              IN THE SUPREME COURT OF IOWA
                              No. 11–0549

                          Filed March 22, 2013


TRONG DUC LUONG NGUYEN,

      Appellant,

vs.

STATE OF IOWA,

      Appellee.



      Appeal from the Iowa District Court for Woodbury County,

Duane E. Hoffmeyer, Judge.



      Appeal from the denial of an application for postconviction relief.

AFFIRMED.



      Philip B. Mears of Mears Law Office, Iowa City, for appellant.



      Thomas J. Miller, Attorney General, Thomas S. Tauber, Assistant

Attorney General, Patrick A. Jennings, County Attorney, and Mark A.

Campbell, Assistant County Attorney, for appellee.
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PER CURIAM.

      Trong Nguyen, a Vietnamese national, pled guilty in 2000 to

attempted burglary in the third degree, an aggravated misdemeanor, in

violation of Iowa Code sections 713.2 and 713.6B (1999). He received a

two-year suspended sentence and was placed on probation for two years.

      In 2011, Nguyen filed an application for postconviction relief in the

Woodbury County District Court.      Relying on the recent United States

Supreme Court decision of Padilla v. Kentucky, Nguyen alleged he had

received ineffective assistance in violation of the Sixth Amendment to the

United States Constitution because his trial counsel had failed to advise

him in 2000 that pleading guilty would result in his removal from the

United States. See Padilla v. Kentucky, 559 U.S. 356, ___, 130 S. Ct.

1473, 1486, 176 L. Ed. 2d 284, 299 (2010) (holding that a criminal

defendant has a Sixth Amendment right to receive advice from counsel

regarding the risk of deportation before pleading guilty).

      The State moved for summary judgment on Nguyen’s application.

The State argued first that the application was untimely. See Iowa Code

section 822.3 (2011) (stating that “applications must be filed within three

years from the date the conviction or decision is final or, in the event of

an appeal, from the date the writ of procedendo is issued” except for “a

ground of fact or law that could not have been raised within the

applicable time period”). Alternatively, the State argued that Padilla does

not apply retroactively to convictions like Nguyen’s that became final

before the Padilla decision. The district court disagreed with the latter

argument but agreed with the former and granted the State’s motion for

summary judgment. Nguyen appealed.

      On appeal, Nguyen raised various arguments as to why the three-

year limitations period in section 822.3 does not foreclose his
                                       3

application.      However,     in   his    supplemental   briefing,   Nguyen

acknowledged that the question of whether Padilla should apply

retroactively was before the United States Supreme Court. See Chaidez

v. United States, ___ U.S. ___, 132 S. Ct. 2101, 182 L. Ed. 2d 867 (2012)

(granting certiorari on the question of Padilla’s retroactivity).     Nguyen

further conceded that his appeal could not succeed if the Supreme Court

denied retroactive effect to Padilla in that pending case.               His

supplemental brief stated, “[S]ometime in the October 2012 term, the

United States Supreme Court will decide whether Padilla is retroactive.

If it is not retroactive, Mr. Nguyen is going to lose.”

      We elected to hold Nguyen’s appeal pending the United States

Supreme Court’s decision on Padilla’s retroactivity.      On February 20,

2013, the United States Supreme Court rendered that decision.            See

Chaidez v. United States, ___ U.S. ___, 133 S. Ct. 1103, ___ L. Ed. 2d ___

(2013). In Chaidez, the Supreme Court declared that Padilla announced

a “new rule,” and “defendants whose convictions became final prior to

Padilla therefore cannot benefit from its holding.” Id. at ___, 133 S. Ct. at

1113, ___ L. Ed. 2d at ___; see also Teague v. Lane, 489 U.S. 288, 310,

109 S. Ct. 1060, 1075, 103 L. Ed. 2d 334, 356 (1989) (generally denying

retroactivity when a Supreme Court decision establishes a new rule of

constitutional criminal procedure).        Chaidez also noted that before

Padilla, federal and state appellate courts (including our court) had

“almost unanimously concluded that the Sixth Amendment does not

require attorneys to inform their clients of a conviction’s collateral

consequences, including deportation.” Chaidez, ___ U.S. at ___ & n.8,

133 S. Ct. at 1109 & n.8, ___ L. Ed. 2d at ___ & n.8.

      Based on Chaidez, we hold that because Padilla announced a “new

rule” of constitutional criminal procedure, it does not apply retroactively
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to convictions—like Nguyen’s—that became final before the Padilla

decision.     We,   therefore,   hold   that   Nguyen’s   application   for

postconviction relief was properly denied.

      AFFIRMED.

      All justices concur except Hecht, J., who takes no part.

      This opinion shall not be published.
