IN THE SUPREME COURT OF IOWA
No. 10–1315
Filed June 8, 2012
SERGIO PEREZ,
Appellant,
vs.
STATE OF IOWA,
Appellee.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Marshall County,
Michael J. Moon, Judge.
Appellant seeks further review of a court of appeals decision
affirming the district court’s dismissal of his application for
postconviction relief. COURT OF APPEALS DECISION AND DISTRICT
COURT JUDGMENT AFFIRMED.
Michael H. Said of Law Offices of Michael H. Said, P.C., for
appellant.
Thomas J. Miller, Attorney General, Linda J. Hines, Assistant
Attorney General, Jennifer A. Miller, County Attorney, and James S.
Scheetz, Assistant County Attorney, for appellee.
2
MANSFIELD, Justice.
In Padilla v. Kentucky, the United States Supreme Court decided a
criminal defendant has a Sixth Amendment right to receive advice from
counsel regarding the risk of deportation before pleading guilty. ___ U.S.
___, ___, 130 S. Ct. 1473, 1486, 176 L. Ed. 2d 284, 299 (2010). Sergio
Perez argues he did not receive such advice from his attorney in 2000
before he pled guilty to a misdemeanor drug possession charge. For this
reason, Perez has filed an application for postconviction relief seeking to
have that conviction set aside.
We conclude Perez is not entitled to relief because only two
possibilities exist here. One alternative is Padilla establishes a “new”
rule of constitutional criminal procedure. If that is so, however, Padilla
does not apply retroactively, and Perez may not rely upon it to set aside
an earlier conviction. See Teague v. Lane, 489 U.S. 288, 310, 109 S. Ct.
1060, 1075, 103 L. Ed. 2d 334, 356 (1989) (generally denying
retroactivity when a Supreme Court decision establishes a new rule of
constitutional criminal procedure). The other possibility is that Padilla is
not a new rule. But if that is the case, then Perez’s application is time-
barred because he could have filed it within three years of the date when
his conviction became final and failed to do so. See Iowa Code § 822.3
(2009) (generally requiring postconviction relief applications to be filed
within three years from the date the conviction is final unless the ground
could not have been raised within the applicable time period). In short,
Perez’s claim cannot go forward because either it may not be raised
retroactively or it is barred by the statute of limitations. Therefore, we
affirm the judgment of the district court and the decision of the court of
appeals, both of which denied Perez’s claims.
3
I. Background Facts and Proceedings.
According to the original minutes of testimony, on October 22,
2000, a large fight broke out at the El Parral Bar in Marshalltown. Police
found the defendant Sergio Perez dazed but conscious lying on the
ground outside. An ambulance soon arrived. One of the emergency
medical technicians (EMT) who was treating Perez saw a plastic bag fall
from his pants pocket. The EMT informed a Marshalltown police officer,
who retrieved the bag. It contained a powdery substance which was later
identified as 6.75 grams of methamphetamine.
Perez was initially charged with possession of more than five grams
of a Schedule II controlled substance with intent to deliver in violation of
Iowa Code section 124.401(1)(b) (1999), a class “B” felony, and failure to
attach a drug tax stamp in violation of Iowa Code section 453B.12, a
class “D” felony. Perez agreed to a plea bargain in which the charges
were reduced to a single misdemeanor charge of possession of a
Schedule II controlled substance in violation of Iowa Code section
124.401(5) and signed a written plea of guilty on December 22, 2000.
Perez’s plea was accepted by the district court, and judgment was
entered on December 22, 2000. As part of the plea agreement, Perez
received a thirty-day jail sentence, with credit for thirty days already
served. Perez did not appeal his conviction or sentence.
Perez is not a United States citizen. On April 12, 2010, over nine
years after final judgment was entered in his criminal case and less than
two weeks after the Supreme Court’s Padilla decision, Perez filed an
application for postconviction relief. In the application, he alleged his
attorney had not notified him of the immigration implications of his
guilty plea. Iowa precedent at that time did not require attorneys to
provide this information. See State v. Ramirez, 636 N.W.2d 740, 745–46
4
(Iowa 2001). Perez also sought relief on the grounds that his rights to an
interpreter and a recording of proceedings under Iowa Code sections
622A.2 and 622A.8 were violated during his guilty plea proceedings.
The State filed a motion to dismiss, urging that Iowa Code section
822.3 (2009) requires postconviction relief petitions to be filed within
three years from the time a conviction becomes final and that Perez’s
application over nine years later was therefore time-barred. Perez
resisted, maintaining that he could not have reasonably been expected to
raise these objections to his plea proceedings within the applicable time
period.
Following a hearing, the district court denied Perez’s application on
all grounds. Perez filed a timely appeal, and we transferred the case to
the court of appeals. The court of appeals affirmed the district court’s
dismissal of Perez’s application for postconviction relief, holding among
other things that Perez had “failed to establish Padilla should apply
retroactively to his postconviction relief application.”
We granted Perez’s application for further review.
II. Standard of Review.
“Generally, an appeal from a denial of an application for
postconviction relief is reviewed for correction of errors at law.” Goosman
v. State, 764 N.W.2d 539, 541 (Iowa 2009). We must “affirm if the trial
court’s findings of fact are supported by substantial evidence and the law
was correctly applied.” Harrington v. State, 659 N.W.2d 509, 520 (Iowa
2003). Where the applicant alleges constitutional error, our “review is de
novo ‘in light of the totality of the circumstances and the record upon
which the postconviction court’s rulings w[ere] made.’ ” Goosman, 764
N.W.2d at 541 (quoting Giles v. State, 511 N.W.2d 622, 627 (Iowa 1994)).
5
III. Analysis.
A. The Padilla Decision. Perez’s primary argument on appeal is
that his trial counsel failed to advise him regarding the risk of
deportation, a constitutional duty recognized by the United States
Supreme Court in Padilla. See ___ U.S. at ___, 130 S. Ct. at 1486, 176 L.
Ed. 2d at 299. Padilla, like the present case, involved a defendant who
pled guilty to drug-related charges. Id. at ___, 130 S. Ct. at 1477, 176 L.
Ed. 2d at 290. He later petitioned for postconviction relief, claiming
ineffective assistance of counsel because he was not told that his plea
could negatively affect his immigration status (and allegedly was
affirmatively told he “did not have to worry about [his] immigration
status since he had been in the country so long”). ___ U.S. at ___, 130 S.
Ct. at 1478, 176 L. Ed. 2d at 290 (citation and internal quotation marks
omitted). 1 The Kentucky Supreme Court affirmed the denial of Padilla’s
petition. Id. It held, as had eleven federal circuit courts and most state
supreme courts, that the Sixth Amendment guarantee of effective
assistance of counsel did not require an attorney to notify his or her
client about collateral consequences of a guilty plea, including the effect
on immigration status. Id. at ___, 130 S. Ct. at 1481, 176 L. Ed. 2d at
293; id. at ___, 130 S. Ct. at 1487, 176 L. Ed. 2d at 300 (Alito, J.,
concurring).
1Federal law provides:
Any alien who at any time after admission has been convicted of a
violation of (or a conspiracy or attempt to violate) any law or regulation of
a State, the United States, or a foreign country relating to a controlled
substance (as defined in section 802 of Title 21), other than a single
offense involving possession for one’s own use of 30 grams or less of
marijuana, is deportable.
8 U.S.C. § 1227(a)(2)(B)(i) (2000).
6
The United States Supreme Court reversed. Id. at ___, 130 S. Ct.
at 1487, 176 L. Ed. 2d at 299. The Court concluded that
“constitutionally competent counsel” should have informed Padilla of the
risk of deportation resulting from his plea. Id. at ___, 130 S. Ct. at 1478,
1480, 176 L. Ed. 2d at 290. The Court noted it had “never applied a
distinction between direct and collateral consequences to define the
scope of constitutionally ‘reasonable professional assistance’ required
under Strickland.” Id. at ___, 130 S. Ct. at 1481, 176 L. Ed. 2d at 293
(quoting Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052,
2065, 80 L. Ed. 2d 674, 694 (1984)). The Court concluded that “[t]he
collateral versus direct distinction is . . . ill-suited to evaluating a
Strickland claim concerning the specific risk of deportation” and that
“advice regarding deportation is not categorically removed from the ambit
of the Sixth Amendment right to counsel.” Id. at ___, 130 S. Ct. at 1482,
176 L. Ed. 2d at 294.
Thus, applying the first part of the Strickland framework, the Court
found that the assistance of Padilla’s attorney fell below an objective
standard of reasonableness established by “prevailing professional
norms” as defined by American Bar Association standards and similar
practice guides. Id. The Court noted that “[f]or at least the past 15
years, professional norms have generally imposed an obligation on
counsel to provide advice on the deportation consequences of a client’s
plea.” Id. at ___, 130 S. Ct. at 1485, 176 L. Ed. 2d at 297–98. The Court
added that “the terms of the relevant immigration statute are succinct,
clear, and explicit in defining the removal consequence for Padilla’s
conviction.” Id. at ___, 130 S. Ct. at 1483, 176 L. Ed. 2d at 295. Hence,
the Court concluded that “[o]ur longstanding Sixth Amendment
precedents, the seriousness of deportation as a consequence of a
7
criminal plea, and the concomitant impact of deportation on families
living lawfully in this country demand” that counsel inform a defendant if
his or her plea subjects him or her to the risk of deportation. Id. at ___,
130 S. Ct. at 1486, 176 L. Ed. 2d at 299.
The Court did not ultimately find that Padilla was entitled to relief.
Under the two-part framework established in Strickland, Padilla still had
to demonstrate prejudice, i.e., that he would not have pled guilty if
properly informed of the risk of deportation. The Court noted that those
“who collaterally attack their guilty pleas lose the benefit of the bargain
obtained as a result of the plea.” Id. at ___, 130 S. Ct. at 1485, 176 L.
Ed. 2d at 298. Thus, it remanded the case for further proceedings in the
Kentucky courts to determine whether Padilla had suffered prejudice. Id.
at ___, 130 S. Ct. at 1487, 176 L. Ed. 2d at 299.
B. Teague Standards for Retroactivity. As we have noted,
within two weeks of the Padilla decision, Perez applied for postconviction
relief, asserting his trial counsel had failed to advise him of the risk of
deportation when he pled guilty in 2000. Perez maintains that Padilla
applies retroactively and that he may rely upon it to collaterally attack
his 2000 conviction. Teague is the Supreme Court’s leading
pronouncement on when a federal constitutional rule of criminal
procedure may be applied retroactively to a conviction that became final
before the rule was announced. There, the Court indicated that “[u]nless
they fall within an exception to the general rule, new constitutional rules
of criminal procedure will not be applicable to those cases which have
become final before the new rules are announced.” Id. at 310, 109 S. Ct.
at 1075, 103 L. Ed. 2d at 356 (emphasis added). 2
2Potentially,
this court could grant retroactive effect to a United States Supreme
Court decision announcing a rule of constitutional criminal procedure even if that
Court would not do so. However, this court has so far followed the Teague framework.
8
Teague defined a new rule as one that “breaks new ground or
imposes a new obligation on the States or the Federal Government” or, to
put it another way, “was not dictated by precedent existing at the time
the defendant’s conviction became final.” Id. at 301, 109 S. Ct. at 1070,
103 L. Ed. 2d at 349. Such new rules “generally should not be applied
retroactively to cases on collateral review.” Id. at 305, 109 S. Ct. at
1073, 103 L. Ed. 2d at 352. The Teague Court determined that it is
“ ‘sounder, in adjudicating [collateral] petitions, generally to apply the
law prevailing at the time a conviction became final than it is to seek to
dispose of [collateral] cases on the basis of intervening changes in
constitutional interpretation.’ ” Id. at 306, 109 S. Ct. at 1073, 103 L. Ed.
2d at 353 (quoting Mackey v. United States, 401 U.S. 667, 689, 91 S. Ct.
1171, 1178, 28 L. Ed. 2d 404, 418 (1971) (Harlan, J., concurring)). The
Court invoked the principle of finality:
Application of constitutional rules not in existence at the
time a conviction became final seriously undermines the
principle of finality which is essential to the operation of our
criminal justice system. Without finality, the criminal law is
deprived of much of its deterrent effect.
Id. at 309, 109 S. Ct. at 1074, 103 L. Ed. 2d at 355. In sum, the Court
concluded, “The costs imposed upon the State[s] by retroactive
application of new rules of constitutional law on [collateral review] . . .
generally far outweigh the benefits of this application.” Id. at 310, 109 S.
Ct. at 1075, 103 L. Ed. 2d at 355 (citation and internal quotation marks
omitted).
Teague allowed for two narrow exceptions to its principle that new
rules do not apply retroactively. One is for new rules of criminal
_____________________________
See Morgan v. State, 469 N.W.2d 419, 422–25 (Iowa 1991); Brewer v. State, 444 N.W.2d
77, 81–82 (Iowa 1989).
9
procedure that are actually substantive because they place “certain
kinds of primary, private individual conduct beyond the power of the
criminal law-making authority to proscribe.” Id. at 311, 109 S. Ct. at
1075, 103 L. Ed. 2d at 356 (citation and internal quotation marks
omitted). Thus, the first exception to nonretroactivity arises when
previously illegal conduct is no longer prohibited by the law. The second
exception is “reserved for watershed rules of criminal procedure . . .
without which the likelihood of an accurate conviction is seriously
diminished.” Id. at 311, 313, 109 S. Ct. at 1076, 1077, 103 L. Ed. 2d at
356, 358. Hence, the second exception involves new rules that are
“central to an accurate determination of innocence or guilt” and also
“implicit in the concept of ordered liberty.” Id. at 313–14, 109 S. Ct. at
1077, 103 L. Ed. 2d at 358 (internal quotation marks omitted). 3
Padilla clearly falls into neither exception. Padilla does not shield
previously illegal conduct from the reach of the criminal law, nor is it
based on a concern about the accuracy of prior determinations of guilt.
In fact, no court has so far held the Padilla rule qualifies for the
watershed/ordered liberty exception, and we agree that the exception
does not apply. See, e.g., Figuereo-Sanchez v. United States, No. 10–
14235, 2012 WL 1499871, *6 (11th Cir. May 1, 2012) (holding that
“Padilla did not announce a watershed rule of criminal procedure”); see
also United States v. Aceves, No. 10–00738, 2011 WL 976706, *4 (D.
Haw. Mar. 17, 2011) (stating that “this court has found no judicial
decision construing Padilla as stating a new rule that falls within the
3To highlight the narrowness of the second exception, since Teague the Supreme
Court has rejected every claim that a new rule of constitutional criminal procedure
qualifies for watershed status. See Whorton v. Bockting, 549 U.S. 406, 417–18, 127 S.
Ct. 1173, 1181–82, 167 L. Ed. 2d 1, 11–12 (2007).
10
‘ordered liberty’ exception”). Therefore, Padilla only applies retroactively
if it is not deemed a new rule.
There is a substantial split of authority on this point. The United
States Court of Appeals for the Third Circuit and two state supreme
courts have held that Padilla is merely an application of the general
principle announced in Strickland that defendants are entitled to
“reasonably effective assistance” of counsel. See United States v. Orocio,
645 F.3d 630, 641 (3d Cir. 2011); Denisyuk v. State, 30 A.3d 914, 923–
25 (Md. 2011); Commonwealth v. Clarke, 949 N.E.2d 892, 904 (Mass.
2011); see also Strickland, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed.
2d at 693. Generally, these courts have reasoned that if Strickland was
the basic law at the time that counsel neglected to properly inform a
defendant concerning potential immigration issues, then the Padilla
application, interpretation, or restatement of Strickland should be
applied retroactively even if it was only raised in a collateral attack on
the conviction. These courts do not consider Padilla a new rule, but
rather a new application or clarification of an old rule, and therefore
eligible for retroactivity. See Orocio, 645 F.3d at 641 (stating that
“Padilla followed directly from Strickland and long-established
professional norms”); Denisyuk, 30 A.3d at 925 (stating that “Padilla is
an application of Strickland to a specific set of facts”); Clarke, 949 N.E.2d
at 904 (stating that “the defendant in Padilla sought only an application
of Strickland that several courts had already reached”).
On the other hand, the Fifth, Seventh, and Tenth Circuits have
concluded that Padilla announced a new rule of law and have declined to
apply it retroactively, citing among other things the previously prevailing
view among lower federal courts and state courts that counsel did not
have an obligation to advise concerning deportation risk. See United
11
States v. Amer, No. 11–60522, 2012 WL 1621005, *2 (5th Cir. May 9,
2012) (“Padilla departed markedly from the ‘legal landscape’ extant when
[the defendants’] conviction became final in February 2009.” (quoting
Beard v. Banks, 542 U.S. 406, 413, 124 S. Ct. 2504, 2511, 159 L. Ed. 2d
494, 504 (2004))); United States v. Chang Hong, 671 F.3d 1147, 1155
(10th Cir. 2011) (“We find a reasonable jurist at the time of Hong’s
conviction would not have considered Supreme Court precedent to
compel the application of Strickland to the immigration consequences of
a guilty plea.”); Chaidez v. United States, 655 F.3d 684, 690 (7th Cir.
2011) (“Such rare unanimity among the lower courts is compelling
evidence that reasonable jurists reading the Supreme Court’s precedents
in April 2004 could have disagreed about the outcome of Padilla.”), cert.
granted, __ S. Ct. __, 2012 WL 1468539 (April 30, 2012). One state
supreme court has ruled likewise that Padilla sets forth a new rule of
constitutional criminal procedure. State v. Gaitan, 37 A.3d 1089, 1105
(N.J. 2012) (stating that “Padilla involved no simple application of the
well-established Strickland rule to a new set of facts”).
On April 30, 2012, the United States Supreme Court granted
certiorari in Chaidez, the Seventh Circuit case. Chaidez, __ S. Ct. __,
2012 WL 1468539. Thus, the Supreme Court will determine in its
October 2012 term whether Padilla is to be applied retroactively.
However, as we discuss below, we can decide this case without predicting
how the Supreme Court will decide Chaidez.
C. Iowa Code Section 822.3. Iowa Code section 822.3 provides
the statute of limitations for postconviction relief applications. Such
applications
must be filed within three years from the date the conviction
or decision is final or, in the event of an appeal, from the
date the writ of procedendo is issued. However, this
12
limitation does not apply to a ground of fact or law that
could not have been raised within the applicable time period.
Iowa Code § 822.3. We have upheld the constitutionality of this
provision. See Davis v. State, 443 N.W.2d 707, 710 (Iowa 1989)
(commenting that “[a] legitimate concern is that the process . . . end
within reasonable time limits”). There is no dispute that Perez filed his
application more than three years after the judgment in his criminal case
became final. Thus, in order to avoid the time bar of section 822.3, Perez
must be asserting a ground of fact or law that “could not have been
raised” earlier.
We agree with the State that it would be “contradictory” for Perez
to argue that Padilla is merely an application of preexisting law for
Teague retroactivity purposes while simultaneously arguing that he
could not have raised the issue within the three-year limitations period.
“A reasonable interpretation of the statute compels the conclusion that
exceptions to the time bar would be, for example, newly-discovered
evidence or a ground that the applicant was at least not alerted to in
some way.” Wilkins v. State, 522 N.W.2d 822, 824 (Iowa 1994).
We recognize that prior to Padilla, our precedents (like those of the
federal courts of appeals and most other states) rejected the notion that
counsel had a constitutional duty to advise clients about deportation
consequences. See Ramirez, 636 N.W.2d at 745–46; Mott v. State, 407
N.W.2d 581, 583–84 (Iowa 1987). But we acknowledged there was “some
merit” in the contrary position. Ramirez, 636 N.W.2d at 746; Mott, 407
N.W.2d at 583. The Ramirez case, which considered whether Mott
should be overruled, was pending at the time Perez’s conviction became
final and was not decided until almost nine months thereafter.
Furthermore, at any time our precedents could have been overturned by
13
the United States Supreme Court, which is in fact what happened when
Padilla was decided. And shortly after our decision in Ramirez, we
amended rule 2.8 to require defendants pleading guilty to be informed
that “a criminal conviction, deferred judgment, or deferred sentence may
affect a defendant’s status under federal immigration laws.” See Iowa R.
Crim. P. 2.8(2)(b)(3) (effective February 15, 2002). Hence, if Padilla does
not embody a new rule of constitutional criminal procedure, we believe
the matter could have been raised by Perez, as that term is used in
section 822.3, within the applicable time period.
The federal postconviction relief statute has a one-year statute of
limitations that is subject to tolling when the right asserted “has been
newly recognized by the Supreme Court and made retroactively
applicable to cases on collateral review.” 28 U.S.C. § 2255(f)(3) (2006).
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. See, e.g.,
Rodriguez v. United States, No. 1:10-CV-23718-WKW, 2011 WL 3419614,
*8 (S.D. Fla. Aug. 4, 2011) (“[T]he Padilla decision, if an ‘old rule,’ is not a
change in the law; and if a ‘new rule,’ it is not fully retroactive to cases
on collateral review.”); Aceves, 2011 WL 976706, at *3 (stating that if
Padilla was a restatement of existing law applicable to cases on collateral
review it “cannot [also] serve as the reason to restart the limitations
period” under 28 U.S.C. § 2255(f)); Mudahinyuka v. United States, No. 10
C 5812, 2011 WL 528804, *4 (N.D. Ill. Feb. 7, 2011) (holding that
because Padilla did not announce a new rule it was not a newly
recognized right for the purpose of tolling the one-year limitations period
14
in 28 U.S.C. § 2255(f)); United States v. Shafeek, No. 10–12670, 2010 WL
3789747, *3 (E.D. Mich. Sept. 22, 2010) (“Because the Padilla opinion
may not be considered a ‘new rule,’ [the defendant] cannot show that the
Padilla opinion should be applied retroactively [under 28 U.S.C.
§ 2255(3)]”); United States v. Dass, No. 05–140 (3) (JRT/FLN), 2011 WL
2746181, *6 (D. Minn. July 14, 2011) (“[I]t would be illogical to determine
Padilla is not a new constitutional rule of criminal procedure, but is a
right newly recognized by the Supreme Court.”).
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.
See Commonwealth v. Garcia, 23 A.3d 1059, 1064–66 (Pa. Super. Ct.
2011) (stating that the holding in Padilla was a clarification and did not
constitute a “new constitutional right” as required to qualify for
Pennsylvania’s postconviction relief statute’s timeliness exception); State
v. Cervantes, 273 P.3d 484, 487 (Wash. Ct. App. 2012) (“Padilla does not
represent a significant change in the law and therefore does not create
an exception to the one-year time limit in [Washington’s postconviction
relief statute].”).
Perez’s filings in this court, although generally helpful and well-
written, illustrate the internal contradiction in his position. In his
original appellate brief, Perez urged that the district court erred in
applying section 822.3 because “[u]ntil Padilla, immigration issues were
considered collateral consequences of a plea.” But in his later
application for further review, in which he contested the court of appeals’
view that Padilla did not have retroactive effect, Perez insisted that
“Padilla simply ‘clarified’ what may have been ambiguities in existing
law.” What Perez does not explain is how Padilla can be both a
15
clarification of the law and a ground he could not have raised within the
three-year time bar.
Accordingly, we leave it to the Supreme Court to decide next term
whether Padilla is retroactive. We hold only that if it is, Perez should
have raised his claim regarding failure to advise of immigration
consequences within the three-year limitations period of section 822.3. 4
IV. Conclusion.
For the reasons stated, we affirm the district court’s dismissal of
Perez’s application for postconviction relief.
DECISION OF COURT OF APPEALS AND JUDGMENT OF
DISTRICT COURT AFFIRMED.
4Perez also contends that at the time of his plea, he could not adequately
understand English and that he was improperly denied an interpreter in violation of
Iowa Code section 622A.2 (1999) and a recording of non-English testimony in violation
of section 622A.8. In the exercise of our discretion, we will let the court of appeals
opinion stand as the final decision on these matters. See State v. Marin, 788 N.W.2d
833, 836 (Iowa 2010).