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State of New Jersey v. Frensel Gaitan

February 28, 2012

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
FRENSEL GAITAN, DEFENDANT-RESPONDENT.
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
ROHAN GOULBOURNE, DEFENDANT-RESPONDENT.



On certification to the Superior Court, Appellate Division, whose opinion is reported at The opinion of the court was delivered by: Justice LaVECCHIA

SYLLABUS

(This syllabus is not part of the opinion of the Court. 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 9, 2011

Decided February 28, 2012

LaVECCHIA, J., writing for a majority of the Court.

In these appeals, the Court considers whether Padilla v. Kentucky, 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 if he 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 Goulbourne, 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 Goulbourne that he "may very well" be deported as a result of the plea. Goulbourne also reviewed and answered Question 17 on the plea form. Goulbourne 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 if he pled guilty and that he had the right to consult an immigration attorney. The PCR court conducted an evidentiary hearing. Although Goulbourne appeared to be focused during his plea hearing on potential jail time, the PCR court gave Goulbourne "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 Goulbourne 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 of law 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 counsel or 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, counsel has an affirmative obligation to inform a client when a plea places the client at risk of deportation. Padilla recognized no distinction between providing affirmative misadvice and providing no advice. Both the concurring and dissenting opinions disagreed with the majority's conclusion that a defense attorney must affirmatively explain the deportation consequences of a plea. (pp. 15-20)

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 if he 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 Nunez-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 Nunez-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 of the Appellate Division are REVERSED, and the matters are REMANDED to the trial court for further proceedings consistent with the Court's opinion.

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.

Argued November 9, 2011

JUSTICE LaVECCHIA delivered the opinion of the Court.

These companion appeals arose out of defendants' petitions for post-conviction relief (PCR). In both cases, defendants were lawful permanent residents who were indicted for drug offenses and entered guilty pleas. The guilty pleas rendered both defendants removable*fn1 under the Immigration and Nationality Act (INA), 8 U.S.C.A. § 1227(a)(2). Each alleges that he received ineffective assistance of counsel contrary to the standards set forth in State v. Nunez-Valdez, 200 N.J. 129 (2009), and Padilla v. Kentucky, 559 U.S. ___, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), because his attorney provided either no or incomplete information about the immigration consequences of a guilty plea, rendering the advice false and misleading.

In Nunez-Valdez, supra, we agreed that defendant demonstrated that he received ineffective assistance of counsel under Sixth Amendment standards when initial counsel had provided false advice assuring that deportation would not flow from defendant's guilty plea, and substituted counsel augmented that with affirmatively misleading information concerning the deportation consequences of defendant's plea of guilty, a matter that was of material interest to defendant at the time of his plea. 200 N.J. at 140-42. The United States Supreme Court went further in Padilla, supra, holding that defense attorneys now must advise their clients of potential immigration consequences of pleading guilty or risk providing constitutionally deficient assistance of counsel. 559 U.S. at ___, 130 S. Ct. at 1484, 176 L. Ed. 2d at 297. That standard for effective assistance of counsel was not fixed, for constitutional purposes, prior to Padilla.

The present appeals squarely raise the question of the retroactive application of the broader Padilla holding. Because of the shared issue of Padilla's retroactivity, we consolidated these appeals.

I.

A.

To anchor our analysis of the legal question raised by defendants, we begin with a brief summary of the circumstances giving rise to their PCR petitions. Additional factual detail is provided hereinafter.

On November 16, 2004, defendant Frensel Gaitan was indicted in Camden County for third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1); third-degree distribution of a CDS to a minor, N.J.S.A. 2C:35-5(a)(1), (b)(3), and N.J.S.A. 2C:35-8; and distribution of a CDS within one thousand feet of a school, N.J.S.A. 2C:35-7. He pled guilty to the charge of third-degree distribution of a CDS within one thousand feet of a school on June 27, 2005, and was sentenced on October 7, 2005, to five years' probation. Gaitan did not file a direct appeal.

In 2008, based on the drug conviction, which constitutes an aggravated felony, a removable offense under the INA, see 8 U.S.C.A. §§ 1101(a)(43)(B), 1227(a)(2)(A)(iii), Gaitan was removed. He thereafter filed a PCR petition on May 28, 2008, alleging ineffective assistance of counsel. Although Gaitan had responded "yes" to Question 17 on the plea form, which asked "Do you understand that if you are not a United States citizen or national, you may be deported by virtue of your plea of guilty," he asserted that counsel failed to warn him that his plea carried with it potential immigration consequences. That failure, according to Gaitan, constituted ineffective assistance of counsel. The PCR court denied defendant's petition on March 20, 2009, finding that defendant's affirmative answer to Question 17 implied that he was aware of his plea's possible impact on his immigration status.

The Appellate Division reversed, concluding that defense counsel's failure to provide advice on the possibility of deportation constituted attorney deficiency for the purposes of Gaitan's ineffective assistance of counsel claim. State v. Gaitan, 419 N.J. Super. 365, 369-70 (App. Div. 2011). The panel held that, regardless of whether that standard of attorney deficiency constituted a new rule, Gaitan was entitled to a remand for an evidentiary hearing on his claim. Id. at 373-74.

The State then filed a petition for certification, which was granted. State v. Gaitan, 206 N.J. 330 (2011).

B.

Defendant Rohan Goulbourne was arrested in Paterson in July 2007 and indicted by a Passaic County Grand Jury on charges of fourth-degree possession of a CDS, N.J.S.A. 2C:35-10(a)(3); two counts of fourth-degree distribution of a CDS, N.J.S.A. 2C:35-5(a)(1) and (b)(12); two counts of third-degree distribution of a CDS within five hundred feet of a public building, N.J.S.A. 2C:35-7.1(a) and N.J.S.A. 2C:35-5(a); two counts of third-degree distribution of a CDS within one thousand feet of a school, N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5(a); third-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(11); third-degree possession of a CDS with intent to distribute within one thousand feet of a school, N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5(a); second-degree possession of a CDS with intent to distribute within five hundred feet of a public building, N.J.S.A. 2C:35-7.1(a) and N.J.S.A. 2C:35-5(a); and fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2).

Following negotiations between the prosecutor and the public defender, Goulbourne agreed to plead guilty to one count of possession of a CDS with intent to distribute within one thousand feet of a school. The prosecutor, in return, recommended a sentence of three years' imprisonment with a fifteen-month period of parole ineligibility. At a March 2008 plea hearing, both defense counsel and the court informed Goulbourne that he "may very well" be deported as a result of the plea. The court also noted that Goulbourne answered all the questions on the plea form, which included Question 17, and that he signed the form after reviewing it with his attorney. Satisfied that Goulbourne knowingly and voluntarily was pleading guilty, the court accepted the plea. The court imposed the recommended sentence, and Goulbourne did not appeal.

Pursuant to the INA, on July 11, 2008, Goulbourne was charged with removal based on his conviction for a CDS offense, which qualified as an aggravated felony. 8 U.S.C.A. §§ 1101(a) (43)(B), 1227(a)(2)(A)(iii). He was paroled to U.S. Immigration and Customs Enforcement on May 11, 2009.*fn2 Goulbourne filed a PCR petition in September 2009, alleging that his counsel was ineffective for failing to explain that he would be deported if he pled guilty and for neglecting to advise him of his right to speak with an immigration attorney. The PCR court conducted an evidentiary hearing on April 8, 2010. After reviewing the testimony, the PCR court determined that, although Goulbourne appeared to be focused during his plea hearing on how much jail time he would be required to serve, the PCR court would give Goulbourne "the benefit of the doubt" that he would not have pled guilty had he been better advised of the certainty of deportation and, specifically, of his right to consult an immigration attorney. Accordingly, finding that the advice rendered to Goulbourne was "incomplete," the PCR court granted the PCR petition and allowed Goulbourne to withdraw his plea. The Appellate Division affirmed in an unpublished opinion.

The Attorney General superseded the Passaic County Prosecutor's Office and moved for leave to appeal. We granted the motion, State v. Goulbourne, 207 N.J. 226 (2011), and consolidated the appeal with the appeal in State v. Gaitan.

II.

A.

The Sixth Amendment of the United States Constitution and the New Jersey Constitution guarantee criminal defendants the right to counsel, which right requires that defendants receive "the effective assistance of counsel." Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S. Ct. 1441, 1449 n.14, 25 L. Ed. 2d 763, 773 n.14 (1970)); see State v. Fritz, 105 N.J. 42, 58 (1987) (adopting Strickland standard for ineffective assistance of counsel claims under Article I, Paragraph 10 of New Jersey Constitution). 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, supra, 466 U.S. at 687, 90 S. Ct. at 2064, 25 L. Ed. 2d at 693; Fritz, supra, 105 N.J. at 58; see also R. 3:22-1, -2 (establishing right to petition for post-conviction relief and setting forth grounds for relief, which include federal and state constitutional bases for ineffective assistance of counsel claims).

The right to counsel guarantees defendants the right "to competent counsel." State v. DiFrisco, 174 N.J. 195, 220 (2002). Attorneys are held to a standard of "reasonableness under prevailing professional norms." Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. Deficient performance is established by proving that "counsel's acts or omissions fell 'outside the wide range of professionally competent assistance' considered in light of all the circumstances of the case." State v. Castagna, 187 N.J. 293, 314 (2006) (quoting Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695). And, the evaluation as to the reasonableness of an attorney's performance must be "'viewed as of the time of counsel's conduct.'" Ibid. (quoting Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 694). Although a demonstration of prejudice constitutes the second part of the Strickland analysis, courts are permitted leeway to choose to examine first whether a defendant has been prejudiced, see Strickland, 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 performance was constitutionally deficient. Ibid. With respect to both prongs of the Strickland test, 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. See State v. Echols, 199 N.J. 344, 357 (2009); State v. Goodwin, 173 N.J. 583, 593 (2002).

It is well established that the Strickland standard applies with equal force to assertions of ineffective assistance of counsel associated with the entry of guilty pleas as to trial derelictions. See Hill v. Lockhart, 474 U.S. 52, 57, 106 S. Ct. 366, 369-70, 88 L. Ed. 2d 203, 209 (1985). In the specific context of showing 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 and would have insisted on going to trial.'" NunezValdez, supra, 200 N.J. at 139 (quoting DiFrisco, supra, 137 N.J. at 457).

With those general standards in mind, we turn to the two critical cases concerning ineffective assistance of counsel claims in which immigration consequences followed the entry of a guilty plea. We begin first with our 2009 Nunez-Valdez decision.

B.

In Nunez-Valdez, supra, this Court 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. 200 N.J. at 131. In 1987, in the context of passing on a claim of inadequate warning from a court accepting a plea as knowing and voluntary, this Court had expressed the view that there was no requirement to warn a pleading noncitizen client that his or her plea would result in certain collateral consequences. See State v. Heitzman, 107 N.J. 603, 604 (1987) (holding that defendant need only be warned of penal consequences, and not collateral consequences, of criminal pleas). We specifically noted that immigration ramifications are within the "collateral" designation. See ibid. That said, our case law nevertheless reflected an abiding concern about affirmative misinformation from counsel to a pleading client that could undercut a knowing and voluntary plea. See, e.g., State v. Bellamy, 178 N.J. 127, 142 (2003); State v. Howard, 110 N.J. 113, 125 (1988). That concern about the repercussions from affirmative misinformation included the serious ramifications that could flow from a plea in respect of a defendant's immigration status. Thus, prior to Nunez-Valdez, it was hardly revolutionary under New Jersey law that an attorney could not actually give wrong or inaccurate information about immigration consequences of a guilty plea without risking an assertion of having provided ineffective assistance. See State v. Chung, 210 N.J. Super. 427, 434-35 (App. Div. 1986) (addressing Strickland's deficiency prong in connection with counsel's advice on immigration consequences of plea, but finding no ineffective assistance of counsel due to absence of any actual misrepresentation by defense counsel); see also State v. Garcia, 320 N.J. Super. 332, 339-40 (App. Div. 1999) (noting that misinforming client can result in ineffective assistance that would support vacation of guilty plea, and remanding for evidentiary hearing to review claim that client was affirmatively misinformed about deportation consequence when guilty plea was entered).*fn3 Nunez-Valdez, supra, applied that principle in its holding.

In Nunez-Valdez, defendant Jose Nunez-Valdez pled guilty to fourth-degree criminal sexual contact, an offense that was equivalent to an aggravated felony carrying the consequence of mandatory deportation. 200 N.J. at 140. It was undisputed in the record before the PCR court that Nunez-Valdez's first attorney, Aaron Smith, mistakenly advised him that a guilty plea would not have any immigration consequences. Id. at 132, 140. Nunez-Valdez later obtained substitute counsel, Troy Archie, who testified that he told defendant that deportation was a "possibility," id. at 133-34; however, Nunez-Valdez testified otherwise, stating that Archie, like the first attorney, told him the plea would have no immigration consequences, id. at 133.

The PCR court found that Nunez-Valdez established deficient performance because Smith erroneously told him he would not be deported and Archie's later augmentation to that previous misadvice -- that deportation was a possibility -- was inexact and misleading to Nunez-Valdez because deportation was mandatory and, therefore, a certain consequence. Id. at 135. The PCR court accepted that Nunez-Valdez would have proceeded to trial had he known that a guilty plea would result in mandatory deportation, id. at 141, and therefore found that he had demonstrated that he was prejudiced, id. at 143.

The Appellate Division was of the view that the PCR court's factual findings were clearly mistaken and reversed the grant of PCR to Nunez-Valdez. Id. at 135. We granted certification and reversed the Appellate Division's judgment, concluding that sufficient credible evidence supported the PCR court's findings. Id. at 131. Giving typical deference due the findings of the PCR court, we held that Nunez-Valdez was misinformed by counsel about the deportation consequences of his plea, id. at 141-42, and that such misinformation satisfied the first prong of the Strickland test, id. at 140-142; and again giving due deference to the PCR court, we further affirmed the PCR court's finding that Nunez--Valdez would not have pled guilty if his attorneys had not materially misadvised him about the immigration consequences of his plea, id. at 142-43.

Because our holding was rooted in the belief in New Jersey law that it is "ineffective assistance of counsel to provide misleading, material information that results in an uninformed plea," it was irrelevant to our determination whether immigration consequences were regarded as "penal" or "collateral." Id. at 139-40.*fn4 To the extent that the then-pending decision of the United States Supreme Court in Padilla might involve that distinction, we elected to base our determination on state constitutional grounds. Ibid. Thus, our holding established that under the state constitutional right to counsel, an ineffective assistance of counsel claim could be based on the provision of false and affirmatively misleading advice about a plea to an offense that constituted an aggravated felony under federal immigration law that therefore would trigger mandatory deportation. Ibid.

We thus turn to the ground covered by the Padilla holding.

C.

The United States Supreme Court issued its decision in Padilla in 2010. In reversing the Kentucky Supreme Court's denial of post-conviction relief to Jose Padilla, a Honduran citizen who faced automatic deportation after forty years as a lawful United States resident because he pled guilty to a drug offense, the Supreme Court agreed with Padilla that constitutionally competent counsel would have advised him that his conviction for drug distribution made him subject to automatic deportation. Padilla, supra, 559 U.S. at ___, 130 S. Ct. at 1478, 176 L. Ed. 2d at 290.*fn5

Notably, the Court rejected application of a direct-versus-collateral consequences analysis to the issue at hand, pointing out that it had "never applied a distinction between direct and collateral consequences to define the scope of constitutionally reasonable professional assistance required under Strickland." Id. at ___, 130 S. Ct. at 1481, 176 L. Ed. 2d at 293 (quotation marks omitted). Moreover, because of the "unique nature of deportation," the Court found it unnecessary to consider whether a distinction between direct and collateral consequences is even appropriate for purposes of the Strickland analysis. Id. at ___, 130 S. Ct. at 1481, 176 L. Ed. 2d at 293.*fn6 Rather, the Court determined the distinction to be "ill-suited" to the task of evaluating a Strickland claim bottomed on the risk of deportation attendant to a guilty plea. Id. at ___, 130 S. Ct. at 1482, 176 L. Ed. 2d at 294. Recognizing that deportation is a "particularly severe 'penalty' . . . intimately related to the criminal process," id. at ___, 130 S. Ct. at 1481, 176 L. Ed. 2d at 293, the Court reviewed the significance of "recent changes in our immigration law [that] have made removal nearly an automatic result for a broad class of noncitizen offenders," id. at ___, 130 S. Ct. at 1481, 176 L. Ed. 2d at 294. Against that backdrop, the Court declared that "advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel." Id. at ___, 130 S. Ct. at 1482, 176 L. Ed. 2d at 294. The Court thus engaged in a Strickland analysis in light of that pronouncement.

After reviewing the general scope of reasonable assistance of counsel, the Court found that "[t]he weight of prevailing professional norms supports the view that counsel must advise her client regarding the risk of deportation." Ibid. In support of that finding, Justice Stevens, writing for the Court, observed that "authorities of every stripe -- including the American Bar Association, criminal defense and public defender organizations, authoritative treatises, and state and city bar publications -- universally require defense attorneys to advise as to the risk of deportation consequences for non-citizen clients." Id. at ___, 130 S. Ct. at 1482, 176 L. Ed. 2d at 295 (citation and quotation marks omitted). Creating a two-tiered analytical structure for assessing the duty of effective assistance, the Court distinguished cases where it is clear that deportation is certain, from cases where the immigration consequences 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 ___, 130 S. Ct. at 1483, 176 L. Ed. 2d at 296.]

However, the Court recognized no distinction between providing affirmative misadvice and providing no advice, reasoning that to limit the holding to affirmative misadvice would absurdly give counsel "an incentive to remain silent on matters of great importance, even when answers are readily available," while a holding limited to misadvice would "deny a class of clients least able to represent themselves the most rudimentary advice on deportation even when it is readily available." Id. at ___, 130 S. Ct. at 1484, 176 L. Ed. 2d at 296. The Court in Padilla concluded that counsel is duty-bound to provide a client "with available advice about an issue like deportation" and declared that "the failure to do so" satisfies the attorney-deficiency prong in Strickland's analysis." Id. at ___, 130 S. Ct. at 1484, 176 L. Ed. 2d at 297. Thus, the Court held that, to satisfy a defendant's Sixth Amendment right to effective assistance of counsel, counsel has an affirmative obligation to inform a client-defendant when a plea places the client at risk of deportation. Id. at ___, 130 S. Ct. at 1486, 176 L. Ed. 2d at 298.

Justice Alito penned a concurrence joined by Chief Justice Roberts. Id. at ___, 130 S. Ct. at 1487, 176 L. Ed. 2d at 299 (Alito, J., concurring). Expressing strong divergent views about the role of defense counsel, Justice Alito summarized the duties defense counsel owes to noncitizen clients as follows:

(1) they must not give unreasonably incorrect advice, as happened in Padilla; (2) they must alert the client that a plea may have deportation consequences; and (3) they must tell clients that if they wish to know more, they should consult an immigration attorney. Ibid. Justice Alito specifically disagreed with the majority's conclusion that a defense attorney must affirmatively explain what the deportation consequences of a plea will be. Id. at ___, 130 S. Ct. at 1487, 176 L. Ed. 2d at 299-300. He described that requirement as a "dramatic departure from precedent," one that "mark[ed] a major upheaval in Sixth Amendment law." Id. at ___, 130 S. Ct. at 1488, 1491, 176 L. Ed. 2d at 300, 304. He also chided the majority for "casually dismiss[ing] the long-standing and unanimous position of the lower federal courts with respect to the scope of criminal defense counsel's duty to advise on collateral consequences." Id. at ___, 130 S. Ct. at 1491, 176 L. Ed. 2d at 304.

In dissent, Justice Scalia, joined by Justice Thomas, referred to the Court's decision to require legal advice about the collateral consequences of a plea as having "no basis in text or in principle" of the Sixth Amendment. Id. at ___, 130 S. Ct. at 1495, 176 L. Ed. 2d at 308-09 (Scalia, J., dissenting). In the dissent's view, the Sixth Amendment guarantees a defendant a lawyer "for his defense against a criminal prosecutio[n]--not for sound advice about the collateral consequences of a conviction." Id. at ___, 130 S. Ct. at 1494, 176 L. Ed. 2d at 308 (alteration in original) (quotation marks omitted). And, the dissent viewed deportation as clearly a collateral consequence, rendering it categorically outside the scope of the Sixth Amendment's right to counsel.

Id. at ___, 130 S. Ct. at 1495, 176 L. Ed. 2d at 309. Indeed, going beyond Justice Alito's argument, the dissent asserted that because it is a collateral consequence, even affirmative misadvice about immigration consequences could not constitute ineffective assistance of counsel. Id. at ___, 130 S. Ct. at 1494-95, 176 L. Ed. 2d at 308.

III.

The aforementioned concurring and dissenting opinions are significant in particular for their emphasis on the change the Padilla decision wrought on the landscape of ineffective assistance of counsel claims. The variety of views expressed in Padilla importantly share common recognition that the substantive changes in immigration law have been vast. 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, beginning in 1990, most forms of relief for noncitizens who committed crimes qualifying as aggravated felonies were eliminated, thereby rendering them almost certain to be removed. The changes in immigration law provide necessary background information that sets the stage for the retroactivity question before us. Because understanding the evolution of federal immigration law over the past century is also essential in order to comprehend the importance to noncitizen defendants of legal advice regarding the immigration consequences of guilty pleas, we include the following summary of relevant immigration law developments.

A.

Congress first enacted a statute limiting immigration in 1875, when it barred prostitutes and convicts from entering the United States. See An Act Supplementary to the Acts in Relation to Immigration, ch. 141, 18 Stat. 477; see also John D. Skrentny & Micah Gell-Redman, Comprehensive Immigration Reform and the Dynamics of Statutory Entrenchment, 120 Yale L.J. Online 325, 333-34 (2011). Subsequent legislation expanded the grounds for inadmissibility and exclusion, such that, by 1917, Congress established that noncitizens could be deported for crimes committed in the United States. See Immigration and Nationality Act of 1917, Pub. L. No. 64-301, § 19, 39 Stat. 874, 889 (1917) (rendering noncitizens deportable for committing crimes of moral turpitude); see also Anita Ortiz Maddali, Padilla v. Kentucky: A New Chapter in Supreme Court Jurisprudence on Whether Deportation Constitutes Punishment for Lawful Permanent Residents?, 61 Am. U. L. Rev. 1, 16-17 (2011). In 1922, narcotics offenses were added to the list of crimes that could trigger deportation. See Act of May 26, ch. 202, 42 Stat. 596 (1922).

Subsequently, Congress passed the INA, and although it has been amended repeatedly, it continues to serve as the basis for federal law governing entry, exclusion, and removal of noncitizens. See 8 U.S.C.A. §§ 1101 to 1537; see also Charles Gordon et al., 1 Immigration Law & Procedure §§ 1.02(3)(c), 2.03 (2011). Section 237(a)(2) of the INA enumerates categories of noncitizens who are subject to removal, including those convicted of crimes of moral turpitude, any controlled substance offense other than simple possession of small amounts of marijuana, and any "aggravated felony." 8 U.S.C.A. § 1227(a)(2).

The list of offenses qualifying as aggravated felonies, as set forth in Section 101(a)(43) of the INA, is extensive, and includes, among others, such crimes as illicit trafficking in a controlled substance, illicit trafficking in firearms, certain crimes against minors, violent crimes resulting in at least one year of imprisonment, theft or burglary offenses resulting in at least one year of imprisonment, certain money laundering crimes, and certain human trafficking offenses. See 8 U.S.C.A. § 1101(a)(43) (defining aggravated felony). More recent legislation, including the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA), expanded the number of offenses that are considered aggravated felonies. See Pub. L. No. 104-208, § 321, 110 Stat. 3009, 3627-28 (1996). Importantly, removal of a noncitizen convicted of an aggravated felony is mandatory, see 8 U.S.C.A. § 1227(a)(2)(A)(iii) ("Any alien who is convicted of an aggravated felony at any time after admission is deportable."), and with few forms of relief available, a near certainty. See Padilla, supra, 559 U.S. at ___, 130 S. Ct. at 1480, 176 L. Ed. 2d at 292.

Despite authorizing removal based on the commission of certain enumerated crimes, Congress initially vested discretion with sentencing judges at both the state and federal level to recommend that a removable noncitizen not actually be removed. See Maddali, supra, at 17. That procedure, commonly called a judicial recommendation against deportation (JRAD), had binding effect. See ibid.; see also 8 U.S.C.A. § 1251(b)(2) (1990) (setting forth JRAD procedure). The INA also includes several waiver and relief provisions, such as those set forth in Sections 212(c), 212(h), 244, and 245(i), that allowed some noncitizens who were eligible for removal to escape that consequence. See, e.g., 8 U.S.C.A. §§ 1182, 1254, and 1255 (setting forth certain waiver provisions); see also Maddali, supra, at 17 (describing Section 212(c) relief from deportation).

In 1990, Congress began eliminating those forms of relief for noncitizens who committed aggravated felonies. The Immigration Act of 1990 repealed the provision permitting JRADs, thereby eliminating judicial discretion in cases involving removal of noncitizens who committed aggravated felonies. See Pub. L. No. 101-649, § 505, 104 Stat. 4978, 5050 (1990); see also Stephen H. Legomsky, The New Path of Immigration Law: Asymmetric Incorporation of Criminal Justice Norms, 64 Wash. & Lee L. Rev. 469, 498 (2007). In the same statute, Congress restricted the availability of Section 212(c) waivers, making anyone who served a term of at least five years' imprisonment for an aggravated felony ineligible. See Pub. L. No. 101-649, § 511, 104 Stat. 4978, 5052 (1990); see also Maddali, supra, at

18. The INA was amended again in 1996, pursuant to Section 441(d) of the Antiterrorism and Effective Death Penalty Act (AEDPA), which made all noncitizens who committed aggravated felonies ineligible for 212(c) waivers. See Pub. L. No. 104-132, 110 Stat. 1214 (1996); see also Lupe S. Salinas, Deportations, Removals and the 1996 Immigration Acts: A Modern Look at the Ex Post Facto Clause, 22 B.U. Int'l L.J. 245, 255-56 (2004). IIRAIRA further restricted the availability of waivers, cancellation of removal, and other ...


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