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State of New Jersey v. J.S


November 2, 2012


On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Accusation No. 1123-02.

Per curiam.



Submitted September 25, 2012

Before Judges Lihotz and Ostrer.

Defendant J.S. appeals from an order denying his second petition seeking post-conviction relief (PCR) based on claims of ineffective assistance of counsel (IAC) stemming from his attorney's alleged failure to adequately inform him of the immigration consequences of his guilty plea.

The trial court concluded defendant's claims were time barred, procedurally barred, and otherwise lacking sufficient merit to warrant further consideration in an evidentiary hearing. On appeal defendant argues:






We affirm.


Defendant is a Jamaican national who was admitted to the United States as a lawful permanent resident in 1998. On May 16, 2002, defendant pled guilty to third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a, pursuant to the terms of a negotiated plea agreement.

During the plea hearing, there was no specific discussion regarding defendant's immigration status. However, defendant circled "YES" in response to Question 17 of 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?"

Prior to accepting defendant's guilty plea, the trial judge questioned him extensively:

THE COURT: Are all of the statements set out . . . on the [plea] form true?

THE DEFENDANT: Yes, sir. . . . .

THE COURT: Are all of the statements on that form accurate and correct?


THE COURT: You also understand that by pleading guilty, you are admitting to the truth of the charges against you?


THE COURT: All right. In view of all of these questions and answers that we have gone through, do you still wish to plead guilty in this matter?


THE COURT: Defense counsel, are you satisfied that this plea is being entered voluntarily and of full knowledge of the defendant of all of his rights and the possible punishment that he faces?

[DEFENSE COUNSEL]: Yes, Your Honor.

THE COURT: I find there is a factual basis for the entry of this guilty plea. I find the plea has been entered voluntarily and not as a result of any threats and not on the basis of any representations or promises which are not set out on the record. I so find that this plea is entered with an understanding of the defendant of the charges against him, the consequences of the plea after full and adequate discussion with his attorney and fore these reasons, I will accept the plea of guilty.

At the September 6, 2002 sentencing hearing, defendant's counsel informed the trial judge defendant was from Jamaica.

In 2004, United States Immigration and Customs Enforcement (ICE) served defendant with a notice to appear and charged him as a deportable alien. Because defendant had been convicted of endangering the welfare of a child by engaging in sexual conduct, ICE determined he had committed an aggravated felony warranting deportation. Defendant challenged the conclusion that the nature of his conviction warranted deportation. An Immigration Judge ordered defendant's removal and the Board of Immigration Appeals (BIA) affirmed. Defendant appealed this determination.

Pending the immigration appeals process, defendant filed a PCR petition seeking to withdraw his guilty plea. Defendant claimed trial counsel was constitutionally ineffective because he misinformed defendant that he would not be deported as a result of his plea. The court rejected this contention and denied PCR, stating: "Based on question number 17 on the plea form and because [d]efendant . . . failed to offer any evidence other than a naked assertion, this [c]court finds that

[d]efendant was not misinformed during the plea process and that his attorney did not render ineffective assistance of counsel."

On June 29, 2006, the Third Circuit Court of Appeals vacated the BIA's order, concluding defendant's criminal conviction did not fall within the definition of sexual abuse of a minor and, therefore, was not an aggravated felony subjecting him to removal.

Although the Third Circuit's reversal prevented defendant's deportation, he filed a second PCR petition, arguing "his conviction for a crime of moral turpitude" will prevent him from re-entering the United States if he leaves the country. In his petition, defendant asserted "his attorney improperly advised him that he was not subject to deportation as a consequence of his plea," and failed to properly advise him of the applicable "immigration consequences of his plea." Defendant maintains "he is not guilty of the charge," but pled guilty because counsel advised a plea "was the only way to avoid going to prison." Defendant asserts he "would not have pled guilty and would have gone to trial" had he known the immigration consequences. Also, defendant sought an evidentiary hearing to present proofs warranting vacation of his conviction.

In a written decision, the PCR judge denied relief, determining defendant's PCR petition was time-barred by Rule 3:22-4 and Rule 3:22-12, and procedurally barred by Rule 3:22-5 because the issue was previously adjudicated in defendant's prior PCR petition. For completeness, the judge considered the merits of defendant's assertions, and found the claims amounted to nothing more than a "naked assertion in his brief that defense counsel mistakenly advised him that his guilty plea would not have any effect on his immigration status." The judge noted this lack of evidence in support of the petition was at issue during the first petition for [PCR]. This [c]court noted in [defendant's first PCR petition] . . . no affidavit or inquiry was made of prior counsel to determine if there was any basis for that application. Here, again, there was no affidavit or inquiry to determine if there was any basis for the present application.

Defendant appeals from the May 26, 2011 order denying PCR and his request for an evidentiary hearing.


"Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). Under Rule 3:22-2, there are four grounds for PCR:

(a) Substantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey;

(b) Lack of jurisdiction of the court to impose the judgment rendered upon defendant's conviction;

(c) Imposition of sentence in excess of or otherwise not in accordance with the sentence authorized by law . . . [;]

(d) Any ground heretofore available as a basis for collateral attack upon a conviction by habeas corpus or any other common-law or statutory remedy.

"A petitioner must establish the right to such relief by a preponderance of the credible evidence." Preciose, supra, 129 N.J. at 459 (citations omitted). To sustain that burden, a petitioner must articulate "specific facts" which "provide the court with an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565, 579 (1992).

Merely raising such a claim, however, does not entitle a defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, the trial court should grant an evidentiary hearing and make a determination on the merits of a defendant's claim only if the defendant has presented a prima facie claim in support of PCR. Preciose, supra, 129 N.J. at 462-63.

"To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate [a] reasonable likelihood of succe[ss] under the test set forth in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984) . . . ." Preciose, supra, 129 N.J. at 463. Under the first prong of the Strickland test, a "defendant must show that [defense] counsel's performance was deficient." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Under the second prong, a defendant must demonstrate "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 two-part test set forth in Strickland was adopted by this State in State v. Fritz, 105 N.J. 42, 58 (1987).

In demonstrating counsel's performance was deficient under the first prong of Strickland, a defendant must overcome "'a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). Further, because prejudice is not presumed, ibid., a defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984). In the context of a request to vacate a guilty plea, a defendant must show "a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985).

New Jersey's "public policy [aims] to promote finality in judicial proceedings," so the "rules provide various procedural bars [to PCR petitions]." State v. Echols, 199 N.J. 344, 357 (2009). One such procedural bar is Rule 3:22-5, which states: "A prior adjudication upon the merits of any ground for relief is conclusive whether made in the proceedings resulting in the conviction or in any post-conviction proceeding . . . or in any appeal taken from such proceedings." See also State v. Marshall, 173 N.J. 343, 350 (2002) (holding Rule 3:22-5 bars a petitioner from asserting as a ground for relief any claim previously adjudicated on the merits). This procedural bar applies where the claim raised is "'identical or substantially equivalent'" to a claim raised on direct appeal or in a prior PCR petition. State v. McQuaid, 147 N.J. 464, 484 (1997) (quoting Picard v. Connor, 404 U.S. 270, 276-77, 92 S. Ct. 509, 512-13, 30 L. Ed. 2d 438, 444 (1971)). One "very limited exception," under which Rule 3:22-5 may be relaxed, allows consideration of a previously adjudicated issue on the merits "when a 'constitutional problem presented is of sufficient import[.]'" State v. Franklin, 184 N.J. 516, 528 (2005) (quoting State v. Johns, 111 N.J. Super. 574, 576 (App. Div. 1970), certif. denied, 60 N.J. 467, cert. denied, 409 U.S. 1026, 93 S. Ct. 473, 34 L. Ed. 2d 319 (1972)). See also Pressler & Verniero, Current N.J. Court Rules, comment on R. 3:22-5 (2012) (stating "the rule is relaxable where the constitutional problems raised are of substantial import").

Further procedural and time limitations are set forth in Rules 3:22-4 and 3:22-12, which were amended effective February 1, 2010. Rule 3:22-4(b) requires the dismissal of a second or subsequent PCR petition unless:

(1) it is timely under R[ule] 3:22-12(a)(2); and

(2) it alleges on its face either:

(A) that the petition relies on a new rule of constitutional law, made retroactive to defendant's petition by the United States Supreme Court or the Supreme Court of New Jersey, that was unavailable during the pendency of any prior proceedings; or

(B) that the factual predicate for the relief sought could not have been discovered earlier through the exercise of reasonable diligence, and the facts underlying the ground for relief, if proven and viewed in light of the evidence as a whole, would raise a reasonable probability that the relief sought would be granted; or

(C) that the petition alleges a prima facie case of ineffective assistance of counsel that represented the defendant on the first or subsequent application for post-conviction relief.

Rule 3:22-12(a) in turn provides different time limitations on the filing of PCR petitions, depending on whether the defendant has filed a prior petition. Defendant's petition is governed by Rule 3:22-12(a)(2), which provides:

(2) Second or Subsequent Petition for Post-Conviction Relief. Notwithstanding any other provision in this rule, no second or subsequent petition shall be filed more than one year after the latest of:

(A) the date on which the constitutional right asserted was initially recognized by the United States Supreme Court or the Supreme Court of New Jersey, if that right has been newly recognized by either of those Courts and made retroactive by either of those Courts to cases on collateral review; or

(B) the date on which the factual predicate for the relief sought was discovered, if that factual predicate could not have been discovered earlier through the exercise of reasonable diligence; or

(C) the date of the denial of the first or subsequent application for post-conviction relief where ineffective assistance of counsel that represented the defendant on the first or subsequent application for post-conviction relief is being alleged.

Additionally, paragraph (c) was adopted effective September 1, 2009, and states: "These time limitations shall not be relaxed, except as provided herein." See also R. 1:3-4 (prohibiting enlargement of the limitation period specified in Rule 3:22-12, except as specifically provided by the rule itself). Guided by these principles, we review defendant's arguments.



Defendant challenges as error the PCR judge's conclusion his petition was time barred. In the alternative, defendant argues application of a limitations period to bar his claims is unconstitional, because "[a] categorical denial of all subsequent petitions filed after the one[-]year limit would result in the court denying claims with substantial constitutional issues the denial of which would cause significant harm to the claimants therein[,]" and result in a denial of due process of law. We disagree.

Defendant's current petition was filed in November 2010, making it subject to the limitations period stated in the current versions of Rules 3:22-4 and 3:22-12.*fn1 The PCR judge properly determined defendant's PCR petition was untimely because it was filed beyond the requisite one-year limitation period set forth in Rule 3:22-12(a)(2). To assure the finality of judgments, relaxation of the rule is prohibited. R. 3:22-12(c). See also State v. Afanador, 151 N.J. 41, 52 (1997) (noting courts should not relax the filing bar where the defendant had prior opportunities to assert his claims in a timely fashion and failed to do so); R. 1:3-4.

We also reject as unsubstantiated and unfounded defendant's constitutional challenge to the recently adopted one-year time bar. The one-year limitation provision allows ample opportunity to file a second or subsequent PCR petition following the occurrence of some legally relevant event, including the discovery of a factual predicate, a Supreme Court ruling, or the denial of relief because of ineffective assistance of PCR counsel. R. 3:22-12(a)(2)(A)-(C). If a second or subsequent petition does not rely on any of these events, then the substantive issues should have been presented in the initial petition seeking PCR.


Defendant also asserts the PCR judge erred in applying the procedural bar set forth in Rule 3:22-5 to preclude relief, arguing there was no prior adjudication of the merits of the issue here presented. In any event, defendant suggests the restrictions imposed by the rule should be relaxed because "a significant change in law occurred between [the filing of] his first and second [PCR] petitions and . . . the constitutional issues raised regarding citizenship and deportation are of substantial import and should be considered on their merits."

Defendant's prior PCR petition based the claim of ineffective assistance on counsel's allegedly inadequate advice regarding deportation. Defendant asserted "his attorney mistakenly 'advised him that based on his status [as a permanent resident], he would not be deported as a result of his plea.'" The facts show defendant's conviction did not and will not trigger deportation. See Franklin, supra, 184 N.J. at 528 (stating "the very limited exception carved out of Rule 3:22-5" is addressed to "legitimate and important constitutional question[s]").

Defendant again advances a general challenge to counsel's allegedly "incorrect advice regarding the effect of his guilty plea on immigration status[.]" As the trial judge noted, the absence of certifications, affidavits, or other factual support for defendant's contention, fails to distinguish it from his prior claim and there is no entitlement to relitigate the issue, which was previously presented. See Marshall, supra, 173 N.J. at 350, 355 (finding there could be no basis for claiming excusable neglect where "counsel raised the very issue defendant now raises . . . in defendant's PCR petition[]"); Cummings, supra, 321 N.J. Super. at 170. We also reject as unfounded defendant's suggestion that the trial court should have relaxed the Rule 3:22-5 procedural bar. We are not persuaded by defendant's uncertified, bald claim in his brief, which suggests he suffered constitutional deprivations. Moreover, simply raising constitutional issues does not warrant relaxation of the bar. State v. Trantino, 60 N.J. 176, 180 (1972) (stating "an issue, even of . . . constitutional dimensions, once decided, may not be relitigated") (internal quotation marks and citations omitted).

As to defendant's additional suggestion relaxation of the procedural bar is warranted by a "significant change in law" occurring between the filing of his first and second PCR petitions, we are not persuaded. We pause to recite the legal principles underpinning this argument.

The United States Supreme Court's decision in Padilla v. Kentucky imposed an affirmative obligation on criminal defense attorneys to inform their clients of the possible immigration consequences of entering a guilty plea. 559 U.S. __, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010). Thereafter, our Supreme Court held the rule enunciated in Padilla only applied prospectively. State v. Gaitan, 209 N.J. 339, 371-72 (2012). The Court noted new rules typically "do[] not apply retroactively to a case where direct appeal is over and the case is only being reviewed on a collateral basis," as is the case here. Id. at 364 (citing Teague v. Lane, 489 U.S. 288, 310, 109 S. Ct. 1060, 1075, 103 L. Ed. 2d 334, 356 (1989)). Additionally, the Court addressed results flowing from misinforming a defendant of the deportation consequences of a guilty plea in State v. Nunez-Valdez, 200 N.J. 129 (2009), a holding which did not change the law, but merely reinforced prior pronouncements.

"[T]he level of attorney competence described in Padilla has no application to guilty pleas entered prior to March 31, 2010, the day the decision in Padilla was announced," State v. Barros, 425 N.J. Super. 329, 332 (App. Div. 2012) (citing Gaitan, supra, 209 N.J. at 372, 373, 375-76), and its holding only applies prospectively.*fn2 Gaitan, supra, 209 N.J. at 371-72. Defendant entered his guilty plea in 2002, and therefore cannot rely on Padilla in forming his IAC claim.

Following our review of this matter, we conclude defendant's claim is governed by Nunez-Valdez and not Padilla. Consequently, relaxation of Rule 3:22-5 is not required and the trial court properly concluded defendant's claim is procedurally barred.


Defendant finally asserts the PCR court erred in dismissing his IAC claim premised on counsel's incorrect immigration advice without the benefit of an evidentiary hearing. As we have noted, the trial judge properly declined to grant an evidentiary hearing because defendant did not "satisfy his burden of proving that he was affirmatively given any mis-advice."

Before granting an evidentiary hearing, the trial court must examine the affidavits or certifications submitted, and "the transcripts of the plea colloquy and sentencing hearing . . . to determine if either transcript provides support" for an IAC claim. Gaitan, supra, 209 N.J. at 381. The record here does not contain any certifications, affidavits, or other evidence to support a prima facie claim of IAC. Moreover, defendant's answer to Question 17 on the plea form, and his admission during the plea hearing, reflect he reviewed the form with counsel, understood its contents, and answered all questions accurately, thus belying a claimed lack of awareness his conviction could entail immigration consequences. On this record, an evidentiary hearing was not necessary.


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