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It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized). State v. Frensel Gaitan (A-109) (067613) State v. Rohan Goulbourne (A-129) (068039) Argued November LaVECCHIA, 9, 2011 -- Decided February 28, 2012
J., writing for a majority ofthe Court.
In these appeals, the Court considers whether Padilla v. Kentuckv. 559 U.S. _, 130 S. Ct. 1473 (2010), is entitled to retroactive application on collateral review; and whether the defense attorneys were ineffective under State v. Nunez-Valdez, 200 N.J. 129 (2009). In 2005, defendant Frensel Gaitan, a lawful permanent resident, pled guilty to a drug offense that constituted an "aggravated felony," rendering him removable under the Immigration and Nationality Act (INA), 8 U.S.C.A. §§ 1101(a)(43)(B), 1227(a)(2)(A)(iii). Gaitan was subsequently removed and filed a PCR petition alleging ineffective assistance of counsel. Although Gaitan had responded "yes" to Question 17 on the plea form, which asked ifhe understood that he "may be deported by virtue of your plea of guilty," he asserted that counsel was ineffective for failing to warn him that his plea carried with it potential immigration consequences. The PCR court denied Gaitan's petition. The Appellate Division reversed, concluding that defense counsel's failure to provide advice on the possibility of deportation supported Gaitan's ineffective assistance of counsel claim. 419 N.J. Super. 365 (App. Div. 2011). The Court granted the State's petition for certification. 206 N.J. 330 (2011). In 2008, defendant Rohan Goulboume, a lawful permanent resident, pled guilty to a drug offense that likewise rendered him removable under the INA. At the plea hearing, both defense counsel and the court informed Goulboume that he "may very well" be deported as a result of the plea. Goulboume also reviewed and answered Question 17 on the plea form. Goulboume was subsequently charged with removal and filed a PCR petition alleging that his counsel was ineffective for failing to explain that he would be deported ifhe pled guilty and that he had the right to consult an immigration attorney. The PCR court conducted an evidentiary hearing. Although Goulboume appeared to be focused during his plea hearing on potential jail time, the PCR court gave Goulboume "the benefit of the doubt" that he would not have pled guilty had he been better advised of the deportation consequences of his plea. Accordingly, the PCR court found that the advice rendered to Goulboume was "incomplete," granted his PCR petition, and allowed him to withdraw his plea. The Appellate Division affirmed. The Court granted the State's motion for leave to appeal. 207 N.J. 226 (2011). HELD: Padilla represents a new constitutional rule oflaw that, for Sixth Amendment purposes, is not entitled to retroactive application on collateral review. Although Nunez-Valdez governs the standard of attorney performance in these cases, defendants are not entitled to relief under that decision because neither defendant was affirmatively misadvised by counselor established prejudice. 1. To establish a claim for ineffective assistance of counsel, a defendant must show deficient performance by counsel "so serious that counsel was not functioning as the 'counsel' guaranteed by the Sixth Amendment" and that the defendant was prejudiced by the attorney's performance. Strickland v. Washington, 466 U.S. 668,687 (1984). Courts are permitted to examine first whether a defendant has been prejudiced and, if not, to dismiss the claim without determining whether counsel's performance was constitutionally deficient. A defendant asserting ineffective assistance of counsel on PCR bears the burden of proving his or her right to relief by a preponderance of the evidence. To show prejudice after having entered a guilty plea, a defendant must prove that there is a reasonable probability that, but for counsel's errors, he or she would not have pled guilty. (pp. 8-10) 2. Nunez-Valdez held that when counsel provides false or affirmatively misleading advice about the deportation consequences of a guilty plea, and the defendant demonstrates that he would not have pled guilty if he had been provided with accurate information, an ineffective assistance of counsel claim has been established. Under New
Jersey law, prior to Nunez-Valdez, although attorneys were not required to warn of collateral consequences of a plea, due to concerns about affirmative misinformation that could undercut a knowing and voluntary plea, attorneys could not affirmatively give wrong or inaccurate information about immigration consequences of a guilty plea without risking an ineffective assistance claim. (pp. 10-14) 3. Padilla held that, to satisfy a defendant's Sixth Amendment right to effective assistance of counsel, an affirmative obligation to inform a client when a plea places the client at risk of deportation. Padilla no distinction between providing affmnative misadvice and providing no advice. Both the concurring dissenting opinions disagreed with the majority's conclusion that a defense attorney must affirmatively deportation consequences of a plea. (pp. 15-20) counsel has recognized and explain the
4. Understanding changes in federal immigration law is essential to comprehending the importance of legal advice regarding the immigration consequences of guilty pleas. The INA enumerates categories of noncitizens who are subject to removal, including those convicted of certain crimes such as any "aggravated felony." In the past, noncitizens who committed certain crimes had opportunities to avoid deportation or removal, either through statutory waivers or the exercise of judicial discretion. However, through changes beginning in 1990, in particular the 1996 amendments to the INA, most forms of relief for noncitizens who committed crimes qualifying as aggravated felonies were eliminated, thereby rendering them almost certain to be removed. (pp. 20-25) 5. Although there was no requirement to warn a noncitizen about the deportation consequences of a guilty plea, beginning in 1988, the plea form in New Jersey asked noncitizen defendants whether they understood that they "may" be deported by virtue of their guilty plea. That phraseology demonstrated uneasiness with any attempt to address all the nuances that could arise in a noncitizen's circumstances. A 2009 amendment to the plea form, which was in part a response to Nunez-Valdez, asked a defendant ifhe understood that he "will" be subject to deportation for pleading guilty to a crime constituting an "aggravated felony" under federal law and that he can seek legal advice on his immigration status before pleading guilty. That refinement attempted to raise a defendant's consciousness of the risk of deportation and to provide an opportunity for a defendant to seek advice from immigration counsel, but it did not require defense counsel to become versed in immigration law in order to secure a knowing and voluntary plea. (pp. 25-29) 6. Under federal law, whether Padilla applies retroactively depends on whether it announced a new rule. A new rule generally does not apply retroactively to a case where direct appeal is over and the case is only being reviewed on a collateral basis. A rule is new if it breaks new ground and is one whose result was not dictated by precedent existing at the time the defendant's conviction became final. An outcome is not dictated by precedent if it is susceptible to debate among reasonable minds. (pp. 29-33) 7. Padilla represents a new constitutional rule of law that is not entitled to retroactive application on collateral review. Padilla was not dictated by precedent and did not involve a simple application of Strickland to new facts. Prior to Padilla, the Supreme Court had never held that the Sixth Amendment requires a criminal defense attorney to provide advice about matters not directly related to their client's criminal prosecution. Now, counsel must provide new affirmative advice, and ineffective assistance claims may be substantiated on grounds other than giving affirmative misinformation. In addition, the various points of view expressed in the Padilla opinions and pre-Padilla opinions finding that there was no duty to warn clients about the risk of deportation shows that reasonable minds could disagree about anticipating Padilla's holding. Only a court holding, not professional norms, can set the standard for constitutional performance. Padilla established that it is now mandatory to advise a pleading noncitizen criminal defendant of immigration consequences, which is a new constitutional standard for providing effective assistance of counsel. (pp. 33-42) 8. Padilla goes further than Nunez-Valdez's requirements and therefore is also a new rule that is not entitled to retroactive application under a state law retroactivity analysis. Although Padilla will not apply retroactively on collateral review, Nunez-Valdez did not announce a new rule and governs the standard of attorney performance in New Jersey in ineffective assistance of counsel claims on collateral review. (pp. 42-45) 9. Nunez-Valdez does not afford relief to Gaitan because it addressed affirmative misinformation and misleading advice and, before Padilla, the law did not require counsel to affirmatively advise Gaitan on the deportation consequences of his conviction. The Court's determination in Nunez-Valdez to refine the plea form does not render
as misadvice the information that was provided to Gaitan through the then-existing plea form, nor did the revised form vest further rights in Gaitan or others who seek to have their pleas reviewed collaterally. The changes reflect the difficulty of predicting with certainty the immigration consequences of a guilty plea. Finally, Gaitan failed to provide support for his assertion that he would not have pled guilty had he known of the deportation consequences. (pp.45-48) 10. The PCR court did not apply the correct PCR standard in giving ''the benefit of the doubt" to Goulbourne that he would not have pled guilty. Goulbourne failed to meet his burden of proving, by a preponderance of the evidence, that he was prejudiced because, at the time of the plea and sentencing, he was concerned with potential jail time, not the deportation consequences of his plea. In addition, there was no deficient performance of Goulbourne's counsel like what occurred in Nufiez- Valdez. Goulbourne did not receive wrong advice under then-existing law and the immigration consequences were emphasized as real and beyond the control of the criminal justice system. (pp. 48-54) 11. The Padilla decision applies prospectively. It is important for criminal defense attorneys to secure accurate advice for their clients on whether a guilty plea to certain crimes will render them mandatorily removable, and numerous resources are available to help attorneys do this. Even if removal is not mandated, counsel must highlight for noncitizen clients that entering a guilty plea will place them at risk of removal and that they may seek legal advice on potential immigration consequences. Finally, under Nufiez-Valdez, if counsel provided affirmatively misleading advice about the removal consequences of a guilty plea, then deficiency may exist for purposes of establishing a prima facie ineffective assistance of counsel claim entitling defendant to an evidentiary hearing in a PCR proceeding. (pp. 54-57) The judgments ofthe Appellate Division are REVERSED, court for further proceedings consistent with the Court's opinion. and the matters are REMANDED to the trial
JUSTICE ALBIN, DISSENTING, joined by JUSTICE LONG, expresses the view that at the time of Gaitan's plea, based on then-professional norms, defense counsel had an obligation to inform their noncitizen clients that a guilty plea carried the risk of adverse immigration consequences, including deportation; therefore, Padilla did not create a new constitutional rule. CHIEF JUSTICE RABNER, JUSTICES HOENS and PATTERSON, and JUDGE WEFING (temporarily assigned) join in JUSTICE LaVECCHIA's opinion. JUSTICE ALBIN filed a separate, dissenting opinion in which JUSTICE LONG joins.
SUPREME COURT OF NEW JERSEY A-109 September Term 2010 067613 A-129 September Term 2010 068039
STATE OF NEW JERSEY, Plaintiff-Appellant, v. FRENSEL GAITAN,
Defendant-Respondent. STATE OF NEW JERSEY, Plaintiff-Appellant, v. ROHAN GOULBOURNE, Defendant-Respondent.
9, 2011 - Decided
On certification to the Superior Court, Appellate Division, whose opinion is reported at 419 N.J. Super. 365 (2011). (A-109-10, State v. Frensel Gaitan) On appeal from the Superior Court, Appellate Division. (A-129-10, State v. Rohan Goulbourne) Frank J. Ducoat, Deputy Attorney General, argued the cause for appellant State of New Jersey (Paula T. Dow, Attorney General, attorney) . Carol M. Henderson, Assistant Attorney General, argued the cause for appellant
State of New Jersey General, attorney).
(Paula T. Dow, Attorney
Mark H. Friedman, Assistant Deputy Public Defender, argued the cause for respondent Frensel Gaitan (Joseph E. Krakora, Public Defender, attorney). Christopher T. Howell argued the cause for respondent Rohan Goulbourne. Jeffrey S. Mandel argued the cause for amici curiae Association of Criminal Defense Lawyers of New Jersey and American Civil Liberties Union of New Jersey (PinilisHalpern, attorneys).
of the Court. petitions
These companion for post-conviction
arose out of defendants'
In both cases, defendants for drug rendered
were lawful permanent offenses and entered
who were indicted
The guilty pleas
both defendants Act
removable1 under the Immigration
and Nationality that he to the
(INA), 8 U.S.C.A. ineffective
1227 (a) (2).
set forth in State v. Nunez-Valdez, 559 U.S.
200 N.J. 129 , 130 S. Ct. 1473, provided either
(2009), and Padilla v. Kentucky, 176 L. Ed. 2d 284 (2010), because
lOver the past century, amendments to federal immigration statutes changed the terminology used in that area of law. "Removal" is the current statutory term used for what was known in the past as "deportation." See Padilla v. Kentucky, 559 U.S. , 130 S. Ct. 1473, 1480 n.6, 176 L. Ed. 2d 284, 292 n.6. For purposes of this opinion, we use the current statutory language of removal.
no or incomplete
about the immigration the advice
of a guilty plea, rendering In Nunez-Valdez, demonstrated
false and misleading.
supra, we agreed that defendant ineffective assistance of counsel
that he received
under Sixth Amendment provided
counsel had would not flow augmented the
false advice assuring
guilty plea, and substituted misleading information
that with affirmatively deportation consequences
plea of guilty,
that was of material plea. further
at the time of his Court went now
200 N.J. at 140-42. in Padilla,
must advise their clients of pleading assistance
guilty or risk providing of counsel. 559 U.S. at
, 130 S. Ct. at 1484, 176 assistance of
L. Ed. 2d at 297.
counsel was not fixed, for constitutional Padilla. The present retroactive appeals squarely
raise the question
of the Because
of the broader
of the shared issue of Padilla's these appeals.
To anchor our analysis defendants, giving
of the legal question
we begin with a brief
summary of the circumstances Additional factual detail
rise to their PCR petitions. hereinafter. 16, 2004, defendant for third-degree
On November in Camden County dangerous
Gaitan was indicted of a controlled
2C:35-10(a) (1); third-degree 2C:35-5(a) (1), of a CDS within He pled guilty one on
of a CDS to a minor, 2C:35-8;
(b) (3), and N.J.S.A. one thousand
feet of a school, N.J.S.A.
to the charge of third-degree thousand October
of a CDS within
feet of a school on June 27, 2005, and was sentenced 7, 2005, to five years' probation.
Gaitan did not file
a direct appeal. In 2008, based on the drug conviction, aggravated U.S.C.A. removed. alleging responded
felony, a removable
under the INA, see 8
1101 (a) (43) (B), 1227 (a) (2) (A) (iii), Gaitan was filed a PCR petition of counsel. on May 28, 2008, Although Gaitan had
He thereafter ineffective
~yes" to Question
17 on the plea form, which asked ~Do States citizen or
you understand national,
that if you are not a United by virtue
you may be deported that counsel
of your plea of guilty,"
failed to warn him that his plea immigration consequences. That
carried with it potential
assistance on March
The PCR court denied defendant's affirmative
20, 2009, finding that defendant's Question 17 implied
that he was aware of his plea's possible status. reversed, concluding that defense of of
impact on his immigration The Appellate counsel's
failure to provide constituted
advice on the possibility deficiency of counsel
deportation Gaitan's Gaitan,
for the purposes claim. State v.
419 N.J. Super. 365, 369-70 of whether
(App. Div. 2011).
held that, regardless deficiency remand constituted
of attorney to a
a new rule, Gaitan was entitled hearing on his claim.
for an evidentiary
Id. at 373-74. which
The State then filed a petition was granted. State v. Gaitan,
for certification, (2011).
206 N.J. 330 B.
Rohan Goulbourne by a Passaic
in July of
2007 and indicted fourth-degree
County Grand Jury on charges
of a CDS, N.J.S.A. distribution
2C:35-10(a) (3); two 2C:35of
counts of fourth-degree 5 (a) (1) and a CDS within 2C:35-7.1(a) distribution
of a CDS, N.J.S.A.
(b) (12); two counts of third-degree five hundred and N.J.S.A.
feet of a public building, 2C:35-5(a);
two counts of third-degree feet of a school,
of a CDS within
third-degree N.J.S.A. 2C:35-
possession 5 (a) (1) and
of a CDS with intent to distribute, (b) (11); third-degree within possession
of a CDS with
intent to distribute N.J.S.A. 2C:35-7
one thousand 2C:35-5(a);
feet of a school, second-degree within five and
possession hundred N.J.S.A. N.J.S.A.
of a CDS with intent to distribute N.J.S.A.
feet of a public building, 2C:35-5(a);
2C:29-2 (a) (2). negotiations Goulbourne between the prosecutor and the to one count one
agreed to plead guilty
of possession thousand
of a CDS with intent to distribute The prosecutor,
feet of a school. a sentence period
in return, with a 2008
of three years'
At a March
plea hearing, Goulbourne the plea. questions
and the court informed as a result of answered all the
that he "may very well" be deported The court also noted that Goulbourne on the plea form, which included
17, and that
he signed the form after reviewing Satisfied guilty, that Goulbourne knowingly
it with his attorney. and voluntarily was pleading the
the court accepted sentence,
The court imposed did not appeal.
to the INA, on July 11, 2008, Goulbourne
charged with removal based on his conviction which qualified as an aggravated felony.
for a CDS offense,
(43) (B), 1227 (a) (2) (A) (iii). and Customs petition Enforcement
He was paroled
to u.S. Immigration filed a PCR
on May 11, 2009.2
that his counsel was if
for failing to explain
that he would be deported
he pled guilty and for neglecting speak with an immigration evidentiary testimony, appeared hearing
to advise him of his right to The PCR court conducted After reviewing the an
attorney. 8, 2010.
the PCR court determined
to be focused during his plea hearing
on how much jail
time he would be required Goulbourne ~the benefit
to serve, the PCR court would give
of the doubt" that he would not have advised of the certainty of an
pled guilty had he been better deportation immigration rendered and, specifically, attorney.
of his right to consult
finding that the advice the PCR court granted to withdraw his plea.
was ~incomplete," Goulbourne
the PCR petition The Appellate
in an unpublished
Pursuant to 8 U.S.C.A. § 1226, the federal government is authorized to take into custody and, pending a final decision whether they are to be removed, detain noncitizens who have committed crimes subjecting them to removal.
The Attorney Prosecutor's the motion, consolidated
County We granted
for leave to appeal. 207 N.J. 226
State v. Goulbourne,
the appeal with the appeal II. A.
in State v. Gaitan.
The Sixth Amendment
of the United guarantee
States Constitution criminal defendants
the New Jersey Constitution right to counsel, "the effective Washington,
which right requires of counsel."
that defendants Strickland v.
466 U.S. 668, 686, 104 S. Ct. 2052, 2063, 80 L. Ed. v. Richardson, 397 U.S. 759,
2d 674, 692 (1984) (quoting McMann 771 n.14,
90 S. Ct. 1441, 1449 n.14, 25 L. Ed. 2d 763, 773 n.14 105 N.J. 42, 58 (1987) (adopting assistance of counsel claims To a
(1970)); see State v. Fritz, Strickland standard
under Article establish defendant
10 of New Jersey Constitution). assistance of counsel,
a claim for ineffective must show deficient
performance as the
"so serious by
that counsel was not functioning the Sixth Amendment" the attorney's
'counsel' guaranteed was prejudiced by
and that the defendant Strickland,
supra, 466 U.S. at 687, supra, 105 N.J.
90 S. Ct. at 2064, 25 L. Ed. 2d at 693; Fritz, at 58; see also R. 3:22-1, for post-conviction -2 (establishing
right to petition for relief,
relief and setting
which include ineffective
federal and state constitutional of counsel claims). defendants
The right to counsel competent (2002). counsel." Attorneys
the right "to
State v. DiFrisco,
174 N.J. 195, 220 of "reasonableness supra, 466 Deficient acts or
are held to a standard norms."
u.S. at 688, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. performance omissions competent is established fell by proving that "counsel's
'outside the wide range of professionally considered in light of all the 187 N.J. 293,
of the case."
State v. Castagna,
(2006) (quoting Strickland,
supra, 466 u.S. at 690, 104 S. And, the evaluation performance Ibid. as to
Ct. at 2066, 80 L. Ed. 2d at 695). the reasonableness of an attorney's
must be "'viewed (quoting
as of the time of counsel's Strickland,
supra, 466 u.S. at 690, 104 S. Ct. at 2066, 80 L. Although a demonstration of prejudice analysis, courts a
Ed. 2d at 694). constitutes
the second part of the Strickland leeway to choose to examine
are permitted defendant
has been prejudiced,
supra, 466 u.S.
at 697, 90 S. Ct. at 2069, 25 L. Ed. 2d at 699, and if not, to dismiss the claim without determining whether counsel's Ibid. With respect asserting
was constitutionally of the Strickland
to both prongs
test, a defendant
on PCR bears the burden
his or her right to relief by a preponderance See State v. Echols, 173 N.J. 583, 593 199 N.J. 344, 357
evidence. v. Goodwin,
(2002). standard applies of
It is well established
that the Strickland of ineffective
with equal force to assertions counsel associated
with the entry of guilty pleas as to trial 474 u.S. 52, 57, 106 S. Ct. (1985). In the specific entered a guilty plea, probability
derelictions. 366, 369-70, context
See Hill v. Lockhart, 88 L. Ed. 2d 203, 209
of showing prejudice
must prove ~'that there is a reasonable errors,
that, but for counsel's
[he or she] would not have pled on going to trial.'" (quoting DiFrisco, Nufiez-
guilty and would have insisted Valdez, supra, 200 N.J. at 139
N.J. at 457). With those general critical standards in mind, we turn to the two assistance followed of counsel the entry of a
claims in which immigration guilty plea. decision. We begin
first with our 2009 Nufiez-Valdez
B. In Nufiez-Valdez, supra, this Court held that when counsel provides false or affirmatively consequences misleading advice about the
of a guilty plea, and the defendant
demonstrates provided counsel
that he would not have pled guilty information,
if he had been assistance of
claim has been established. of passing
200 N.J. at 131.
In 1987, from
in the context
on a claim of inadequate and voluntary,
a court accepting had expressed pleading certain
a plea as knowing
this Court to warn a
the view that there was no requirement
client that his or her plea would result in consequences. See State v. Heitzman, 107
N.J. 603, 604 (1987) (holding that defendant of penal consequences, criminal pleas). and not collateral
need only be warned of
noted that immigration designation. reflected See an abiding to a
ramifications ibid. concern pleading plea.
That said, our case law nevertheless about affirmative misinformation
client that could undercut State v. Bellamy,
and voluntary (2003); about the of
See, e.g., Howard,
178 N.J. 127, 142 (1988).
110 N.J. 113, 125 from affirmative
the repercussions serious
that could flow from a plea in respect status.
a defendant's it was hardly attorney
Thus, prior to Nunez-Valdez,
under New Jersey law that an give wrong or inaccurate information risking See
could not actually
about immigration an assertion
of a guilty plea without ineffective assistance.
of having provided
State v. Chung, (addressing counsel's
210 N.J. Super.
(App. Div. 1986) with
prong in connection
advice on immigration
of plea, but of
finding no ineffective
of counsel due to absence counsel);
any actual misrepresentation v. Garcia,
see also State (noting
320 N.J. Super. 332, 339-40
(App. Div. 1999)
that misinforming that would evidentiary affirmatively
client can result in ineffective
support vacation hearing
of guilty plea, and remanding
to review claim that client was about deportation Nunez-Valdez, consequence when that
guilty plea was entered).3 principle in its holding.
In Nunez-Valdez, fourth-degree equivalent mandatory criminal
Jose Nunez-Valdez an offense
pled guilty to that was of in
to an aggravated deportation.
200 N.J. at 140.
It was undisputed first
the record before attorney, Aaron
the PCR court that Nunez-Valdez's
advised him that a guilty plea Id. at 132, 140. Troy Archie, who
would not have any immigration Nunez-Valdez later obtained
3 Research also discloses one previous Law Division case going further, and granting post-conviction relief based on insufficient advice about immigration consequences. See State v. Vieira, 334 N.J. Super. 681, 688 (Law Div. 2000) (granting post-conviction relief and allowing plea withdrawal due to counsel's failure to address deportation issue with resident alien defendant) . 12
that he told defendant
id. at 133-34; however,
Nufiez-Vald~z testified told
stating that Archie,
like the first attorney, consequences,
him the plea would have no immigration
id. at 133. deficient
The peR court found that Nufiez-Vald~z established performance deported misadvice because Smith erroneously
told him he would not be to that previous -- was inexact was mandatory The peR to trial
-- that deportation
was a possibility
and misleading and, therefore, court accepted
to Nufiez-Vald~z because a certain consequence.
deportation Id. at 135.
that Nufiez-Vald~z would have proceeded
had he known that a guilty plea would result in mandatory deportation, demonstrated id. at 141, and therefore that he was prejudiced, Division found that he had
id. at 143.
The Appellate factual findings
was of the view that the peR court's and reversed the grant of and
were clearly mistaken Id. at 135. Division's
peR to Nufiez-Vald~z. reversed the Appellate credible
We granted judgment,
sufficient Id. at 131.
the peR court's due the findings
findings. of the
peR court, we held that Nufiez-Vald~z was misinformed about the deportation consequences
of his plea, id. at 141-42, the first prong of the
and that such misinformation Strickland
test, id. at 140-142;
and again giving due deference
to the PCR court, we further affirmed that Nunez-Valdez had not materially consequences Because
the PCR court's
would not have pled guilty misadvised
if his attorneys
him about the immigration
of his plea, id. at 142-43. our holding was rooted in the belief assistance of counsel in New Jersey to provide
law that it is ~ineffective misleading, plea," material
in an uninformed whether or
it was irrelevant consequences
to our determination were regarded
immigration ~collateral." pending might
Id. at 139-40.4 of the United
To the extent that the thenStates Supreme Court in Padilla we elected to base our Ibid. Thus, our right to
determination holding counsel,
on state constitutional
that under the state constitutional assistance of counsel
claim could be misleading an aggravated would
based on the provision
of false and affirmatively that constituted
advice about a plea to an offense felony under federal trigger mandatory immigration
law that therefore Ibid.
Although the penal-versus-collateral dichotomy sharply separated the parties and amici in Nunez-Valdez, see id. at 13637, 139 n.2, in actuality, all involved were equally concerned about how to ensure that a knowing guilty plea is entered by a noncitizen defendant. Id. at 136-37. Accordingly, significant attention was directed at the adequacy of the current plea form, which had only recently been amended, and the Court concluded that further refinement was required. Id. at 143-44.
We thus turn to the ground C. The United Padilla in 2010. States Supreme In reversing
covered by the Padilla holding.
Court issued its decision the Kentucky Supreme
denial of post-conviction
relief to Jose Padilla, deportation because
citizen who faced automatic lawful United offense,
after forty years as a to a drug
he pled guilty that
Court agreed with Padilla
constitutionally his conviction automatic
counsel would have advised him that made him subject to , 130 S.
for drug distribution Padilla,
supra, 559 U.S. at
Ct. at 1478, 176 L. Ed. 2d at 290.5 Notably, collateral the Court rejected analysis application of a direct-versus-
to the issue at hand, pointing between direct and
out that it had "never applied collateral reasonable Id. at consequences professional
to define the scope of constitutionally assistance required under Strickland." (quotation of
, 130 S. Ct. at 1481, 176 L. Ed. 2d at 293 Moreover, because
of the "unique nature
The Kentucky Supreme Court denied PCR without the benefit of an evidentiary hearing based on the view that counsel's failure to advise Padilla of the collateral immigration consequences of his plea was not a basis for PCR. Due to that posture of the case, the Supreme Court did not address whether Padilla had demonstrated prejudice as required by the second prong of Strickland's analysis. Padilla, supra, 559 U.S. at , 130 S. Ct. at 1487, 176 L. Ed. 2d at 299.
deportation," a distinction appropriate
the Court found it unnecessary between direct and collateral of the Strickland
to consider consequences
whether is even
rd. at the
, 130 S. Ct. at 1481, 176 L. Ed. 2d at 293.6 Court determined of evaluating deportation the distinction
to be nill-suited"
to the task
on the risk of rd. at , 130 S. Ct. is
to a guilty plea.
at 1482, 176 L. Ed. 2d at 294. a nparticularly criminal severe 'penalty'
that deportation related
, 130 S. Ct. at 1481, 176 L. Ed. 2d the significance of nrecent changes an id.
at 293, the Court reviewed in our immigration automatic at result law
[that] have made removal nearly
for a broad class of noncitizen
, 130 S. Ct. at 1481, 176 L. Ed. 2d at 294. the Court declared removed that nadvice regarding
is not categorically Amendment
from the ambit of the Sixth rd. at , 130 S. Ct. at 1482, in a Strickland
right to counsel."
176 L. Ed. 2d at 294. analysis
The Court thus engaged
in light of that pronouncement.
That said, the Court expressed awareness of the dichotomy's use in analyzing ineffective assistance claims, noting that the Kentucky Supreme Court was nnot alone" in finding the distinction meaningful when determining whether the failure to advise on a collateral consequence is cognizable as an ineffective assistance of counsel claim. Padilla, supra, 559 u.S. at , 130 S. Ct. at 1481, 176 L. Ed. 2d at 293.
After of counsel, professional
scope of reasonable
the Court found that n[t]he weight norms supports
the view that counsel must advise Ibid. In
her client regarding
the risk of deportation." Justice Stevens,
support of that finding, observed American that nauthorities Bar Association,
for the Court, the
of every stripe -- including criminal defense and public
authoritative -- universally
and state and city bar attorneys to advise
as to the risk of deportation clients." Id. at
, 130 S. Ct. at 1482, 176 L. Ed. 2d at 295 marks omitted). Creating a two-tiered
(citation and quotation analytical assistance, deportation consequences structure
the duty of effective cases where it is clear that
the Court distinguished is certain,
from cases where the immigration
of a plea are less clear, and then stated:
[A] criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear. [Id. at 2d at 296.] However, 130 S. Ct. at 1483, 176 L. Ed.
the Court recognized misadvice
providing that to
limit the holding counsel
to affirmative to remain
would absurdly of great
silent on matters
even when answers to misadvice
would "deny a class of clients the most rudimentary available." advice
least able to represent on deportation
even when it is readily
130 S. Ct. at 1484, 176 L. Ed. 2d at 296. concluded available that counsel is duty-bound
The Court in Padilla a client "with and declared
advice about an issue like deportation"
that "the failure to do so" satisfies prong in Strickland's analysis."
the attorney-deficiency , 130 S. Ct. at
1484, 176 L. Ed. 2d at 297. satisfy a defendant's assistance of counsel,
Thus, the Court held that, to right to effective obligation to
counsel has an affirmative when a plea places
inform a client-defendant of deportation. at 298. Justice Alito penned Roberts. Id. at Id. at
the client at risk
, 130 S. Ct. at 1486, 176 L. Ed. 2d
joined by Chief Justice
, 130 S. Ct. at 1487, 176 L. Ed. 2d at 299 Expressing counsel, strong divergent views the
(Alito, J., concurring). about the role of defense duties defense counsel
Justice Alito clients
owes to noncitizen
as follows: as
(1) they must not give unreasonably happened in Padilla;
(2) they must alert the client that a plea
may have deportation clients
(3) they must tell an
that if they wish to know more, they should consult attorney. Ibid. Justice Alito conclusion specifically
with the majority's
that a defense
must affirmatively a plea will be. at 299-300. departure
explain what the deportation Id. at
, 130 S. Ct. at 1487, 176 L. Ed. 2d that requirement as a ~dramatic a major upheaval
from precedent," law."
one that ~mark[ed] Id. at
in Sixth Amendment
, 130 S. Ct. at 1488, 1491, for position
176 L. Ed. 2d at 300, 304. ~casually
He also chided the majority and unanimous
dismiss [ing] the long-standing courts with respect
of the lower federal criminal defense
to the scope of
counsel's Id. at
duty to advise on collateral , 130 S. Ct. at 1491, 176 L. Ed. 2d at
consequences." 304. In dissent, referred
joined by Justice to require
to the Court's
legal advice about ~no basis Id. at in , 130
of a plea as having
text or in principle"
of the Sixth Amendment.
S. Ct. at 1495, 176 L. Ed. 2d at 308-09 dissenting). guarantees criminal In the dissent's a defendant
view, the Sixth Amendment against a
a lawyer ~for his defense
for sound advice about the Id. at , 130 S.
of a conviction."
Ct. at 1494, 176 L. Ed. 2d at 308 (quotation marks omitted). as clearly outside Id. at a collateral
in original) deportation
And, the dissent viewed rendering
the scope of the Sixth Amendment's
right to counsel. Indeed, that
, 130 S. Ct. at 1495, 176 L. Ed. 2d at 309. Justice Alito's argument, the dissent
going beyond because
it is a collateral about immigration assistance
even affirmative could not constitute , 130 S. Ct. at
176 L. Ed. 2d at 308. III.
The aforementioned significant Padilla
in particular wrought
for their emphasis on the landscape The variety
on the change the
of ineffective of views expressed that the In the in
share common recognition in immigration
law have been vast.
who committed or removal,
crimes had opportunities statutory However, who
to avoid deportation waivers
either through discretion.
or the exercise
in 1990, most forms of relief crimes qualifying thereby
for noncitizens felonies certain were
as aggravated them almost
eliminated, The changes
to be removed. background
information before us.
that sets the stage for the retroactivity Because understanding the evolution
of federal in order
law over the past century the importance
is also essential defendants
to comprehend advice
of guilty pleas, immigration law
summary of relevant
developments. A. Congress first enacted a statute limiting immigration from entering in the
1875, when it barred prostitutes United States.
See An Act Supplementary
to the Acts in Relation
ch. 141, 18 Stat. 477; see also John D. Skrentny Comprehensive Entrenchment, Immigration Reform and the 325, for
& Micah Gell-Redman, Dynamics 333-34 of Statutory (2011).
120 Yale L.J. Online expanded
inadmissibility established committed
such that, by 1917, Congress for crimes and Nationality (1917)
could be deported
in the United
Act of 1917, Pub. L. No. 64-301, § 19, 39 Stat. 874, 889 (rendering noncitizens turpitude); New Chapter Deportation Residents?, deportable for committing
crimes of moral A
see also Anita Ortiz Maddali, in Supreme Constitutes Court Jurisprudence Punishment
Padilla v. Kentucky: on Whether Permanent In 1922,
for Lawful (2011).
61 Am. U. L. Rev. 1, 16-17
narcotics trigger (1922) .
were added to the list of crimes that could See Act of May 26, ch. 202, 42 Stat. 596
Subsequently, been amended federal
the INA, and although
it has for
to serve as the basis and removal of
See 8 U.S.C.A.
1101 to 1537; see also Charles
Gordon et al., 1 Immigration (2011) . Section
1.02 (3) (c), 2.03 categories those substance of of
237(a) (2) of the INA enumerates including
noncitizens convicted offense
who are subject to removal,
of crimes of moral turpitude,
other than simple possession and any "aggravated
of small amounts 8 U.S.C.A.
The list of offenses set forth in Section includes, controlled
101(a) (43) of the INA, is extensive, such crimes as illicit trafficking trafficking
among others, substance,
crimes against minors, year of imprisonment,
crimes resulting offenses
in at least one resulting in at
theft or burglary
least one year of imprisonment, and certain human trafficking
certain money offenses. felony)
See 8 U.S.C.A. More recent Reform
1101 (a) (43) (defining aggravated legislation, including
Act of 1996
(IIRAIRA), expanded aggravated
that are considered
Pub. L. No. 104-208, Importantly, removal
321, 110 Stat. 3009, 3627-28 convicted
of a noncitizen see 8 U.S.C.A.
of an aggravated
felony is mandatory,
1227 (a) (2) (A) (iii) ("Any felony at any time after
alien who is convicted admission available,
of an aggravated
is deportable."), a near certainty.
and with few forms of relief See Padilla, supra, 559 u.S. at
, 130 S. Ct. at 1480, 176 L. Ed. 2d at 292. Despite certain authorizing removal based on the commission Congress initially vested of
discretion level to
with sentencing recommend
judges at both the state and federal noncitizen not actually
that a removable supra, at 17.
be removed. called a
See Maddali, judicial effect.
That procedure, deportation
recommendation See ibid.;
(JRAD), had binding
see also 8 U.S.C.A.
1251(b) (2) (1990) several
(setting forth JRAD procedure). waiver and relief provisions, 212(c), 212(h),
The INA also includes
such as those set forth in that allowed some
244, and 245(i), for removal
who were eligible
to escape that
See, e.g., 8 U.S.C.A.
1182, 1254, and 1255 see also Maddali, from
(setting forth certain waiver provisions); supra, at 17 (describing deportation) . Section
In 1990, Congress for noncitizens Immigration thereby removal
began eliminating aggravated
those forms of relief felonies. The JRADs,
Act of 1990 repealed judicial
in cases involving felonies. See
Pub. L. No. 101-649,
505, 104 Stat. 4978, 5050
(1990); see Law: &
also Stephen H. Legomsky, Asymmetric Incorporation
The New Path of Immigration of Criminal Justice Norms,
64 Wash. Congress making
Lee L. Rev. 469, 498 restricted
In the same statute, of Section
anyone who served a term of at least five years' for an aggravated felony ineligible.
See Pub. L. No. 101-649, supra, at
511, 104 Stat. 4978, 5052 18. The INA was amended
(1990); see also Maddali, again in 1996, pursuant and Effective
441(d) of the Antiterrorism
Death Penalty Act aggravated
(AEDPA), which made all noncitizens felonies ineligible
for 212(c) waivers.
See Pub. L. No. 104-
132, 110 Stat. 1214 Deportations,
(1996); see also Lupe S. Salinas, and the 1996 Immigration Acts: A Modern
Look at the Ex Post Facto Clause, (2004). IIRAIRA further
22 B.U. Int'l L.J. 245, 255-56 the availability of waivers,
and other previous
forms of relief. (1996); see
See Pub. L. No. 104-208, also Gordon,
348, 110 Stat. 3009, 3039
supra, at § 2.04 (14) (c).
Because noncitizen effective inevitable
of those changes
to immigration offense
laws, "if a after the 1996 is practically 130 S. Ct.
date of these amendments, .
at 1480, 176 L. Ed. 2d at 292. B. As noted, well prior to our holding Court had taken the position not vulnerable defendant because in Nunez-Valdez, this
that a defendant's
guilty plea is the
the court nor counsel warned consequences
about the deportation
of the guilty plea. need be
See Heitzman, informed
supra, 107 N.J. at 604 ("[DJefendant
only of the penal consequences consequences, such as .
of his plea and not the
collateral status .
. effect on immigration marks omitted)). consequences was The
." (citation and quotation between penal and collateral
distinction reaffirmed Johnson,
by this Court as recently
See State v.
182 N.J. 232, 236 for informing
(2005) ("Although a court is not a defendant of all consequences the court must ensure
from a guilty plea, at a minimum
that the defendant that are at 122).
is made fully aware of those consequences supra, 110 N.J.
'direct' or 'penal.''') (citing Howard,
That said, with Nunez-Valdez,
our Court agreed with the advice from counsel about
trial court that wrong or inaccurate
the immigration would result assistance
from entry of a guilty plea, presented 200 N.J. at 141-42 holding).
of counsel. deficiency
(finding support reflected and
trial court's previous
that a plea cannot be entered affirmatively
when an attorney information
gives wrong or defendant about see also to State v. to withdraw of plea);
to a pleading
the consequences Bellamy, pleading Nichols,
of a guilty plea.
See id. at 139-42; importance
supra, 178 N.J. at 142 client of understanding 71 N.J. 358, 361
(1976) (allowing defendant about material element
plea where he was misinformed Garcia,
supra, 320 N.J. Super. at 339-40 when defendants . notwithstanding are provided
(stating that pleas may with affirmative
misinformation) Moreover, collateral
was a potential supra,
of a guilty plea, see Heitzman, that notice
107 N.J. at 604, our Court ensured consequence inclusion plea form. was provided
of that possible through
to a criminal addressing
of a question
in our required 17, and was
In 1988, what is today known as Question 16, was incorporated # 1-1988
then labeled Question See Administrative added in response
into the plea form. It was dissent,
(Jan. 15, 1988). Heitzman
to Chief Justice Wilentz's
which had urged that defendants consequences
of the deportation (Wilentz,
of their guilty pleas, and expressed
107 N.J. at 606-07
C.J., dissenting), of deportation, obviously
that ~the possibility consequence, life," id. at
even if viewed
as a collateral
can have a severe impact on a person's In its original
606 (citation omitted). asked if a defendant ~may be deported Administrative
form, the question that he
who is not a citizen understood of [the] plea of guilty." (Jan. 15, 1988).
The question in immigration millennium
in that form throughout
law during the 1990s and early years of the new removed discretion from the system
and tilted more and more toward Eventually, first asking
deportation. into two parts
the plea form question if the defendant
was a citizen
and, if the response that he
was no, then asking whether ~may be deported Administrative by virtue
of [his] plea of guilty." (Oct. 8, 2008), available at
http://www.judiciary.state.nj.us/directive/2008/dir_14 (emphasis added). two-part question, Plainly, despite the added emphasis remaining
08.pdf of the in the
second part to the question attempt to craft a question
that could come close to addressing
the many nuances
that could arise in a noncitizen's
2009 amendment to concerns
which was in part a response Valdez, added more subparts,
into a defendant's for felony" his
that he will be subject to deportation
guilty to a crime constituting law and asked whether
right to seek legal advice on his immigration pleading guilty. Administrative Directive
status before (Sept. 4,
2009), available 2009/dir defense attempt
at http://www.judiciary.state.nj.us/directive/ Even that refinement an immigration did not obligate counselor, but it did
to raise a defendant's and to provide specialized
of the risk of to law.7
deportation seek counsel
for a defendant
in the finer points
7 As of August 2011, the plea form was again amended. See Administrative Directive # 05-11 (Aug. 1, 2011), available http://www.judiciary.state.nj.us/directive/2011/ dir 05 11.pdf. Question 17, in its most recent iteration, states as follows:
17. a. Are you a citizen [YesJ [NoJ
of the United
If you have answered "No " to this question, you must answer Questions 17b 17f. If you have answered nYes" to this question, proceed to Question 18[.J b. Do you understand that if you are not a citizen of the United States, this guilty plea may result in your removal from the United States and/or stop you from being able to legally enter or re-enter the United States? [YesJ [NoJ 28
in that change
to become versed and voluntary
law in order to secure
plea. of Padilla's retroactivity.
We now turn to the question
IV. A. Both the Attorney Supreme Court's holding General and the State maintain represents that the
a new rule that Rather,
does not apply on collateral both essentially analysis, Padilla
review in either appeal.
argue that under a federal announced
a new rule that should be given
c. Do you understand that you have the right to seek individualized advice from an attorney about the effect your guilty plea will have on your immigration status? [Yes] [No] d. Have you discussed with an attorney the potential immigration consequences of your plea? If the answer is "No," proceed to question 17e. If the answer is "Yes," proceed to question 17f . [Yes] [No] e. Would you like the opportunity to do so? [Yes] [No]
f. Having been advised of the possible immigration consequences and of your right to seek individualized legal advice on your immigration consequences, do you still wish to plead guilty? [Yes] [No] [Ibid. See also Administrative Directive # 09-11 (Dec. 28, 2011), available at http://www.judiciary.state.nj.us/ directive/2011/dir_09_11.pdf (requiring municipal courts to advise defendants of immigration consequences of guilty pleas) .]
to the case in which the rule was review, and all future cases, but appeals
all cases on direct
not in cases on collateral from PCR claims. As for defendants, represents misinformed
such as the present
a new rule and, further, about the deportation of specific he faced. that Padilla
that he was of his plea as a about the on the other a new rule of on whether
consequences information Goulbourne, represents
result of the absence immigration
hand, seemingly law but contends
does not depend review;
the case is on direct or collateral emphasizes informed
rather, he although he was
that his plea was flawed because
that he "very well may" be deported
as a result of his
plea, he was not told that deportation B. Teague v. Lane, 489 2d 334 Whorton (1989), governs v. Bockting,
would be automatic.
288, 109 S. Ct. 1060, 103 L. Ed. under federal law. See
406, 416, 127 S. Ct. 1173, 1181, In essence, in determining turns on A new
167 L. Ed. 2d 1, 10-11 whether whether
a rule is applied
the decision See ibid.
the rule is considered
new or old.
rule generally direct appeal
does not apply retroactively
to a case where on a
is over and the case is only being reviewed
supra, 489 u.S. at 310, 109 S.
Ct. at 1075, 103 L. Ed. 2d at 356.
rule of law is new if it "breaks new ground" by precedent final." existing
and is one at the time
whose "result was not dictated the defendant's conviction
Id. at 301, 109 S. is not
Ct. at 1070, 103 L. Ed. 2d at 349. dictated by precedent minds."
In turn, an outcome to debate
if it is "susceptible
Butler v. McKellar,
494 u.S. 407, 415, 110 (1990). Disagreement has been
S. Ct. 1212, 1217, 108 L. Ed. 2d 347, 356 among federal recognized Banks, courts or among Supreme
Court justices debate.
of such reasonable
See Beard v.
542 u.S. 406, 414-15,
124 S. Ct. 2504, 2512, 159 L. Ed. of four justices was supra,
2d 494, 505 evidence
(2004) (finding dissent jurists
494 u.S. at 415, 110 S. Ct. at 1217, 108 L. Ed. 2d at 356-57 (noting circuit differ). split as evidence that reasonable authority minds could
is not of See Williams v.
itself dispositive Taylor, 389, 428
that a rule is new, however.
529 u.S. 362, 410, 120 S. Ct. 1495, 1522, 146 L. Ed. 2d (2000).8
8 Conflicting authority or not, the Court conversely has cautioned that when a court applies a rule of general application to new facts, "it will be the infrequent case that yields a result so novel that it forges a new rule, one not dictated by precedent." Williams, supra, 529 u.S. at 382, 120 S. Ct. at 1507, 146 L. Ed. 2d at 411 (Stevens, J., concurring) 31
That said, for new rules there is a "general nonretroactivity" 552 on collateral review. Danforth
rule of v. Minnesota,
264, 279, 128
Ct. 1029, 1040, 169 L. Ed. 2d 859, 871 retroactively on collateral either it
A new rule only applies
review if it fits into one of two exceptions: "render[s] criminal types of primary conduct
'beyond the power of the or it is a fairness 169 L. 109
the fundamental Ct. at 1037-38,
of the trial.'" Ed. 2d at 868
rd. at 274-75, (quoting Teague,
at 311-12, of those
Ct. at 1075-76, exceptional implicate heights
103 L. Ed. 2d at 356). is evident
The case does not
nor does it reach the To be a "watershed" an and "must
for a "watershed"
rule, the rule must both "be necessary impermissibly
large risk of an inaccurate of the bedrock
alter our understanding essential
elements supra, 549
to the fairness
of a proceeding."
at 418, 127
Ct. at 1182, 167 L. Ed. 2d at 12 (citations To meet the latter requires an
and quotation extraordinary
marks omitted). showing.
rd. at 421, 127
Ct. at 1183, 167 L.
(quoting Wright v. West, 505 u.s. 277, 308-09, 112 s. Ct. 2482, 2500, 120 L. Ed. 2d 225, 249-50 (1992) (Kennedy, J., concurring)) . 32
Ed. 2d at 14.9
Since it was announced threshold.
no new rule has
met the ~watershed" 167 L. Ed. 2d at 12.
Id. at 418, 127 S. Ct. at 1182,
Thus, the retroactivity whether not. Padilla represented
issue under federal the announcement
of a new rule or
C. 1. In the wake of Padilla, divided States, on whether 655 ~3d federal district courts were
it was retroactive.
See Chaidez v. United (citing examples); (3d Cir. 2011)
684, 688 (7th Cir. 2011)
Diop v. ICE/Homeland (same) .
Sec., 656 F.3d 221, 228 n.5
A smaller body of law exists among the circuit though the existing question cases similarly retroactivity. to address reflect
courts, on the the
The Third Circuit,
first Court of Appeals that Padilla involved
the issue, initially of the existing on collateral
concluded Strickland review. However,
test, which made its holding See United States v. Orocio,
applicable 645 ~3d
630, 634 (2011).
the same panel of Third Circuit
The only example that the Supreme Court has provided of a new rule that would have qualified as a watershed rule is Gideon v. Wainwright's holding that indigent criminal defendants must be provided counsel. See Whorton, supra, 549 U.S. at 419, 127 S. Ct. at 1182, 167 L. Ed. 2d at 12-13. 33
that "there is no judicial retroactivity] contrary and
on the issue
[that] many lower courts have come to a Diop, supra, 656 ~3d at 228 n.5 (calling
is not retroactive Circuit
"far from remote")
And, both the Tenth and Seventh recently have concluded therefore
Courts of Appeal a new rule of
law, holding analysis, collateral
that, under Teague's
retroactivity to cases on at 694; United
it should not be retroactively review. See Chaidez, F.3d involved supra,
applied 655 ~3d
States v. Chang Hong, Because Strickland unaddressed overruling Padilla
(10th Cir. 2011). an application performance extending previously the analysis 655
to an area of attorney by the Supreme
Court, and did not involve the retroactivity See Chaidez,
of an earlier precedent, as "difficult."
is aptly designated ~3d
at 689 (citing Saffle v. Parks,
494 U.S. 484, 488, 110 S. (1990)). Guided by
Ct. 1257, 1260, 108 L. Ed. 2d 415, 424 federal retroactivity
law, we are persuaded
that Padilla law, is not
represents retroactive review.
a new rule of law that, under federal and is therefore inapplicable
to cases on collateral argument in
In reviewing Padilla's
the developing retroactivity.
law, the stronger That argument
lies against the Chaidez
and Chang Hong decisions,
both of which rely in in the majority,
large part on the array of views expressed
of the justices decision
in finding that the Padilla and that it represents its Strickland
was not dictated
a new and novel rule,
A major argument that it involves
in favor of Padilla's
the application assistance performance
of the time-honored of counsel
test for ineffective concerning definition attorney
to new facts cannot meet the
of a new rule.
supra, 529 u.S. at 382, Implicit in our is rejection test can
120 S. Ct. at 1507, 146 L. Ed. 2d at 411. finding that Padilla was not dictated of the argument announce that no case applying As the Chaidez
the Strickland court noted,
a new rule.
[e]ven the maj ori ty [in Padilla] suggested that the rule it announced was not dictated by precedent, stating that while Padilla's claim follow [ed] from its decision applying Strickland to advice regarding guilty pleas in Hill v. Lockhart, Hill does not control the question before us. Padilla can only be considered an old rule if Supreme Court precedent compelled the result. The majority's characterization of Hill suggests that it did not understand the rule set forth in Padilla to be dictated by precedent. [Id. at 689-90 marks omitted).] (citations and quotation
the issue is a challenging no simple application
one, as we see it,
of the well-established Prior to Padilla, "the
rule to a new set of facts.
[Supreme] Court had never held that the Sixth Amendment a criminal directly Chaidez, defense attorney to provide
advice about matters prosecution."
to their client's 655 F.3d at 693.
Now, counsel must provide required and,
affirmative importantly, on grounds ibid.
advice on a subject not formerly ineffective assistance
claims may be substantiated misinformation. See
other than giving affirmative contours
There are uncertain
to the scope of advice about holding, now about
the risk of deportation must be addressed
that, under the majority's See ibid.
the scope of advice now required, mandatory naturally subject affects
on a subject not before made a noncitizen client, is a
for review with a pleading our perspective
that this pronouncement impacts whether collaterally,
"new" rule of law. applied
And, it directly when reviewing,
it must be pleas
entered before Tenth Circuit
this obligation emphasized
was made express. stating
Indeed, the is a new --
rule of constitutional Strickland immigration F.3d at
law not because
of what it applies
-- but because consequences
of where it applies of a plea bargain."
-- collateral Chang Hong,
That reasonable Padilla's holding
about anticipating points
is illustrated in the Padilla of lower federal
not only by the various opinions, courts,
of view expressed Padilla courts, opinions
but also by the preincluding nine circuit
and many state courts that had concluded duty to warn clients including
there was no
Sixth Amendment collateral plea.
about the risk of a from a guilty S. Ct. at 1481 Chang Hong,
supra, 559 u.S. at (collecting
n.9, 176 L. Ed. 2d at 293 n.9 supra, Holmes, F.3d at Jr., Effective of Guilty
(citing Gabriel Assistance Pleas,
J. Chin & Richard W. and the
Consequences (2002)). Padilla
87 Cornell heavily
L. Rev. 697, 699
That case law weighs announced
in favor of finding that law. foreclosed in had
a new rule of constitutional
Although application respect
Court had not previously analysis to attorney
of a Strickland
of a guilty plea, neither See Chang Hong, is not
it held such an analysis supra, overridden F.3d at
to be applicable. The weight
of that precedent
by the Padilla majority's standards, standards
resort to developments as they undoubtedly establish a rule
about professional are. Professional
cannot themselves can accomplish
of law; only a court holding Van Hook, u.S.
See Bobby v.
, 130 S. Ct. 13, 17, 175 L. Ed. 2d 255,
(2009) (per curiam)
(citing Strickland organizations
such as ABA serve as id. at
performance); (Alito, J.,
130 S. Ct. at 20, 175 L. Ed. 2d at 262-63 concurring) determine (~It is the responsibility
of the courts to attorney must do
of the work that a defense
. in order to meet the obligations Constitution."). Although the Supreme
imposed by the Court stated in INS v. clients about Ct.
St. Cyr that defense immigration
see 533 u.S. 289, 323 n.50, 121 ~
2271, 2291 n.50, 150 L. Ed. 2d 347, 376 n.50 was not a discussion of the Sixth Amendment such advice.
(2001), the context right to counsel,
and the Court did not require As noted, even Padilla
itself does not provide
evidence an ~old" of
that the Court believed or existing rule of law.
it was discussing
We draw no inference
such a belief corpus review,
from the fact that Padilla was heard on habeas for Teague's holding -- that a new rule does not
apply on collateral
it fits into an exception that
can be waived,10 and Kentucky
did not raise as a defense
10 The Teague retroactivity analysis ~is not 'jurisdictional' in the sense that [federal courts] . must raise and decide the issue sua sponte." Caspari v. Bohlen, 510 u.S. 383, 389, 114 ~ Ct. 948, 953, 127 L. Ed. 2d 236, 245 (1994) (alteration in original) (quoting Collins v. Youngblood, 497 u.S. 37, 41, 110 S. Ct. 2715, 2718, 111 L. Ed. 2d 30, 38 (1990)). If 38
Padilla was seeking application review. See Chaidez, supra,
of a new rule on habeas
655 F.3d at 693-94. Teague as waived ineffective
It is more of
likely that the Court viewed its application to Padilla's
of counsel as
claim, than that the opinion, incorporating on collateral majority's challenges a retroactivity review.
in its entirety, analysis
to all matters the Padilla a flood of
See id. at 694. of concerns
about unleashing see Padilla,
to final convictions,
supra, 559 u.S. at is fairly
, 130 S. Ct. at 1484-85, ambiguous. If Padilla
176 L. Ed. 2d at 297-98,
an "old" rule, it would apply review; but, if it a
to all cases on direct appeal or collateral constituted recognized nevertheless the announcement exception
of a new rule not within analysis,
in the retroactivity
then it appeal with
would apply to all pled cases on direct ineffective assistance of counsel
post-conviction be addressed a "flood"
claims yet to
and could unsettle
a great number
of pleas through The Court could of floods. The at
to final convictions.
have been referring mere reference hand.
to one, or the other, degree
to a flood is not illuminating
of the question
retroactivity under Teague is not raised, a court need not address the question. See ibid. (citing Schiro v. Farley, 510 u.S. 222, 228-29, 114 S. Ct. 783, 788-89, 127 L. Ed. 2d 47, 5556 (1994)).
In the end, the fact that Padilla Strickland not. is not determinative Circuit
it is a new rule or the same
As the Seventh
stated when reaching
determination, [wJe recognize that the application of Strickland to unique facts generally will not produce a new rule. However, that guiding principle is not absolute. We believe Padilla to be the rare exception. Before Padilla, the Court had never held that the Sixth Amendment requires a criminal defense attorney to provide advice about matters not directly related to their client's criminal prosecution. In Padilla, the Court held that constitutionally effective assistance of counsel requires advice about a civil penalty imposed by the Executive Branch after the criminal case is closed. In our view, that result was sufficiently novel to qualify as a new rule. Indeed, if Padilla is considered an old rule, it is hard to imagine an application of Strickland that would qualify as a new rule. Perhaps in the future the Court will conclude, given the breadth and fact-intensive nature of the Strickland reasonableness standard, that cases extending Strickland are never new. But until that time, we are bound to apply Teague in the context of Strickland. [Chaidez, supra, 655 (citations omitted).J We similarly constitutional is not entitled under Teague. holding conclude
a new purposes, review
rule of law that, for Sixth Amendment to retroactive We cannot application
say that prior to issuance
of the that
would have known or expected
the constitutional required
that they advise noncitizen consequences,
of the risk of
and further that they must do so even is not clearly predictable. to
when the risk of those consequences Padilla unequivocally establishes
that it is now mandatory constitutionally noncitizen
advise on the subject as part of providing effective criminal assistance defendant. of counsel Specific
to a pleading
must occur when the The
risk of deportation Padilla defined, obligation
arises as a result of a guilty plea. of counsel is thus broad, not precisely
and most importantly standard
novel as the new baseline Notwithstanding desire to portray our this as
constitutional dissenting affirmative
for performance. well-intentioned
to advise on immigration
one long-recognized inadequate
by the defense bar, the assertion the cited references
support through advocacy
to professional noted, on
organizations' professional preferred
a source of information for u.S. at
do not set the standard See Van Hook, supra,
, 130 S. Ct. at 17, 175 L. Ed. 2d at 259. writing on this subject only underscores required
that the must be defined
level of performance
by the courts. at 262-63
See id. at
, 130 S. Ct. at 20, 175 L. Ed. 2d
(Alito, J., concurring). standards new and
In sum, based on our review of the pertinent persuasive authority available,
we hold that Padilla's
constitutional application standards.
is not entitled
to retroactive retroactivity
review based on federal
D. Because whether federal Padilla it is unclear in defendant Goulbourne's appeal
he is arguing
of Padilla based only on
law, or on federal and state law, we also address from a state retroactivity is not entitled law perspective to retroactive analysis. and further
hold that Padilla
based on a state law retroactivity 205 N.J. 237, 254 97 (2005)) analysis,
See State v. Dock, 184 N.J. 84,
(2011) (citing State v. Cummings, that New Jersey's
(acknowledging like federal
retroactivity rule is "new")
The first step is to determine if the rule is a "new rule." Ibid. (citing Cummings, supra, 184 N.J. at 97). The standard in that respect is similar to federal law: A rule is new if "it breaks new ground or imposes a new obligation on the State or if the result was not dictated by precedent existing at the time the defendant's conviction became final." Id. at 255 (citations and quotation marks omitted). If the rule is new, the next determination is whether it should apply retroactively, which requires a balancing of three factors:
(1) the purpose of the would be furthered 42
rule and whether it by a retroactive
at the time of Goulbourne's
in 2008, Padilla was novel and unanticipated. Valdez, immigration consequences
Prior to Nunezas
had been categorized
of a guilty plea as to which there was See Heitzman, supra, 107 N.J.
no obligation at 604.
to warn defendants. holding
that, if the deportation must be warned that he or to the
are clear, a defendant
she will be deported existing
was a new rule of law compared
law in New Jersey. our Court expressly by inaccurate acknowledged that
With Nunez-Valdez, wrong advice, on immigration is material ineffective followed
(and specifically client,
deportation) can present
to a pleading assistance
But, Padilla now goes in respect of both
further than Nunez-Valdez's aspects to its holding. consequence
Padilla holds that ~when the [of a guilty plea] is truly clear,"
application, (2) the degree of reliance placed on the old rule by those who administered it, and (3) the effect a retroactive application would have on the administration of justice. [Ibid. (quoting Cummings, 97 (citation omitted)).] supra, 184 N.J. at
The first factor, the purpose of the rule, is ~pivotal." (citing Cummings, supra, 184 N.J. at 97).
duty and obligation advice." 559
is to address
subject and to ngive correct
, 130 S.
Ct. at 1483, 176 L. Ed.2d at 296. holding, specific
Thus, under Padilla's
advice must be given on deportation as mandatory under federal law. Ibid.
That was not our law, even under the Nunez-Valdez Moreover, affirmative
advice must be given even when the risk of is less than crystal its requirement clear. Ibid. The
in those scenarios, and of a defense
stating that n[wJhen straightforward," particular attorney pending
the law is not succinct
and nthe deportation
plea are unclear
need do no more than advise a noncitizen criminal
client that immigration
charges may carry a risk of adverse Ibid. That additional analysis affirmative
a new, and nuanced, in our case law.
that also was never before
We already constitutes announced therefore
have held that the narrow
a new rule compels
that Padilla law
a new rule, and that federal holds that Padilla review.
is not entitled
to retroactive using
effect on collateral a state retroactivity
We reach the same conclusion That said, although
will not apply retroactively,
of attorney of counsel
in New Jersey in ineffective review. Thus, if a
claims on collateral in the present
either of the peR applicants
claim showing that he was provided misleading performance advice when entering expected
with false and affirmatively of
his plea, then the standard
of counsel may have been breached. facts of the two matters
We thus turn to the specific consolidated for purposes
of this appeal.
A. Defendant immigration entitled relief. Gaitan claims that he was misinformed of his plea agreement on the
and that he is
to a hearing Although
on his petition
for post-conviction no information,
claims that he received evidence
that the record contains
that he reviewed
the plea form with counsel. that Question proffered
on the plea form indicate was on
17 was addressed
with him, and no evidence
that he received Gaitan,
at a minimum,
was put on notice through the
of the issue of potential
plea form, which distinguishes where the defendant information. received
from Nunez-Valdez, misleading
false and affirmatively
about the immigration misinformation, hearing.
of his plea to
and thus claims a right to an evidentiary that the plea colloquy the colloquy could not a
He further asserts
cure the lack of notice because specific generally explanation of Question
did not involve inquired
17, but instead
about his understanding
of the plea form.
adds that deportation been ascertainable neither
as a result of his plea easily would have removal statute, but
from the relevant
counsel nor the court advised
him of that. in Nunez-Valdez case law. In was
As noted previously,
the rule announced
not a new rule of law in New Jersey's 2005, when Gaitan entered the provision deportation rendering
his guilty plea, case law addressing to a defendant as to the that the
of a guilty plea supported
advice to a defendant
on the deportation to prove a See
of a plea agreement
could be sufficient assistance
facie case of ineffective
of counsel. Chung,
supra, 320 N.J. Super. at 339-40;
supra, 210 N.J.
Super. at 434-35. The State concedes that Nunez-Valdez applies did not announce review to a new
rule, and that its holding defendant's neither plea. However, incorrect
the State contends
advice nor was affirmatively
with regard to his immigration to an evidentiary
status and, therefore, under Nunez-Valdez. a new rule second, it as
he is not entitled We agree,
first, that Nunez-Valdez to Gaitan's
did not announce
of law with respect that Nunez-Valdez addressed opposed
And, we agree,
does not afford
relief to Gaitan because and misleading advice,
misinformation of advice
to an absence
of a plea agreement. pronouncement
We cannot conclude
about the duty to advise on the of certain convictions, Gaitan the on
law required that subject. then-existing
to have affirmatively to conclude
We are unable
plea form resulted
where there is no evidence sought more information
or claim that, about immigration
at the time, defendant consequences
and was then misinformed
by counsel. to impose a of Nunez-
In sum, Padilla higher obligation holding
does not apply retroactively
and we find no violation by Gaitan.
in the record presented to further
refine the plea form does that was provided to
not render as misadvice Gaitan through
plea form, nor did the revised
plea form vest further
rights in Gaitan or others who seek to collaterally. Rather, the changes to
have their pleas reviewed
our plea form reflect certainty
of a guilty plea. misadvice, nor
for his bald assertion
that he would not he is
have pled had he known of the deportation not entitled to an evidentiary hearing.
Defendant hearing court's
had the benefit
of an evidentiary 8, 2010. In the peR
by the peR court on April
issued the next day, the peR court gave of the doubt" that he would not have advised of the certainty relief, vacating Division of the affirmed
pled guilty had he been better deportation
and granted post-conviction entered.
guilty plea previously the judgment.
The peR court was mistaken doubt" to Goulbourne
of the for
that he would not have pled guilty, standard in a peR setting. of counsel
that is not the correct asserting burden ineffective
on peR bears the
his or her right to relief by a preponderance See Echols, supra, 199 N.J. at 357; Goodwin,
of the evidence.
supra, 173 N.J. at 593.
Upon our review of the record before of Judge Marmo's
the peR court, as well as the transcripts extensive questioning of Goulbourne
when taking Goulbourne's
plea, we are more than satisfied his required burden of proof.
failed to carry
as he engaged
two drug transactions feet of a public library.
on a Paterson
street within five hundred
school and within
feet of a public following each When
The buyers were apprehended and marijuana approached
transaction, the officers apartment
was found in their possession. he ran into a nearby there, where currency
and was taken into custody were in plain view.
bagged marijuana was offered
Before he was indicted, After indictment,
a plea deal and turned
it down. Goulbourne
and on the day trial was to begin,
the plea deal, and Judge Marmo questioned agreement. As the record created clearly informed
him about the both the
that day reveals, defendant
judge and counsel
that his plea could
result in deportation officials
and that immigration
could deport him. on this record, which details a point made evident the following
We see no deficiency
on review of the transcript, colloquy: Judge:
Okay. Now let me ask you this. Are you a citizen of the United States? No, sir.
I was born in Kingston,
Jamaica. How long have you been in the U.S.? Been in the U.S. 11 years now. All right. I'm sure you understand that by reason of this conviction, you could be deported to Jamaica -I heard. to your country? understand that? Yes, sir. All right. Okay. And I see you've indicated that on your plea form, so you're aware of that. It would be up to Immigration. But you have to understand that they may very well deport you. You understand? Yes, sir. Any other Okay. All right. about your plea questions I have some other agreement? questions I want to go over with you. No. with defendant the deportation You
Defendant: Defense counsel
of his guilty plea: Okay. Are there that you want to any questions ask the Judge
and myself plea? Defendant: Counsel: Meaning
Are there any other questions that you want to ask -No. -- the Court? No, I don't. Okay. You understand, as the Judge indicated to you, that as a result of this plea, it's not guaranteed because we don't know -- we don't deal with this any of us, the Judge, the Prosecutor, myself, we don't deal with this personally, so we don't know what gets done in the in the Immigration Services and the Immigration Court. But they have the right to deport you, and they may very well do that back to Jamaica as a result of this. Do you understand that? Yes. That won't take place until after you finish your jail time. Do you understand? Yes.
Defendant: Counsel: Defendant: Counsel:
You're going to lose your driving privileges. If they don't deport you, you won't be able to drive for at least six months, possibly up to two years. Do you understand that?
[Emphasis added.] Although consequences concerning probation before months Goulbourne had no questions about the deportation
of his plea, he had a great many questions plea offer of
why he could not get the pre-indictment
with 364 days in county jail, but instead now had him to serve fifteen explained that
him a plea offer that required without parole. After
it was repeatedly
the pre-indictment persisted
offer was no longer available the pre-indictment further discussion
offer, the court was fruitless and a
stated that it believed indicated
that it would impanel defendant entered
a jury for trial.
a guilty plea to the only plea a factual basis for that plea.
offer on the table and provided He was sentenced in accordance
with the plea agreement. hearing, Goulbourne admitted
During his peR evidentiary
that he was guilty of the charges trial concerns would
and stated that his initial
were not about guilt but about how long a time he Indeed, he admitted that he recognized at
serve in jail.
deportation the time.
was a possibility His priority
but that it was not his concern
the amount of jail time, of his looking ahead to
which certainly discussions
in the transcript On this record,
with Judge Marmo.
the prejudice Goulbourne's
prong, we find no evidence attention was clearly
elsewhere. hearing on peR
Goulbourne that counsel deportation
during his evidentiary
and the court told him that there ~may" be consequences as a result of his guilty plea but that certainty" that he would be an
no one told him with ~guaranteed deported. immigration He also testified
that he did not consult
lawyer prior to his guilty plea and that no one told
him at that time that he should seek the advice of an immigration record, attorney. As already noted, we find that, on this of prejudice here because evidences anything that for the
there is no demonstration
record at the time of the plea and sentencing immigration defendant consequences
would not have changed
at the time. deficiencies of counsel asserted, we in in
As for the specific
find that the record is a far cry from what was presented Nunez-Valdez, immigration inaccurately, where the defendant consequences, was materially
that his plea to drug charges would not result in and substitute counsel, against that was
such consequences, backdrop,
the advice to state that deportation did not receive wrong advice The immigration the control
a possibility. under existing were emphasized
Here, defendant law at the time.
as real and beyond
of the criminal
system, and, most importantly,
colloquy for him
clear that the most important
was the amount of time he would in that specific context
spend in prison.
the lesser amount of time in the of children he had, recent to
earlier pre-indictment including a recently
offer, the number born infant,
and even his wife's
that caused him concern
about his ability
care for her during a period Because Padilla
of imprisonment. to retroactive application, in this
is not entitled violation
we find no attorney matter.
As for Nunez-Valdez, like what occurred
we find in this record no in that matter, and we further prejudice on this
deficiency conclude record.
has not demonstrated
VI. As Padilla made clear, attorneys as to how they must advise pleading defendants, consequences articulated depending flowing now have specific criminal duties
on the certainty from the plea.
The Supreme Court
those duties as follows:
[A] criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear.
[Padilla, supra, 559 u.s. at at 1483, 176 L. Ed. 2d at 296.J
To the extent that Padilla holds that that an attorney tell a client when removal certain attorney -- it represents performance is mandatory -- when consequences
new rule of expected Prospectively from the
time when the decision
in Padilla was announced,
failure to point out to a noncitizen pleading deficient conveyed to a mandatorily performance removable
client that he or she is offense will be viewed as
advice must be
as part of the counseling
when a client enters to an aggravated As to
a guilty plea to a state offense felony, triggering highlighted immigration offense eligibility
and in this opinion,
due to changes
laws, ~if a noncitizen
after the 1996 effective is practically , 130
date of [the INAJ amendments,
his removal 559
Ct. at 1480, 176 L. Ed. 2d at 292. now for criminal defense
is thus particularly attorneys
to be able to, at a minimum, on whether
for their clients
a guilty plea to certain removable.
will render them mandatorily To that end, numerous attorneys determine whether
to help an
a state crime constitutes
felony under federal provides
The Immigration charts,
freely available See
to the public, Immigrant
that assist Project,
Quick Reference of Selected
Chart for Determining
the Immigration Offenses
New Jersey Criminal
(June 6, 2005), http://immigrantdefenseproject.org/wpAnd, as we were informed at
content/uploads/2011/02/NJ-Chart.pdf. at oral argument non-profit Referral in this matter,
phone calls to attorneys
such as the Immigration
Pro Bono Project
at the Law School at Rutgers-Camden, defense attorneys
are yet another with noncitizen felonies. Moreover,
avenue through which criminal clients can gain information
even if removal
is not "mandated"
in the sense lists of
that a state offense offenses removable clients removal equating
is not identified
or like mandatorily for noncitizen
counsel must highlight
a guilty plea will place them at risk of counseling on potential
and that they may seek to obtain consequences
in order that their guilty plea be We will look to transcripts on
and voluntary. for evidence
of plea colloquies
that these points were placed prior to a court's
the record with a noncitizen acceptance,
and entry, of a guilty plea.
That said, as held in Nunez-Valdez, false information, or inaccurate consequences
if counsel provided misleading
advice about removal deficiency a prima
of a guilty plea, then of establishing, of counsel at present,
may exist for purposes
claim entitling In
to an evidentiary eligibility
in a PCR proceeding. hearing in such
for an evidentiary
like others where a court may be confronted between a client and counsel, of a belated In so doing,
we trust that claim of the court and matters, to
courts will evaluate misadvice before
the sufficiency a hearing.
should examine sentencing determine the-fact
of the plea colloquy
as we have done in the present provides support
if either transcript assertion that counsel
for an afteradvice
failed to provide
affirmatively consequences to justify
sought by a client as to the immigration of entering into a specific hearing guilty plea, sufficient
on the PCR claim.
VII. The judgment of the Appellate Division in State v. Gaitan, of the
419 N.J. Super. 365 Appellate Division
(2011), is reversed
and the judgment
in State v. Goulbourne for disposition
also is reversed. consistent with this
Both matters opinion.
CHIEF JUSTICE RABNER and JUSTICES HOENS and PATTERSON and JUDGE WEFING (temporarily assigned) join in JUSTICE LaVECCHIA's opinion. JUSTICE ALBIN filed a separate, dissenting opinion, in which JUSTICE LONG joins.
SUPREME COURT OF NEW JERSEY A-109 September Term 2010 067613 A-129 September Term 2010 068039
STATE OF NEW JERSEY, Plaintiff-Appellant,
Defendant-Respondent. STATE OF NEW JERSEY, Plaintiff-Appellant,
ROHAN GOULBOURNE, Defendant-Respondent.
JUSTICE ALBIN, Any minimally
dissenting. adequate criminal defense attorney in this client
State has known for more than a decade that a noncitizen who is pleading guilty to a deportable consequences
offense must be advised Therefore, the to the
of the immigration
of that plea.
defense bar will be surprised majority expected
to learn that -- according nhave known or clients
not until 2010 would attorneys . that they
[must] advise noncitizen
risk of immigration
of a guilty plea.
Ante at 40-
conclusion , 130 S. Ct. on
that Padilla v. Kentucky,
1473, 176 L. Ed. 2d 284 defense a client attorneys
(2010), placed advice
a novel obligation advice
-- even minimal
-- to to a
facing banishment offense.
as the result of pleading On that basis,
Ante at 42.
denies post-conviction advised by his attorney
relief to Frensel
Gaitan, who was never to a drug offense from this country felony."l in
when he pled guilty
2005 that he would or even might be deported as a consequence
of his guilty plea to an "aggravated decision cannot be reconciled
The majority's language of Padilla,
with the very
which held that "[fJor at least the past 15 norms have generally imposed an obligation consequences of
years, professional on counsel a client's
to provide plea."
advice on the deportation
559 u.s. at The majority's
, 130 S. Ct. at 1485, 176 L. decision is in direct conflict in United that
Ed. 2d at 297-98. with the holding States v. Orocio,
of the Third Circuit
Court of Appeals
645 F.3d 630, 641 (2011), which concluded
For purposes of this appeal, we must accept as true the allegations in Gaitan's petition for post-conviction relief. Pursuant to 8 U.S.C.A. § 1101 (a) (43) (B), an "aggravated felony" includes "illicit trafficking in a controlled substance" -- a category of crime to which both defendants in this case have pled guilty. Since the 1996 amendments to federal immigration laws, conviction of an aggravated felony has meant mandatory deportation for noncitizen defendants. See 8 U.S.C.A. § 1227 (a) (2) (A) (iii); Padilla, supra, 559 u.S. __ , 130 S. Ct. at 1480, 176 L. Ed. 2d at 292.
long-established was an ~'old rule' review." The majority's Standard to
professional retroactively decision
turns a blind eye to American adopted
Bar Association defense
in 1999, which required clients
inform noncitizen guilty plea. before
of the immigration decision ignores
consequences the reality
of a that
The majority's seminars
and legal periodicals,
in this State were instructed
to advise noncitizen offenses carried the
that a guilty plea to particular certain deportation.
risk of almost decision
the majority's in
is inconsistent See State v.
with the logic of legal precedents Nunez-Valdez, Vieira, 200 N.J. 129, 139-42
(2009); see also State v. Div. 2000). acknowledged deportation. Despite before
334 N.J. Super.
681, 688 (Law in 1988,
Even the judiciary's that a defendant's
plea form, as adopted
guilty plea might expose him to
all of the above, the majority decision in 2010, defense
under both our Federal
if they gave absolutely certain deportation
no advice to a client consequences of a guilty
about the almost plea.
ruling will lead to state courts denying federal district
relief in cases in which
on the Third Circuit's
grant habeas the caseload
opinion may lighten a result States
of our court system, but only by achieving by the Sixth Amendment I, Paragraph respectfully of the United
that is forbidden Constitution Constitution.
and by Article I therefore
10 of the New Jersey dissent.
A. Our courts have long held that both the Sixth Amendment Article accused Savage, I, Paragraph 10 of our State Constitution assistance of counsel. guarantee See State v. 105 N.J. 42, and the
120 N.J. 594, 612 (1990); State v. Fritz, An attorney assistance standard
58 (1987). effective objective Washington,
does not render constitutionally [falls] below an v.
if his ~representation
466 U.S. 668, 687-88,
104 S. Ct. 2052, 2064, 80 L. supra, 105 N.J. at 58
Ed. 2d 674, 693 (1984); see Fritz, (adopting Strickland standard
under New Jersey Constitution)
Under Strickland, a conviction must be reversed for constitutionally ineffective representation only if a defendant can show (1) counsel's performance ~fell below an objective standard of reasonableness," 466 U.S. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693, and (2) ~there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
"The proper measure reasonableness Strickland,
at 688, 104
Ct. at 2065, 80 L. of an to prevailing and
Ed. 2d at 694 (emphasis added). attorney's representation
may be judged by looking Bar Association
norms as reflected other like guides. attorney's
in American Ibid.
standards of an
Thus, the reasonableness
linked to the practice Padilla, supra, 559
of the legal community."
Ct. at 1482, 176 L. Ed. 2d at 294. standard , 130 "applies to
to this case, the Strickland a guilty plea." Id. at
Ct. at 474 (1985)).
1485 n.12, 176 L. Ed. 2d at 297
(citing Hill v. Lockhart,
52, 58, 106
Ct. 366, 370, 88 L. Ed. 2d 203, 210 whether Gaitan's attorney rendered
In determining constitutionally by the prevailing
we must be guided attorneys in 2005 entered
the time when Gaitan, with the assistance a guilty plea to a drug offense. professional norms required
In 2005, the prevailing to advise a client entering
a guilty plea to an aggravated probable, if not mandatory,
felony that he was facing That point is made
clear in Padilla.
B. In 2010, when the United Padilla carries that "counsel States Supreme Court announced his plea in
must inform her client whether id. at
a risk of deportation,"
, 130 S. Ct. at 1486, a new rule, but norm that
176 L. Ed. 2d at 299, it was not establishing rather acknowledging existed 2002. a well-recognized
at the time that Padilla Indeed, the Court asserted to provide
entered his guilty plea in that "[i]t is quintessentially client with , 130 S. Ct. the sea expanded
the duty of counsel available advice"
[a criminal] issues.
at 1484, 176 L. Ed. 2d at 297. change in federal immigration
The Court discussed
law in 1996 when Congress deportation
the class of offenses Id. at
to which mandatory
, 130 S. Ct. at 1480, 176 L. Ed. 2d at 292-93. that the "severity or exile,' of deportation -- 'the
Court emphasized equivalent critical
it is for counsel
to inform her noncitizen Id. at
he faces a risk of deportation." 1486, 176 L. Ed. 2d at 298-99 Further, prevailing
, 130 S. Ct. at omitted). of
the Court observed
that "[t]he weight
the view that counsel the risk of Id. at
must advise her deportation"
guilty to certain
, 130 S. Ct. at 1482, 176 L. Ed. 2d at 294-95
Legal Aid & Defender Representation
6.2 (1995); G. Nicholas (1997); Gabriel
3.03 at 20-21
J. Chin & Richard W. Holmes, and the Consequences of
Jr., Effective Guilty Pleas,
Assistance 87 Cornell
L. Rev. 697, 713-18
(2002); Arthur W. (3d ed. 2004); 2 of
Law of Sentencing Office
13:23 at 555, 560 Programs,
Dep't of Justice, Standards
for Attorney for 4-
at D10, H8-H9,
J8 (2000); ABA Standards Function and Defense
5.1(a) at 197
(3d ed. 1993); ABA Standards 14-3.2(f) at 116
for Criminal Those
Pleas of Guilty established plea.
(3d ed. 1999)).
norms all preceded
The Court also recognized the American defender
that "authorities Bar Association,
of every criminal
stripe -- including defense and public
authoritative -- universally
and state and city bar publications attorneys
to advise as to the risk of for noncitizen clients." Padilla,
supra, 559 u.S. at (internal quotation
, 130 S. Ct. at 1482, 176 L. Ed. 2d at 295 marks omitted).3 Thus, for at least fifteen
3 In particular, it is worth mentioning that in 1999 the American Bar Association adopted Standard 14-3.2(f) requiring defense counsel to "advise the defendant, sufficiently in advance of the entry of any plea, as to the possible collateral consequences 7
years before "fundamentally
silence was of counsel of a
at odds with the critical
to advise the client of the advantages plea agreement." Id. at
, 130 S. Ct. at 1484, 1485, 176 L. marks omitted). majority,
Ed. 2d at 296, 297-98 Justice Alito differing required defense attorney
with the five-person
only on the nature of counsel.
and extent of advice that is that "[w]hen a criminal
is aware that a client is an alien, the conviction may
should advise the client that a criminal consequences under the immigration an immigration
have adverse the client
laws and that if the
client wants advice on that subject." 1494, 176 L. Ed. 2d at 307 "silence the
, 130 S. Ct. at Thus,
(Alito, J., concurring). counsel's
alone is not enough to satisfy client" in accordance
duty to assist
with the Sixth Amendment. that "any competent the extraordinary
Justice Alito observed attorney
that the risk of removal might have in the client's
that might ensue from entry of the contemplated plea." Pleas of Guilty, supra, 14-3.2(f). One such collateral consequence identified was the immigration consequences to a noncitizen who pleads guilty. Id. at 126-27. As explained in the Standard's commentary, "it may well be that many clients' greatest potential difficulty, and greatest priority, will be the immigration consequences of a conviction." Id. at 127.
determination majority attorney complete
to enter a guilty plea." agreed on one essential
The -- an by
does not fulfill his constitutional silence. the majority holds that criminal
were not required consequences
to give affirmative
advice on deportation obviously has concluded
that the United prevailing
norm in 2010.
But if that were the to the United States
case, then had Padilla never been appealed Supreme Court, defense attorneys
even today could remain silent of a guilty plea without the bar does not await
about the dire immigration offending professional
pronouncements establishing professional
from the United minimally conduct
States Supreme Court before codes governing the
C. Significantly, States v. Orocio, Padilla the Third Circuit Court of Appeals conclusion in United that in
came to the unremarkable applied
to the 2004 guilty plea entered The Third Circuit held that
that case. "Padilla extended
645 F.3d at 639-41.
broke no new ground to counsel's
the duty to consult
to advise the defendant
of a guilty plea and did not yield a new rule." Id. at 639-40
so novel that it forge[d]
(internal quotation pled guilty, to defendants consequences decision' followed it was
marks omitted). 'hardly novel'
Thus, ~[w]hen Mr. Orocio for counsel to provide advice
at the plea stage concerning of a guilty plea, undoubtedly Id. at 639.
the immigration an 'important ~[B]ecause Padilla
for a defendant." directly
from Strickland the circuit retroactively Id. at 641. rightly
and long-established court found it to be an ~old applicable to Orocio on
rule" and therefore collateral review.
that the federal
courts of appeal have split on the issue of the retroactivity Padilla.4 The majority suggests that the conflicting
4 This discord stems from the divergent application of Teague v. Lane, 489 u.s. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989), which defines the contours of retroactivity in terms of ~old rules" and ~new rules." In general, ~old rules" are applied retroactively, while ~new rules," said to ~break new ground or impose a new obligation on the States or the Federal Government," ~will not be applicable to those cases which have become final before the new rules are announced." Id. at 30110, 109 S. Ct. at 1070-75, 103 L. Ed. 2d at 349-56. The Third Circuit determined that the professional standards articulated in Padilla were ~old rules" because they merely ~reaffirmed defense counsel's obligations to the criminal defendant during the plea process." Orocio, supra, 645 F.3d at 638. The Seventh and Tenth Circuits, on the other hand, rely primarily on the inconsistency with which lower federal and state courts have ruled on defense counsel's obligations to noncitizen clients in concluding that Padilla announced a new rule of law. See Chaidez v. United States, 655 ~3d 684, 689 (7th Cir. 2011);
interpretations Padilla indicate
among courts about the retroactive that Padilla enunciated
a new rule.
new rule of law is not born merely have clearly misconstrued Court. The majority Circuit has adopted a mandate
some jurisdictions States Supreme
of the United
the reasoning States, 655 ~3d
of the Seventh 684, 689 (7th Cir. -- in denying
in Chaidez v. United
2011) -- and rejected application relief of Padilla
that of the Third Circuit to defendants
seeking post-conviction right to effective
of the Sixth Amendment Chaidez purports Id. at 686.
of counsel. a new rule.
that Padilla expressed
For the reasons
in this opinion, the correct
that the Third Circuit has come to the New Jersey Supreme of the Third Circuit Tobacco with
Court is not bound to follow decisions which it disagrees. N.J. 69, 79-80
See Dewey v. R.J. Reynolds However,
the federal district
judges in the District of the Third Circuit,
of New Jersey will follow the precedents not this Court. The result will be that
in cases in which the failure to advise a client of the deportation pleading consequences of a plea led to a defendant mistakenly
state court judges will deny post-conviction
United States v. Chang Hong, No. 10-6294, (10th Cir. Aug. 30, 2011). 11
slip op. at 13-14
relief only to have their decisions review. consider On habeas themselves corpus,
the federal district
courts will not of
bound by an erroneous Court.
Padilla by the New Jersey Supreme
This will not be the of
first time that we have been faced with the consequences mutually Court.5 conflicting decisions by the Third Circuit
D. Beyond indicating attorneys Padilla and Orocio, there is much other evidence to defense Before the and
the professional representing
norms applicable clients
Gaitan plea, New Jersey attorneys in legal publications advise a noncitizen guilty plea.
at seminars obligation to
about their professional client of the deportation
In Humanik v. Beyer, 871 ~2d 432, 441-43 (3d Cir.), cert. denied, 493 u.S. 812, 110 S. Ct. 57, 107 L. Ed. 2d 25 (1989), the Third Circuit found that a jury charge that shifted the burden of proof to a defendant asserting a diminished-capacity defense -- a charge approved by this Court in State v. Breakiron, 108 N.J. 591 (1987) -- violated the defendant's dueprocess rights. The decision of the Third Circuit was not binding on New Jersey courts. Nevertheless, the Court (per Chief Justice Wilentz) issued a memorandum to all trial court judges, effectively directing them to disregard Breakiron in order ~not to jeopardize State criminal trials by the threat of federal habeas reversals." State v. Reyes, 140 N.J. 344, 357 (1995) (internal quotation marks omitted).
In 2003, the New Jersey Law Journal published reporting Office on ~a recent seminar in Newark sponsored
an article by the state of that
of the Public Defender Defense Lawyers,"
and the New Jersey Association
during which lawyers were warned
they ~had better immigration clients' Preview, criminal
know the ins and outs of how highly
law might be hanging menacingly MichaelAnn Knotts,
over some of their
NJSBA Annual Meeting Experts in the field of the potential
May 5, 2003, at A6. that ~[fJailure disposition
to recognize involving
of a criminal
an immigrant of
and so informing Standard
that person may constitute of the American
Bar Association's Ibid.
for Criminal the seminar
Pleas of Guilty."
-- and reading
the Law Journal
-- were told that consequences of a
they were obliged
plea with their clients. The views expressed Law Journal novel.
Ibid. at the seminar and in the New Jersey edge or in any way professional norms
article were not at the cutting reflected the prevailing Avoiding
of the time. Bargain;
See Jim Edwards,
a Plea That's No of a Criminal Fast, With 23, 2002, at States,
of the Immigration
Can Get a Noncitizen
Client Deported N.J.L.J.,
Little or No Relief Available, 19 (~For aliens,
even those legally
in the United
are far more Robert
serious than a criminal Frank, Lawyer, Immigration February
record or a spell in prison."); of Criminal
Acts, New Jersey represent the alien
2005, at 25 ("To adequately it is essential
in criminal understand imposed alien's
to thoroughly the sentence
the impact that the crimes charged, of the proceeding
and the resolution status.");
will have on the Aliens,
cf. Laurie L. Levenson,
May 17, 1999, at 37 ("Defense counsel who represent the immigration laws or whose
clients who have either violated convictions
affect their immigration in providing
status have added
E. Our State's defense attorneys case law also indicates were on notice that, before 2005, to advise a
of their obligation consequences
client of the deportation
of a guilty
In State v. Vieira,
334 N.J. Super.
681, 688 (Law Div.
2000), a respected representation
trial court judge wrote that an attorney's deficient if the attorney [noncitizen]
does not address defendant
the issue of deportation
and the defendant
is not aware of the risk of
State v. Nunez-Valdez, strong support 2005 required consequences
200 N.J. 129
(2009), also lends norms in
for the proposition counsel
to advise a client of the immigration In 1998, the defendant in Nunez-Valdez sexual term. was the provided Id.
of a plea.
pled guilty to the fourth-degree contact at 132. deported defendant and was sentenced
crime of criminal
to a five-year
As a result of his guilty plea, the defendant to the Dominican post-conviction Republic. Ibid. We granted
him with ~misleading consequences"
or false information
about immigration In particular, his right
of his guilty plea.
Id. at 142.
we found that the misinformation to effective Constitution. assistance
denied the defendant
of counsel under the New Jersey
Id. at 141-43. on whether deportation conviction, assistance that results is a but by in an
We did not rest our analysis penal or collateral simply on whether ~provid[ingJ uninformed immigration defendant consequence
of a criminal ineffective information
Id. at 139-40. in effect
We looked at the federal that the
in 1998 and determined
pled to an offense
that constituted mandatory
an aggravated deportation. to we in no Id.
felony under federal at 140. misinform
that counsel was not permitted consequences,
his client about immigration
way suggested excused
that the then-professional from saying nothing
norms would have From
at all on the subject.
of the defendant
he would have silent
been just as disadvantaged about the deportation
if his attorneys
of his guilty plea. did not confine its ruling
That is why the Court in Padilla to cases involving only misinformation.
As the Court observed:
A holding limited to affirmative misadvice would invite two absurd results. First, it would give counsel an incentive to remain silent on matters of great importance, even when answers are readily available. Second, it would deny a class of clients least able to represent themselves the most rudimentary advice on deportation even when it is readily available. [Padilla, supra, 559 u.S. at 130 S. Ct. at 1484, 176 L. Ed. 2d at 296-97.J
F. Another required clear indication to provide that professional norms in 2005 consequences have
advice on immigration
is the court-mandated been completing
plea form that counsel
since 1988 in New Jersey. with the assistance
Beginning of counsel,
on January was
5, 1988, a defendant, required question
to circle nYes," nNo," or nN/A" to the following on the written plea form submitted to the trial court: States citizen
nDo you understand
that if you are not a United
or national, guilty?" Despite declares
you may be deported
of your plea of (Jan. 15, 1988)
this 1988 administrative that professional
the majority to remain
norms entitled consequences
silent on the immigration when the defendant immigration
of a guilty plea, except
the court to answer the sole Surely, defense counsel the
on the plea form.
has a greater accused guilty.
than the court to make certain consequences
of the material
of a plea of
II. For the period before perpetuating majority 2010, the majority condemned insists on The
the absurd distinction
will allow claims misinformed
when an attorney consequences attorney needed
a client about the deportation
of a guilty plea and deny such claims when the no advice at all to a client who desperately from his
to know that his plea would result in banishment from his family. The majority to various guilty
home and separation
highlights immigration to certain
the fact that after the 1996 amendments laws the removal of a noncitizen
6 That question has been amended several times since 1988 to make more clear that immigration consequences may flow from a plea of guilty.
"'is practically supra, 559
Ante at 25 (quoting
, 130 S. Ct. at 1480, 176 L. Ed. to the 1996 amendments, important the
2d at 292). majority criminal accurate certain
With that reference
concludes defense advice
that it is "particularly
now for secure
to be able to, at a minimum, on whether
for their clients
a guilty plea to removable." Ante at in 2005, for a
crimes will render them mandatorily
55 (emphasis added).
But then why was it not important date of the amendments,
nine years after the effective noncitizen of a plea? Padilla guiding referred to receive
advice about the immigration
to the applicable
advice to a noncitizen
of a plea. Padilla
It is not an overly onerous that for Sixth
given the stakes. purposes:
When the law is not succinct and straightforward a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear. [Id. at 2d at 296.J 130 S. Ct. at 1483, 176 L. Ed.
The overwhelming quotation in 2005. merely
here shows that this professional with those norms
in accordance reasonably
norms was not acting
III. In 2005, Gaitan, guilty to a deportable under the Immigration a lawful permanent drug offense and Nationality resident, pleaded felony
-- an aggravated Act.
See 8 U.S.C.A. in his
1101 (a) (43) (B), 1227 (a) (2) (A) (iii). petition for post-conviction
relief that his counsel consequences
failed to from
advise him that any immigration the conviction. probationary Although
Gaitan was sentenced
to a five-year of
term, he was deported Gaitan has alleged deficient
in 2008 as a consequence that his counsel was and Padilla. "was
his conviction. constitutionally
under Strickland Division
I agree with the Appellate entitled to an evidentiary
what, if any, removal
advice his attorney from the country." (App. Div. 2011).
gave him "regarding State v. Gaitan, However,
419 N.J. Super. 365, 370 that
even if a PCR court determined
counsel was deficient consequences
in not providing
advice on the immigration to show
of the plea, Gaitan would still be required
that he would not have accepted
the plea "but for counsel's
supra, 466 u.S. at 694, 104
S. Ct. at 2068, 80 L. Ed. 2d at 698.7
IV. In conclusion, effective assistance contrary to the Sixth Amendment Strickland, right to the for
who entered tolerates
guilty pleas before performance that
2010, the majority falls well outside conduct. having
the wide range of acceptable
professional 2010 without
For those who entered understanding
guilty pleas before
of the deportation
and who would not have pled guilty had they been adequately informed, no remedy will be afforded in our State courts. on federal habeas But
based on Orocio, corpus review. I believe norms, defense
relief may be available
that in 2005, based on the then-professional counsel had, at the very least, an obligation clients that a guilty plea carried including to
inform their noncitizen risk of adverse Accordingly,
did not create a new constitutional
In the companion case of Goulbourne, it appears that the defendant was sufficiently apprised of the immigration consequences of his guilty plea by the trial judge. Nevertheless, I would remand to the PCR court, which applied the incorrect standard in rendering a decision on Goulbourne's postconviction relief application.
but merely professional attorney's Strickland,
under prevailing whether See an
norms" was the measure performance
supra, 466 u.S. at 688, 104 S. Ct. at 2065, 80 L. Because the majority of Padilla, wrongly denies Gaitan the dissent.
Ed. 2d at 694. retroactive JUSTICE
LONG joins in this opinion.
SUPREME COURT OF NEW JERSEY NO. A-109 TO SEPTEMBER TERM 2010 Appellate Division, Superior Court
STATE OF NEW JERSEY, Plaintiff-Appellant,
FRENSEL GAITAN, Defendant-Respondent.
February 28,2012 Chief Justice Rabner PRESIDING
Justice LaVecchia OPINIONS BY
CONCURRING/DISSENTING DISSENTING OPINION BY
CHIEF JUSTICE RABNER JUSTICE LONG JUSTICE LaVECCHIA JUSTICE ALBIN JUSTICE HOENS JUSTICE PATTERSON JUDGE WEFING (Ua)
REVERSE AND REMAND X
X X X X X X
SUPREME COURT OF NEW JERSEY NO. A-129 SEPTEMBER TERM 2010 Appellate Division Superior Court
ON APPEAL FROM
STATE OF NEW JERSEY, Plaintiff-Appellant,
ROHAN GOULBOURNE, Defendant-Respondent.
February 28,2012 Chief Justice Rabner PRESIDING
OPINION BY CONCURRING/DISSENTING DISSENTING OPINION BY
Justice LaVecchia OPINION BY Justice Albin
CHIEF JUSTICE RABNER JUSTICE LONG JUSTICE LaVECCHIA JUSTICE ALBIN JUSTICE HOENS JUSTICE PATTERSON JUDGE WEFING (Ua)
REVERSE AND REMAND X
X X X X X X