                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                  April 5, 2013
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                  Clerk of Court
                                TENTH CIRCUIT



 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,                     No. 12-2074
       v.                                             (D. New Mexico)
 FILIBERTO RUIZ-ROMERO,                     (D.C. Nos. 1:11-CV-00308-MV-ACT
                                              and 2:95-CR-00650-MV-ACT-1)
              Defendant - Appellant.


            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 retroactively.

See Chaidez v. United States, 132 S. Ct. 2101 (2012) (granting certiorari).

Defendant’s brief argued as the sole ground for appeal that Padilla should apply

retroactively; he further sought abatement of the appeal pending the Supreme

Court’s decision in Chaidez. This court entered an order abating the appeal on

November 19, 2012. On February 20, 2013, the Supreme Court held that Padilla

does not apply retroactively. See Chaidez v. United States, 133 S. Ct. 1103, 1107

(2013). Despite the adverse decision in Chaidez, Defendant filed a motion

seeking to lift the abatement and requesting further briefing and oral argument.

      As we explain below, we think further briefing and argument unnecessary

and we turn to Defendant’s request for a COA. A COA will issue “only if the

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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 omitted).

Moreover, “[w]hen the district court denies a habeas petition on procedural

grounds without reaching the prisoner’s underlying constitutional claim,” the

prisoner must show “that jurists of reason would find it debatable whether the

district court was correct in its procedural ruling.” Id.

      Defendant has not made such a showing. A defendant generally must file a

§ 2255 motion within one year of the date that his conviction became final. See

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 raising a

newly recognized right made retroactively applicable by the Supreme Court. See

id. § 2255(f)(3). But Padilla is not retroactively applicable. See Chaidez, 133

S. Ct. at 1107; Chang Hong, 671 F.3d at 1159. Defendant’s motion was therefore

untimely. The district court was unquestionably correct in so ruling.

      Defendant argues for the first time in support of his request for additional

briefing and argument that the retroactivity framework set forth by the Supreme

Court in Teague v. Lane, 489 U.S. 288 (1989), is inapplicable to ineffective-

assistance claims and to § 2255 motions. Defendant has “waived these

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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


                                      Harris L Hartz
                                      Circuit Judge




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