United States v. Chang Hong – Case Brief Summary (Federal Court)

In United States v. Chang Hong, 671 F.3d 1147 (2011), the United States Court of Appeals for the Tenth Circuit held just the opposite.

The defendant's criminal conviction, based on a guilty plea, had become final on February 29, 2008.

The Tenth Circuit made it very clear that the test was whether what later became the Padilla rule would have been "compelled by existing precedent" back on February 29, 2008:

We assess whether the rule in Padilla is actually "new," based on whether a "court considering Hong's claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule announced in Padilla was required by the Constitution. (671 F.3d at 1151.)

Chang Hong concluded that "existing precedent" not only did not dictate or compel the Padilla rule but would unanimously have compelled an opposite result:

While grounded in Strickland, we still conclude Padilla is a new rule of constitutional law. Before Padilla, most state and federal courts had considered the failure to advise a client of potential collateral consequences of a conviction to be outside the requirements of the Sixth Amendment. "Eleven federal circuits, more than thirty states, and the District of Columbia have held that lawyers need not explain collateral consequences under the Sixth Amendment." All of these courts -- including our own -- thought the rule if Padilla was not dictated or compelled by Court precedent. It goes without saying these are some of the "reasonable jurists" we must survey to determine if Padilla is a new rule. (671 F.3d at 1154.)