March 13, 2013
NHAT HUYNH, APPLICANT-APPELLANT,
STATE OF IOWA, RESPONDENT-APPELLEE.
Appeal from the Iowa District Court for Warren County, Gregory A. Hulse, Judge.
The opinion of the court was delivered by: Potterfield, J.
Nhat Huynh appeals from the district court's dismissal of his application for post-conviction relief. AFFIRMED.
Considered by Vogel, P.J., and Potterfield and Doyle, JJ.
Nhat Huynh appeals from the summary dismissal of his application for post-conviction relief as untimely. He argues dismissal was improper as he presented material issues of fact in light of recent precedent.*fn1 We affirm, finding summary dismissal was proper under our supreme court's decision in Perez v. State, 816 N.W.2d 354 (Iowa 2012), and the United States Supreme Court's decision in Chaidez v. United States, S. Ct. , 2013 WL 610201 (2013).
I. Facts and Proceedings.
Huynh is a permanent resident alien. In 2005, he pleaded guilty to possession of marijuana with intent to deliver. During the proceedings, Huynh's lawyer stated he had discussed the matter with "Huynh's immigration counsel" and that Huynh was entering into the plea agreement after "careful consideration of all the relevant facts and circumstances." The district court then asked Huynh whether he understood a conviction may affect his "status under federal immigration laws and . . . ability to get a passport or a visa." Huynh replied he understood. Huynh was convicted, and the court sentenced him to a term not to exceed five years, suspending the sentence and placing Huynh on probation for two years. He did not appeal from these proceedings and completed his term of probation.
In May of 2011, Huynh met with an immigration attorney who informed him that his conviction could cause him to be deported from the United States. He filed an application for post-conviction relief in September of 2011, alleging his counsel for his guilty plea did not inform him-or even misinformed him- regarding the immigration consequences of his conviction. This, he argued, was in violation of the requirements for effective assistance of counsel established after Huyhn pleaded guilty and was sentenced in Padilla v. Kentucky, 130 S. Ct. 1473, 1486, (2010). The district court dismissed his application, ruling it untimely. He appeals from this dismissal.
Our review of the dismissal of an application for post-conviction relief is normally for errors at law; however, where the claim raised is constitutional in nature, our review is de novo. Castro, 795 N.W.2d at 793.
Our supreme court recently considered the effect of Padilla on untimely applications for post-conviction relief in Perez. 816 N.W.2d at 356. Perez, a non-citizen of the United States, filed an application for post-conviction relief nine years after his guilty plea and conviction for drug related charges. Id. He alleged his attorney did not advise him of the immigration consequences of his guilty plea. See id. The court found his application was untimely under Iowa Code section 822.3 (2009), whether or not it applied Padilla retroactively: "[W]e 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." Id. at 361.
The United States Supreme Court has now provided us with that guidance. Chaidez, 2013 WL 610201, at *3. In Chaidez, the Supreme Court considered a claim of ineffective assistance of counsel under Padilla brought by a defendant who pleaded guilty and was convicted of an aggravated felony in 2004. Id. Immigration officials initiated removal proceedings against her in 2009. Id. The Court held Chaidez could not benefit from the requirements set forth in Padilla, concluding: "This Court announced a new rule in Padilla. Under Teague, defendants whose convictions became final prior to Padilla therefore cannot benefit from its holding." Id. at *10 (referencing Padilla, 130 S.Ct. at 1473 and Teague v. Lane, 489 U.S. 288 (1989)).
Huynh's conviction became final before the Supreme Court decided Padilla. Padilla is a new rule and only applicable to cases on direct review. Huynh also failed to file his application for post-conviction relief within the three year statute of limitations. We affirm the dismissal of Huynh's application as untimely.