United States v. Amer, 681 F.3d 211 (5th Cir. 2012). · Go Syfert
United States v. Amer, 681 F.3d 211 (5th Cir. 2012). Cases Citing This Book View Copy Cite
34 citation events (34 in the last 25 years) across 11 distinct courts.
Treatment trajectory · 2012 → 2026 · click a year to view as-of
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At page 214 Reasoning on sixth amendment advice regarding collateral consequences13 citing casesholding Padilla does not apply retroactively2 citing courts put it this way · 11 listed here · 1 cautionary
  • Ex parte Olvera, 394 S.W.3d 572 (Tex. App.—Dallas 2012).published Cited "but see"
    (holding Padilla does not apply retroactively)
  • State v. Sosa, 733 S.E.2d 262 (Ga. 2012).published
    United States v. Amer, 681 F3d 211, 214 (5th Cir. 2012); United States v. Chang Hong, 671 F3d 1147, 1155 (10th Cir. 2011); Chaidez, 655 F3d at 694 ; Campos v. Minnesota, 816 NW2d 480, 490 (Minn. 2012); State v. Gaitan, 37 A3d 1089, 1108 (N…
  • Marroquin v. United States, 480 F. App'x 294 (5th Cir. 2012).unpublished 4 cites
    In United States v. Amer, 681 F.3d 211, 214 (5th Cir.2012), this court held, as a matter of first impression, that “the rule announced in Padilla is ‘new’ ... and accordingly, it does not apply retroactively....” 2 Appellant’s remaining ar…
  • United States v. William Crain, 877 F.3d 637 (5th Cir. 2017).published
    ([Before Padilla v. Kentucky,.] [w]e and other courts reasoned that the Sixth Amendment did not require advice about collateral consequences[.])
  • Com. v. Valerio, B., No. 1275 MDA 2014 (Pa. Super. Ct. Sept. 1, 2015).unpublished
    See United States v. Amer, 681 F.3d 211, 214 (5th Cir. 2012).
  • Commonwealth v. Descardes, 101 A.3d 105 (Pa. Super. Ct. 2014).published
    See United States v. Amer, 681 F.3d 211, 214 (5th Cir.2012).
  • Com. v. Descardes, C., No. 2836 EDA 2010 (Pa. Super. Ct. Sept. 23, 2014).published
    See United States v. Amer, 681 F.3d 211, 214 (5th Cir. 2012).
  • Ansu Abraham v. United States, 699 F.3d 1050 (8th Cir. 2012).published
    See United States v. Amer, 681 F.3d 211, 214 (5th Cir.2012); United States v. Chang Hong, 671 F.3d 1147, 1148 (10th Cir.2011); Chaidez v. United States, 655 F.3d 684, 686 (7th Cir. 2011), cert. granted, — U.S. —, 132 S.Ct. 2101 , 182 L.Ed.…
  • Alfredo Lopez v. Eric Holder, Jr., 521 F. App'x 349 (5th Cir. 2013).unpublished
    Chaidez v. United States, — U.S. -, 133 S.Ct. 1103, 1107-13 , 185 L.Ed.2d 149 (2013); see also United States v. Amer, 681 F.3d 211, 214 (5th Cir.2012).
  • Ricardo Rodriguez v. State of Tennessee, No. M2011-02068-CCA-R3-PC (Tenn. Crim. App. Sept. 27, 2012).published
    E.g., Guevara v. State, 2012 WL 938984 , at *3; see also, e.g., United States v. Amer, 681 F.3d 211, 214 (5th Cir. 2012); United States v. Mathur, No. 11-6747, 2012 WL 2819603, at *4 (4th Cir. July 11, 2012); Figuereo-Sanchez v. United -5-…
Show 1 more citing case
  • Ex Parte Jose Moreno, 382 S.W.3d 523 (Tex. App.—Fort Worth 2012).published 2 cites
    (holding that Padilla does not apply retroactively)
At page 213 Determining if a rule is new under teague doctrine5 citing casesholding that Padilla does not apply retroactively to cases on collateral review2 citing courts put it this way · 3 listed here
  • United States v. Dwayne Morgan, 845 F.3d 664 (5th Cir. 2017).published 3 cites
    Stated differently, “[a] rule is ‘new’ under Teague unless it was so ‘dictated by precedent existing at the time the defendant’s conviction became final.’ ” United States v. Amer, 681 F.3d 211, 213 (5th Cir. 2012) (quoting Teague, 489 U.S.…
  • Sadiq Adeleke v. United States, 550 F. App'x 237 (5th Cir. 2013).unpublished 3 cites
    (holding that Padilla does not apply retroactively to cases on collateral review)
  • Sergio Perez v. State of Iowa, 816 N.W.2d 354 (Iowa 2012).published
    (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 (20…)
At page 212 cited at this page2 citing cases
  • United States v. Ana Urias-Marrufo, 744 F.3d 361 (5th Cir. 2014).published 2 cites
    Our circuit has subsequently described the Padilla holding thusly: “[T]he Supreme Court held . . . that the Sixth Amendment imposes on attorneys representing noncitizen criminal defendants a constitutional duty to advise the defendants abo…
  • United States v. Juan Garcia, 689 F.3d 362 (5th Cir. 2012).published
    See Padilla v. Kentucky, — U.S.-, 130 S.Ct. 1473 , 176 L.Ed.2d 284 (2010); United States v. Amer, 681 F.3d 211, 212 (5th Cir.2012).
At page 211 “the rule announced in padilla is 'new' . . . and accordingly, it does not apply retroactively . . . .”0 citing cases1 citing court quotes it
    Other citing cases2 with no pin cite or quoted language on record
    UNITED STATES of America, Plaintiff-Appellant,
    v.
    Adeeb Naji AMER, Also Know as Ed, Defendant-Appellee
    11-60522.
    Court of Appeals for the Fifth Circuit.
    May 10, 2012.
    Published opinion
    681 F.3d 211
    2012 WL 1621005
    Curtis Ivy, Jr. (argued), Clyde McGee, IV, Asst. U.S. Attys., Oxford, MS, for Plaintiff-Appellant., Nina L. Rifkind (argued), Oxford, MS, Gulam Rafiqueddin Mahmood, Foley & Mahmood, P.C., Hoover, AL, Kenya R. Martin, Kenya R. Martin, L.L.C., Jackson, MS, Michael V. Rasmussen, Birmingham, AL, for DefendanL-Appellee.
    Jones, Owen, Higginson.
    Cited by 30 opinions  |  Published
    HIGGINSON, Circuit Judge:

    Defendant Adeeb Amer pleaded guilty to one count of distribution of Pseu-doephedrine, 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, — U.S.-, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), that the Sixth Amendment imposes on attorneys representing noncitizen criminal defendants a constitutional duty to advise the defendants 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 recognizing]” 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 retro-activity framework established in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (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, 109 S.Ct. 1060. [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. 2011), cert. granted, — U.S. -, 132 S.Ct. 2101, 182 L.Ed.2d 867 (2012); 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[*213] 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, 109 S.Ct. 1060. The Court reiterated this strict “dictated by precedent” test in Lambrix v. Singletary, 520 U.S. 518, 117 S.Ct. 1517, 137 L.Ed.2d 771 (1997), emphasizing again the test’s stringency by clarifying that “dictated by precedent” means that “no other interpretation was reasonable.” Id. at 538, 117 S.Ct. 1517 (emphases in original); see Beard v. Banks, 542 U.S. 406, 413, 124 S.Ct. 2504, 159 L.Ed.2d 494 (2004) (citation omitted); O’Dell v. Netherlands 521 U.S. 151, 156, 117 S.Ct. 1969, 138 L.Ed.2d 351 (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, 124 S.Ct. 2504, or even that a rule represents the “most reasonable” interpretation of prior precedent, Lambrix, 520 U.S. at 538, 117 S.Ct. 1517. 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, 117 S.Ct. 1969 (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, 117 S.Ct. 1517; (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, 110 S.Ct. 1212, 108 L.Ed.2d 347 (1990); and (3) whether the Justices expressed an “array of views,” O’Dell, 521 U.S. at 159, 117 S.Ct. 1969.

    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, 117 S.Ct. 1969. 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 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, 124 S.Ct. 2504. 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[*214] 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, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), “that the accused must be ‘fully aware of the direct 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, 124 S.Ct. 2504; O’Dell, 521 U.S. at 166 n. 3, 117 S.Ct. 1969; Lambrix, 520 U.S. at 538, 117 S.Ct. 1517.

    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, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), 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 misadviee that was before it.” Id.; see also Lambrix, 520 U.S. at 528-29 & n. 3, 117 S.Ct. 1517 (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”).

    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.

    1

    . 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, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990), neither party contends that either exception is applicable to this case.

    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.