April 5, 2013
UNITED STATES OF AMERICA, PLAINTIFF - APPELLEE,
DEFENDANT - APPELLANT.
(D. New Mexico) (D.C. Nos. 1:11-CV-00308-MV-ACT and 2:95-CR-00650-MV-ACT-1)
The opinion of the court was delivered by: Harris L Hartz Circuit Judge
United States Court of Appeals
Elisabeth A. Shumaker Clerk of Court
ORDER DENYING CERTIFICATE OF APPEALABILITY
Before HARTZ, EBEL, and MURPHY, Circuit Judges.
Defendant Filiberto Ruiz-Romero filed a motion for relief under 28 U.S.C. § 2255 in the United States District Court for the District of New Mexico. The district court denied the motion. Defendant now seeks a certificate of appealability (COA) from this court so that he may appeal the district court's decision. See 28 U.S.C. § 2253(c)(1)(B) (requiring COA to appeal denial of § 2255 relief). We deny a COA and dismiss the appeal.
In 1996 Defendant, a citizen of Mexico and a resident alien, pleaded guilty to one count of transporting an illegal alien. See 18 U.S.C. § 1324(a)(1)(A)(ii). He was ordered removed from the United States on August 14, 1997. On April 12, 2011, Defendant filed his § 2255 motion claiming that his counsel's performance was constitutionally deficient under the Supreme Court's decision in Padilla v. Kentucky, 130 S. Ct. 1473, 1486 (2010) (holding that "counsel must inform her client whether his plea carries a risk of deportation"). He asserted that his motion--filed many years after his conviction had become final--was timely because it was filed less than one year after the decision in Padilla, which, he argued, recognized a new right "made retroactively applicable to cases on collateral review" by the Supreme Court. 28 U.S.C. § 2255(f)(3). The district court denied relief, observing that this court had held that Padilla does not apply retroactively. See United States v. Chang Hong, 671 F.3d 1147, 1159 (10th Cir. 2011). Defendant filed a notice of appeal.
Less than three weeks after Defendant filed his notice of appeal, the
Supreme Court granted certiorari to decide whether Padilla applies
See Chaidez v. United States, 132 S. Ct. 2101 (2012) (granting
Defendant's brief argued as the sole ground for appeal that Padilla
retroactively; he further sought abatement of the appeal pending the
Court's decision in Chaidez. This court entered an order abating the
November 19, 2012. On February 20, 2013, the Supreme Court held that
does not apply retroactively. See Chaidez v. United States, 133 S.
Ct. 1103, 1107
(2013). Despite the adverse decision in Chaidez, Defendant filed a
seeking to lift the abatement and requesting further briefing and
As we explain below, we think further briefing and argument
and we turn to Defendant's request for a COA. A COA will issue "only
applicant has made a substantial showing of the denial of a
constitutional right." 28 U.S.C. § 2253(c)(2). This standard requires
"a demonstration that . . . includes showing that reasonable jurists
could debate whether (or, for that matter, agree that) the petition
should have been resolved in a different manner." Slack v.
McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks
Moreover, "[w]hen the district court denies a habeas petition on
grounds without reaching the prisoner's underlying constitutional
prisoner must show "that jurists of reason would find it debatable
district court was correct in its procedural ruling." Id.
Defendant has not made such a showing. A defendant generally must
§ 2255 motion within one year of the date that his conviction became
28 U.S.C. § 2255(f)(1). Defendant's motion was clearly untimely
unless it came
within the exception to the one-year limitations period for motions
newly recognized right made retroactively applicable by the Supreme
id. § 2255(f)(3). But Padilla is not retroactively applicable. See
S. Ct. at 1107; Chang Hong, 671 F.3d at 1159. Defendant's motion was
untimely. The district court was unquestionably correct in so
Defendant argues for the first time in support of his request for
briefing and argument that the retroactivity framework set forth by
Court in Teague v. Lane, 489 U.S. 288 (1989), is inapplicable to
assistance claims and to § 2255 motions. Defendant has "waived these
arguments, however, because he did not raise them on appeal in his
opening brief." United States v. Bowling, 619 F.3d 1175, 1181 n.1
(10th Cir. 2010). They are, in any event, foreclosed by our
precedent. See Chang Hong, 671 F.3d at
1150 (applying Teague retroactivity analysis to
ineffective-assistance claim raised in § 2255 motion); Daniels v.
United States, 254 F.3d 1180, 1194 (10th Cir. 2001) (Teague applies to
§ 2255 motions as well as to § 2254 applications).
We LIFT abatement, DENY a COA, and DISMISS the appeal. We DENY
defendant's request for further briefing and argument.
ENTERED FOR THE COURT
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