did not recognize a new right.1 The other federal cases that have considered the matter have concluded that Padilla recognized a new right but that the right was not retroactively applicable to cases on collateral review. See, e.g., United States v. Martinez, ___ F. Supp. 2d ___, 2012 WL 220244, at *1-*2 (D. Mass. 2012) (collecting circuit and district court authority and noting the "developing consensus of federal courts in holding that Padilla announced a new rule of constitutional law and thus, under Teague, does not apply retroactively").2
1. See also Jiminez v. Holder, No. 10–cv–1528–JAH (NLS), 2011 WL 3667628, at *4 (S.D. Cal. Aug. 19, 2011); United States v. Hurtado-Villa, Nos. CV–10–01814–FJM (MHB), CR–08–01249–PHX–FJM, 2011 WL 4852284, at *5 (D. Ariz. Aug. 12, 2011); United States v. Reid, No. 1:97–CR–94, 2011 WL 3417235, at *3 (S.D. Ohio Aug. 4, 2011); Song v. United States, Nos. CV 09–5184 DOC, CR 98–0806 CM, 2011 WL 2940316, at *2 (C.D. Cal. July 15, 2011); United States v. Dass, No. 05–140(3) (JRT/FLN), 2011 WL 2746181, at *5 (D. Minn. July 14, 2011); Amer v. United States, No. 1:06CR118–GHD, 2011 WL 2160553, at *3 (N.D. Miss. May 31, 2011); Zapata-Banda v. United States, Nos. B:10–256, B:09–PO–2487, 2011 WL 1113586, at *4 (S.D. Tex. Mar. 7, 2011); Marroquin v. United States, No. M-10-156, 2011 WL 488985, at *7 (S.D. Tex. Feb. 4, 2011); United States v. Zhong Lin, No. 3:07–CR–44–H, 2011 WL 197206, at *2 (W.D. Ky. Jan. 20, 2011); Luna v. United States, No. 10CV1659 JLS (POR), 2010 WL 4868062, at *4 (S.D. Cal. Nov. 23, 2010); United States v. Hubenig, No. 6:03-mj-040, 2010 WL 2650625, at *8 (E.D. Cal. July 1, 2010).
2. But cf. Santos-Sanchez v. United States, No. 5:06–cv–153, 2011 WL 3793691 (S.D. Tex. Aug. 24, 2011), which suggested that Padilla is "sui generis" because, according to the court, it is retroactively applicable on collateral review even though it is neither an old rule (and thus routinely applicable on collateral review) nor a new rule falling within a Teague exception. Id. at *10 & n.99.
The Fourth Circuit ultimately avoided picking a side by assuming, “without deciding, that Padilla did recognize a new right, as § 2255(f)(3) requires.”