Case: 11-60522 Document: 00511850575 Page: 1 Date Filed: 05/09/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 9, 2012
No. 11-60522 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellant
v.
ADEEB NAJI AMER, also know as Ed,
Defendant-Appellee
Appeal from the United States District Court
for the Northern District of Mississippi
Before JONES, Chief Judge, and OWEN and HIGGINSON, Circuit Judges.
HIGGINSON, Circuit Judge:
Defendant Adeeb Amer pleaded guilty to one count of distribution of
Pseudoephedrine, in violation of 21 U.S.C. § 841(c)(2). The conviction rendered
Amer deportable. 8 U.S.C. § 1227. He was sentenced to 30 months
imprisonment, to be followed by three years of supervised release. There was no
direct appeal and the conviction became final on February 24, 2009. Amer v.
United States, No. 06-CR-118, 2011 WL 2160553, at *1 (N.D. Miss. May 31,
2011).
On March 31, 2010, the Supreme Court held in Padilla v. Kentucky, 130
S. Ct. 1473 (2010), that the Sixth Amendment imposes on attorneys representing
noncitizen criminal defendants a constitutional duty to advise the defendants
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about the potential removal consequences arising from a guilty plea. Relying on
Padilla, Amer filed a motion to vacate his conviction pursuant to 28 U.S.C. §
2255, contending that his trial counsel rendered constitutionally ineffective
assistance by failing to inform him that his guilty plea carried a risk of
deportation. The district court granted Amer’s motion, concluding that the
holding announced in Padilla applied to Amer and that his § 2255 motion was
timely under § 2255(f)(3), which permits defendants to file motions within one
year of a Supreme Court decision “newly recogniz[ing]” a right “made
retroactively applicable to cases on collateral review.” Amer, 2011 WL 2160553,
at *1-3. The government timely appealed. For the reasons that follow, we
reverse the district court’s ruling noting also that the issue presently is pending
before the Supreme Court.
That issue is whether, under the retroactivity framework established in
Teague v. Lane, 489 U.S. 288 (1989), Padilla announced a rule that applies
retroactively to convictions that became final before Padilla was decided. In
Teague, the Supreme Court held that new constitutional rules of criminal
procedure generally are inapplicable to convictions that become final before the
rule was announced. 489 U.S. at 299-316.1 The issue of whether Padilla’s rule
may serve as the basis for Amer’s collateral challenge to his conviction that had
already become final when Padilla was decided therefore turns on whether the
rule announced in Padilla is “new” within the meaning of Teague. On this issue,
three circuit courts have already opined and the Supreme Court has granted
certiorari to address the matter. See United States v. Chang Hong, 671 F.3d
1147, 1155 (10th Cir. 2011); Chaidez v. United States, 655 F.3d 684, 694 (7th Cir.
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Although a “new” rule may still be applied retroactively if it falls within one of the two
narrow exceptions to the Teague doctrine for substantive rules and “watershed” procedural
rules, Saffle v. Parks, 494 U.S. 484, 494-95 (1990), neither party contends that either exception
is applicable to this case.
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2011), cert. granted, 80 U.S.L.W. 3429 (U.S. Apr. 30, 2012) (No. 11-820); United
States v. Orocio, 645 F.3d 630, 641 (3d Cir. 2011). We look forward to likely
resolution of this question by the Supreme Court, however, in the interim, we
join the Seventh and Tenth Circuits in holding that Padilla announced a “new”
rule within the meaning of Teague.
A rule is “new” under Teague unless it was so “dictated by precedent
existing at the time the defendant’s conviction became final.” Teague, 489 U.S.
at 301. The Court reiterated this strict “dictated by precedent” test in Lambrix
v. Singletary, 520 U.S. 518 (1997), emphasizing again the test’s stringency by
clarifying that “dictated by precedent” means that “no other interpretation was
reasonable.” Id. at 538 (emphases in original); see Beard v. Banks, 542 U.S. 406,
413 (2004) (citation omitted); O’Dell v. Netherland, 521 U.S. 151, 156 (1997). It
is thus not sufficient that a rule “could be thought to [be] support[ed]” by prior
precedent, Beard, 542 U.S. at 414, or even that a rule represents the “most
reasonable” interpretation of prior precedent, Lambrix, 520 U.S. at 538. In
determining whether a rule was “susceptible to debate among reasonable minds”
in light of the Supreme Court’s precedent, O’Dell, 521 U.S. at 160 (citation
omitted), relevant considerations include: (1) whether the decision announcing
the rule at issue purported to rely on “controlling precedent,” Lambrix, 520 U.S.
at 528; (2) whether there was a “difference of opinion on the part of . . . lower
courts that had considered the question,” Butler v. McKellar, 494 U.S. 407, 415
(1990); and (3) whether the Justices expressed an “array of views,” O’Dell, 521
U.S. at 159.
Taking these considerations in reverse order, the novelty of the rule
announced in Padilla is underscored by the “array of views” expressed by the
Justices in that case. O’Dell, 521 U.S. at 159. Justice Scalia, joined by Justice
Thomas, dissented in Padilla on the ground that the Sixth Amendment
“guarantees the accused a lawyer ‘for his defense’ against a ‘criminal
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prosecutio[n]’—not for sound advice about the collateral consequences of
conviction.” 130 S. Ct. at 1494 (Scalia, J., dissenting) (alteration in original)
(quoting U.S. Const. Amend. VI). In the dissenting Justices’ view, the Court’s
holding represented a break from the Court’s precedents: “We have until today
at least retained the Sixth Amendment’s textual limitation to criminal
prosecutions.” Id. at 1495. Similarly, Justice Alito and the Chief Justice,
concurring in the judgment, observed that the “Court ha[d] never held that a
criminal defense attorney’s Sixth Amendment duties extend to providing advice”
about collateral consequences of conviction. Id. at 1488 (Alito, J., concurring).
The concurring Justices, like the dissenters, viewed the Court’s decision as a
“dramatic departure from precedent” and a “major upheaval in Sixth
Amendment law.” Id. at 1488-91.2
Second, Padilla departed markedly from the “legal landscape” extant when
Amer’s conviction became final in February 2009. Beard, 542 U.S. at 413. Every
federal court of appeals to decide the issue—nine in all—and numerous state
appellate courts had held that the Sixth Amendment did not impose any duty to
advise noncitizen defendants of the immigration consequences of pleading guilty.
See Padilla, 130 S. Ct. at 1481 n.9 (listing cases). Our court, in particular, had
held so. Santos-Sanchez v. United States, 548 F.3d 327, 336-37 (5th Cir. 2008);
United States v. Banda, 1 F.3d 354, 356 (5th Cir. 1993). We and other courts
reasoned that the Sixth Amendment did not require advice about collateral
consequences because such consequences are not imposed within the criminal
proceeding and the Supreme Court had observed in Brady v. United States, 397
U.S. 742, 755 (1970), “that the accused must be ‘fully aware of the direct
2
Amer argues that in dismissing as unlikely the argument that its holding would open
the floodgates of litigation over guilty pleas, the majority in Padilla “strongly suggest[s]” a
belief that the decision would apply retroactively. We decline to perceive a dictate from an
inference.
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consequences’ of a guilty plea.” Banda, 1 F.3d at 356. Because Padilla abrogated
the near-universal position of the lower state and federal courts, it cannot be
said that Padilla’s holding would have been “apparent to all reasonable jurists”
at the time that Amer’s conviction became final. See Beard, 542 U.S. at 413;
O’Dell, 521 U.S. at 166 n.3; Lambrix, 520 U.S. at 538.
Finally, albeit susceptible to more debate, two old lines of precedent, one
more decisive than the other, came together at Padilla’s new “intersection of
modern criminal prosecutions and immigration law.” 130 S. Ct. at 1482.
Specifically, the Court in Padilla had to address whether its Strickland “scope
of representation required by the Sixth Amendment” extends to an affirmative
duty to advise noncitizen defendants about the immigration consequences of
pleading guilty so that “Strickland applies to Padilla’s claim.” 130 S. Ct. at 1481-
82 (quoting Commonwealth v. Padilla, 253 S.W.3d 482, 483 (Ky. 2008)). In
answering the question in the affirmative, the Court acknowledged that it was
“recognizing [a] new ground[] for attacking the validity of guilty pleas.” Id. at
1485. Thus, although the Court observed that it was applying its Strickland
test, the Court stated that this application of Strickland to guilty plea advice
about the risk of future deportation was a holding that “follows” from Hill v.
Lockhart, 474 U.S. 52, 58 (1984), which held that defendants are entitled to
effective assistance of counsel in considering whether to plead guilty. Padilla,
130 S. Ct. at 1485 n.12. Notably, the Court at the same time acknowledged that
Hill did “not control” the decision, inasmuch as “the Hill Court did not resolve
the particular question respecting misadvice that was before it.” Id.; see also
Lambrix, 520 U.S. at 528-29 & n.3 (decision announced a new rule where it
relied on supporting authority, rather than a precedent that “‘controls’ or
‘dictates’ the result”; put otherwise, asking whether “‘controlling authority’ . . .
compel[s] the outcome”).
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For these reasons, we hold that the rule announced in Padilla is “new”
within the meaning of Teague, and accordingly, it does not apply retroactively
and may not serve as the basis for Amer’s collateral challenge to his conviction
that had already become final when Padilla was decided. Therefore, we
REVERSE the district court’s order granting Amer’s motion to vacate his
sentence and REMAND for further proceedings, not inconsistent with this
opinion.
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