Gaitan v. Goulbourne

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.
Argued November 9, 2011 – Decided February 28, 2012
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 (Paula T. Dow, Attorney General, 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).
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 removable1 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. Nuñez-Valdéz, 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
1 Over 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 information about the immigration consequences
of a guilty plea, rendering the advice false and misleading.
In Nuñez-Valdéz, 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, 2009.2 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.
2 Pursuant to 8 U.S.C.A. § 1226, the federal government is
authorized to take into custody and, pending a final decision on whether they are to be removed, detain noncitizens who have
committed crimes subjecting them to removal.
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.’” Nuñez-
Valdéz, 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 Nuñez-Valdéz
decision.
B.
In Nuñez-Valdéz, 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 Nuñez-Valdéz,
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).3 Nuñez-Valdéz, supra, applied that
principle in its holding.
In Nuñez-Valdéz, defendant Jose Nuñez-Valdéz 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 Nuñez-Valdéz’s first
attorney, Aaron Smith, mistakenly advised him that a guilty plea
would not have any immigration consequences. Id. at 132, 140.
Nuñez-Valdéz later obtained substitute counsel, Troy Archie, who
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).
testified that he told defendant that deportation was a
“possibility,” id. at 133-34; however, Nuñez-Valdéz 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 Nuñez-Valdéz 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 Nuñez-Valdéz because deportation was mandatory
and, therefore, a certain consequence. Id. at 135. The PCR
court accepted that Nuñez-Valdéz 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 Nuñez-Valdéz. 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 Nuñez-Valdéz 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 Nuñez-Valdéz 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 139-40.4 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.
4 Although the penal-versus-collateral dichotomy sharply
separated the parties and amici in Nunez-Valdez, see id. at 136-
37, 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 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 290.5
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
5 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,” 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 293.6 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.
6 That said, the Court expressed awareness of the dichotomy’s use
in analyzing ineffective assistance claims, noting that the
Kentucky Supreme Court was “not 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 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 previous forms of relief.
See Pub. L. No. 104-208, § 348, 110 Stat. 3009, 3039 (1996); see also Gordon, supra, at § 2.04(14)(c).
Because of those changes to immigration laws, “if a
noncitizen has committed a removable offense after the 1996
effective date of these amendments, his removal is practically
inevitable . . . .” Padilla, supra, 559 U.S. at ___, 130 S. Ct.
at 1480, 176 L. Ed. 2d at 292.
B.
As noted, well prior to our holding in Nuñez-Valdéz, this
Court had taken the position that a defendant’s guilty plea is
not vulnerable because neither the court nor counsel warned the
defendant about the deportation consequences of the guilty plea.
See Heitzman, supra, 107 N.J. at 604 (“[D]efendant need be
informed only of the penal consequences of his plea and not the
collateral consequences, such as . . . effect on immigration
status . . . .” (citation and quotation marks omitted)). The
distinction between penal and collateral consequences was
reaffirmed by this Court as recently as 2005. See State v.
Johnson, 182 N.J. 232, 236 (2005) (“Although a court is not
responsible for informing a defendant of all consequences
flowing from a guilty plea, at a minimum the court must ensure
that the defendant is made fully aware of those consequences
that are ‘direct’ or ‘penal.’”) (citing Howard, supra, 110 N.J.
at 122).
That said, with Nuñez-Valdéz, our Court agreed with the
trial court that wrong or inaccurate advice from counsel about
the immigration consequences, and specifically deportation, that
would result from entry of a guilty plea, presented ineffective
assistance of counsel. 200 N.J. at 141-42 (finding support for
trial court’s deficiency holding). That holding reflected
previous concern that a plea cannot be entered knowingly and
voluntarily when an attorney affirmatively gives wrong or
inaccurate information material to a pleading defendant about
the consequences of a guilty plea. See id. at 139-42; see also
Bellamy, supra, 178 N.J. at 142 (discussing importance to
pleading client of understanding plea’s consequences); State v.
Nichols, 71 N.J. 358, 361 (1976) (allowing defendant to withdraw
plea where he was misinformed about material element of plea);
Garcia, supra, 320 N.J. Super. at 339-40 (stating that pleas may
be vacated when defendants are provided with affirmative
misinformation).
Moreover, notwithstanding that deportation was a potential
collateral consequence of a guilty plea, see Heitzman, supra,
107 N.J. at 604, our Court ensured that notice of that possible
consequence was provided to a criminal defendant through
inclusion of a question addressing the subject in our required
plea form. In 1988, what is today known as Question 17, and was
then labeled Question 16, was incorporated into the plea form.
See Administrative Directive # 1-1988 (Jan. 15, 1988). It was
added in response to Chief Justice Wilentz’s Heitzman dissent,
which had urged that defendants be advised of the deportation
consequences of their guilty pleas, 107 N.J. at 606-07 (Wilentz,
C.J., dissenting), and expressed concern that “the possibility
of deportation, even if viewed as a collateral consequence,
obviously can have a severe impact on a person’s life,” id. at
606 (citation omitted). In its original form, the question
asked if a defendant who is not a citizen understood that he
“may be deported by virtue of [the] plea of guilty.”
Administrative Directive # 1-1988 (Jan. 15, 1988).
The question remained in that form throughout the changes
in immigration law during the 1990s and early years of the new
millennium that incrementally removed discretion from the system
and tilted more and more toward compelling deportation.
Eventually, the plea form question was broken into two parts –
first asking if the defendant was a citizen and, if the response
was no, then asking whether the defendant understood that he
“may be deported by virtue of [his] plea of guilty.”
Administrative Directive # 14-08 (Oct. 8, 2008), available at
http://www.judiciary.state.nj.us/directive/2008/dir_14_08.pdf
(emphasis added). Plainly, despite the added emphasis of the
two-part question, the essential phraseology remaining in the
second part to the question demonstrated uneasiness with any
attempt to craft a question that could come close to addressing
the many nuances that could arise in a noncitizen’s
circumstances. A subsequent 2009 amendment to Question 17,
which was in part a response to concerns expressed in Nuñez-
Valdéz, added more subparts, which inquired into a defendant’s
understanding that he will be subject to deportation for
pleading guilty to a crime constituting an “aggravated felony”
under federal law and asked whether the defendant understood his
right to seek legal advice on his immigration status before
pleading guilty. Administrative Directive # 08-09 (Sept. 4,
2009), available at http://www.judiciary.state.nj.us/directive/
2009/dir_08-09.pdf. Even that refinement did not obligate
defense counsel to become an immigration counselor, but it did
attempt to raise a defendant’s consciousness of the risk of
deportation and to provide an opportunity for a defendant to
seek counsel specialized in the finer points of immigration law.7
7 As of August 2011, the plea form was again amended. See
Administrative Directive # 05-11 (Aug. 1, 2011), available at 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 of the United States? [Yes] [No]
If you have answered “No” to this question, you must
answer Questions 17b – 17f. If you have answered
“Yes” to this question, proceed to Question 18[.]
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? [Yes] [No]
Nothing in that change foretold that defense counsel was
expected to become versed in immigration law in order to secure a knowing and voluntary plea.
We now turn to the question of Padilla’s retroactivity.
IV.
A.
Both the Attorney General and the State maintain that the
Supreme Court’s holding in Padilla represents a new rule that
does not apply on collateral review in either appeal. Rather,
both essentially argue that under a federal retroactivity
analysis, Padilla 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).]
pipeline retroactivity to the case in which the rule was
announced, all cases on direct review, and all future cases, but not in cases on collateral review, such as the present appeals from PCR claims.
As for defendants, Gaitan resists the argument that Padilla
represents a new rule and, further, emphasizes that he was
misinformed about the deportation consequences of his plea as a
result of the absence of specific information about the
immigration consequences he faced. Goulbourne, on the other
hand, seemingly assumes that Padilla represents a new rule of
law but contends that retroactivity does not depend on whether
the case is on direct or collateral review; rather, he
emphasizes that his plea was flawed because although he was
informed that he “very well may” be deported as a result of his
plea, he was not told that deportation would be automatic.
B.
Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed.
2d 334 (1989), governs retroactivity under federal law. See
Whorton v. Bockting, 549 U.S. 406, 416, 127 S. Ct. 1173, 1181,
167 L. Ed. 2d 1, 10-11 (2007). In essence, in determining
whether a rule is applied retroactively, the decision turns on
whether the rule is considered new or old. See ibid. 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. See Teague, supra, 489 U.S. at 310, 109 S. Ct. at 1075, 103 L. Ed. 2d at 356.
A rule of law 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.” Id. at 301, 109 S.
Ct. at 1070, 103 L. Ed. 2d at 349. In turn, an outcome is not
dictated by precedent if it is “susceptible to debate among
reasonable minds.” Butler v. McKellar, 494 U.S. 407, 415, 110
S. Ct. 1212, 1217, 108 L. Ed. 2d 347, 356 (1990). Disagreement
among federal courts or among Supreme Court justices has been
recognized as evidence of such reasonable debate. See Beard v.
Banks, 542 U.S. 406, 414-15, 124 S. Ct. 2504, 2512, 159 L. Ed.
2d 494, 505 (2004) (finding dissent of four justices was
evidence that reasonable jurists could differ); Butler, supra,
494 U.S. at 415, 110 S. Ct. at 1217, 108 L. Ed. 2d at 356-57
(noting circuit split as evidence that reasonable minds could
differ). The existence of conflicting authority is not of
itself dispositive that a rule is new, however. See Williams v.
Taylor, 529 U.S. 362, 410, 120 S. Ct. 1495, 1522, 146 L. Ed. 2d
389, 428 (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)
That said, for new rules there is a “general rule of
nonretroactivity” on collateral review. Danforth v. Minnesota,
552 U.S. 264, 279, 128 S. Ct. 1029, 1040, 169 L. Ed. 2d 859, 871
(2008). A new rule only applies retroactively on collateral
review if it fits into one of two exceptions: either it
“render[s] types of primary conduct ‘beyond the power of the
criminal law-making authority to proscribe,’” or it is a
“‘watershed’ rule[] that ‘implicate[s] the fundamental fairness
of the trial.’” Id. at 274-75, 128 S. Ct. at 1037-38, 169 L.
Ed. 2d at 868 (quoting Teague, supra, 489 U.S. at 311-12, 109 S.
Ct. at 1075-76, 103 L. Ed. 2d at 356). Neither of those
exceptional circumstances is evident here. The case does not
implicate substantive criminal activity nor does it reach the
heights required for a “watershed” rule. To be a “watershed”
rule, the rule must both “be necessary to prevent an
impermissibly large risk of an inaccurate conviction” and “must
alter our understanding of the bedrock procedural elements
essential to the fairness of a proceeding.” Whorton, supra, 549
U.S. at 418, 127 S. Ct. at 1182, 167 L. Ed. 2d at 12 (citations
and quotation marks omitted). To meet the latter requires an
extraordinary showing. Id. at 421, 127 S. 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)).
Ed. 2d at 14.9 Since it was announced in Teague, no new rule has met the “watershed” threshold. Id. at 418, 127 S. Ct. at 1182, 167 L. Ed. 2d at 12.
Thus, the retroactivity issue under federal law devolves to
whether Padilla represented the announcement of a new rule or
not.
C.
1.
In the wake of Padilla, federal district courts were
divided on whether it was retroactive. See Chaidez v. United
States, 655 F.3d 684, 688 (7th Cir. 2011) (citing examples);
Diop v. ICE/Homeland Sec., 656 F.3d 221, 228 n.5 (3d Cir. 2011)
(same).
A smaller body of law exists among the circuit courts,
though the existing cases similarly reflect a division on the
question of Padilla’s retroactivity. The Third Circuit, the
first Court of Appeals to address the issue, initially concluded
that Padilla involved the application of the existing Strickland
test, which made its holding applicable on collateral review.
See United States v. Orocio, 645 F.3d 630, 634 (2011). However,
the same panel of Third Circuit judges thereafter noted both
9 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.
that “there is no judicial consensus on the issue [of Padilla’s
retroactivity] and [that] many lower courts have come to a
contrary conclusion.” Diop, supra, 656 F.3d at 228 n.5 (calling
possibility that Padilla is not retroactive “far from remote”).
And, both the Tenth and Seventh Circuit Courts of Appeal
recently have concluded that Padilla announced a new rule of
law, holding therefore that, under Teague’s retroactivity
analysis, it should not be retroactively applied to cases on
collateral review. See Chaidez, supra, 655 F.3d at 694; United
States v. Chang Hong, ___ F.3d ___ (10th Cir. 2011).
Because Padilla involved an application extending
Strickland to an area of attorney performance previously
unaddressed by the Supreme Court, and did not involve the
overruling of an earlier precedent, the retroactivity analysis
is aptly designated as “difficult.” See Chaidez, supra, 655
F.3d at 689 (citing Saffle v. Parks, 494 U.S. 484, 488, 110 S.
Ct. 1257, 1260, 108 L. Ed. 2d 415, 424 (1990)). Guided by
federal retroactivity law, we are persuaded that Padilla
represents a new rule of law that, under federal law, is not
retroactive and is therefore inapplicable to cases on collateral
review. In reviewing the developing law, the stronger argument
lies against Padilla’s retroactivity. That argument succeeds in
the Chaidez and Chang Hong decisions, both of which rely in
large part on the array of views expressed in the majority,
concurring, and dissenting opinions of the justices writing in
Padilla in finding that the Padilla decision was not dictated by precedent and that it represents a new and novel rule,
notwithstanding its Strickland setting.
2.
A major argument in favor of Padilla’s retroactivity is
that it involves the application of the time-honored Strickland test for ineffective assistance of counsel to new facts
concerning attorney performance and, therefore, cannot meet the definition of a new rule. See Williams, supra, 529 U.S. at 382, 120 S. Ct. at 1507, 146 L. Ed. 2d at 411. Implicit in our
finding that Padilla was not dictated by precedent is rejection of the argument that no case applying the Strickland test can announce a new rule. As the Chaidez court noted,
[e]ven the majority [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 (citations and quotation
marks omitted).]
Although the issue is a challenging one, as we see it,
Padilla involved no simple application of the well-established
Strickland rule to a new set of 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.”
Chaidez, supra, 655 F.3d at 693. Now, counsel must provide
affirmative advice on a subject not formerly required and,
importantly, ineffective assistance claims may be substantiated
on grounds other than giving affirmative misinformation. See
ibid. There are uncertain contours to the scope of advice about
the risk of deportation that, under the majority’s holding, now
must be addressed by counsel. See ibid. That uncertainty about
the scope of advice now required, on a subject not before made a
mandatory subject for review with a pleading noncitizen client,
naturally affects our perspective that this pronouncement is a
“new” rule of law. And, it directly impacts whether it must be
applied retroactively when reviewing, collaterally, pleas
entered before this obligation was made express. Indeed, the
Tenth Circuit emphasized that point, stating “Padilla is a new
rule of constitutional law not because of what it applies –
Strickland — but because of where it applies — collateral
immigration consequences of a plea bargain.” Chang Hong, ___
F.3d at ___. That reasonable minds could disagree about anticipating
Padilla’s holding is illustrated not only by the various points
of view expressed in the Padilla opinions, but also by the pre-
Padilla opinions of lower federal courts, including nine circuit
courts, and many state courts that had concluded there was no
Sixth Amendment duty to warn clients about the risk of a
collateral consequence, including deportation, from a guilty
plea. See Padilla, supra, 559 U.S. at ___, 130 S. Ct. at 1481
n.9, 176 L. Ed. 2d at 293 n.9 (collecting cases); Chang Hong,
supra, ___ F.3d at ___ (citing Gabriel J. Chin & Richard W.
Holmes, Jr., Effective Assistance of Counsel and the
Consequences of Guilty Pleas, 87 Cornell L. Rev. 697, 699
(2002)). That case law weighs heavily in favor of finding that
Padilla announced a new rule of constitutional law.
Although the Supreme Court had not previously foreclosed
application of a Strickland analysis to attorney performance in
respect of collateral consequences of a guilty plea, neither had
it held such an analysis to be applicable. See Chang Hong,
supra, ___ F.3d at ___. The weight of that precedent is not
overridden by the Padilla majority’s resort to developments
about professional standards, as salutary as they undoubtedly
are. Professional standards cannot themselves establish a rule
of law; only a court holding can accomplish that. See Bobby v.
Van Hook, ___ U.S. ___, 130 S. Ct. 13, 17, 175 L. Ed. 2d 255,
259 (2009) (per curiam) (citing Strickland to underscore that
standards from professional organizations such as ABA serve as
guides, not definitions, of reasonable performance); id. at ___,
130 S. Ct. at 20, 175 L. Ed. 2d at 262-63 (Alito, J.,
concurring) (“It is the responsibility of the courts to
determine the nature of the work that a defense attorney must do
. . . in order to meet the obligations imposed by the
Constitution.”). Although the Supreme Court stated in INS v.
St. Cyr that defense counsel should advise clients about
immigration consequences, see 533 U.S. 289, 323 n.50, 121 S. Ct.
2271, 2291 n.50, 150 L. Ed. 2d 347, 376 n.50 (2001), the context
was not a discussion of the Sixth Amendment right to counsel,
and the Court did not require such advice.
As noted, even Padilla itself does not provide evidence
that the Court believed it was discussing and applying an “old”
or existing rule of law. We draw no inference supportive of
such a belief from the fact that Padilla was heard on habeas
corpus review, for Teague’s holding — that a new rule does not
apply on collateral review unless it fits into an exception –
can be waived,10 and Kentucky did not raise as a defense that
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 S.
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
Padilla was seeking application of a new rule on habeas corpus
review. See Chaidez, supra, 655 F.3d at 693-94. It is more
likely that the Court viewed Teague as waived for purposes of
its application to Padilla’s ineffective assistance of counsel
claim, than that the opinion, in its entirety, be regarded as
incorporating a retroactivity analysis applicable to all matters
on collateral review. See id. at 694. Further, the Padilla
majority’s dismissal of concerns about unleashing a flood of
challenges to final convictions, see Padilla, supra, 559 U.S. at
___, 130 S. Ct. at 1484-85, 176 L. Ed. 2d at 297-98, is fairly
ambiguous. If Padilla constituted an “old” rule, it would apply
to all cases on direct appeal or collateral review; but, if it
constituted the announcement of a new rule not within a
recognized exception in the retroactivity analysis, then it
nevertheless would apply to all pled cases on direct appeal with
post-conviction ineffective assistance of counsel claims yet to
be addressed and could unsettle a great number of pleas through
a “flood” of challenges to final convictions. The Court could
have been referring to one, or the other, degree of floods. The
mere reference to a flood is not illuminating of the question at
hand.
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, 55-
56 (1994)).
In the end, the fact that Padilla involves an extension of Strickland is not determinative of whether it is a new rule or not. As the Seventh Circuit stated when reaching the same
determination,
[w]e 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 F.3d at 692-93
(citations omitted).]
We similarly conclude that Padilla represents a new
constitutional rule of law that, for Sixth Amendment purposes,
is not entitled to retroactive application on collateral review
under Teague. We cannot say that prior to issuance of the
holding in Padilla, attorneys would have known or expected that
the constitutional benchmark for effective assistance of counsel
required that they advise noncitizen clients of the risk of
immigration consequences, and further that they must do so even
when the risk of those consequences is not clearly predictable.
Padilla unequivocally establishes that it is now mandatory to
advise on the subject as part of providing constitutionally
effective assistance of counsel to a pleading noncitizen
criminal defendant. Specific counseling must occur when the
risk of deportation arises as a result of a guilty plea. The
Padilla obligation of counsel is thus broad, not precisely
defined, and most importantly novel as the new baseline
constitutional standard for performance. Notwithstanding our
dissenting colleagues’ well-intentioned desire to portray this
affirmative obligation to advise on immigration consequences as
one long-recognized by the defense bar, the assertion finds
inadequate support through the cited references to professional
organizations’ advocacy standards. As previously noted,
professional organizations, although a source of information on
preferred professional norms, do not set the standard for
constitutional performance. See Van Hook, supra, ___ U.S. at
___, 130 S. Ct. at 17, 175 L. Ed. 2d at 259. Justice Alito’s
writing on this subject only underscores that the
constitutionally required level of performance must be defined
by the courts. See id. at ___, 130 S. Ct. at 20, 175 L. Ed. 2d at 262-63 (Alito, J., concurring).
In sum, based on our review of the pertinent standards and persuasive authority available, we hold that Padilla’s new
constitutional pronouncement is not entitled to retroactive
application on collateral review based on federal retroactivity standards.
D.
Because it is unclear in defendant Goulbourne’s appeal
whether he is arguing for retroactivity of Padilla based only on
federal law, or on federal and state law, we also address
Padilla from a state retroactivity law perspective and further
hold that Padilla is not entitled to retroactive application
based on a state law retroactivity analysis. See State v. Dock,
205 N.J. 237, 254 (2011) (citing State v. Cummings, 184 N.J. 84,
97 (2005)) (acknowledging that New Jersey’s retroactivity
analysis, like federal law, pivots on whether rule is “new”).11
11 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 rule and whether it
would be furthered by a retroactive
Certainly, measured at the time of Goulbourne’s guilty plea in 2008, Padilla was novel and unanticipated. Prior to Nunez-
Valdez, immigration consequences had been categorized as
collateral consequences of a guilty plea as to which there was
no obligation to warn defendants. See Heitzman, supra, 107 N.J. at 604. Thus, Padilla’s holding that, if the deportation
consequences are clear, a defendant must be warned that he or
she will be deported was a new rule of law compared to the
existing law in New Jersey.
With Nuñez-Valdéz, our Court expressly acknowledged that
wrong advice, followed by inaccurate and misleading information
on immigration consequences (and specifically deportation) that
is material to a pleading noncitizen client, can present
ineffective assistance of counsel. But, Padilla now goes
further than Nuñez-Valdéz’s requirements in respect of both
aspects to its holding. Padilla holds that “when the
deportation consequence [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, supra, 184 N.J. at 97 (citation omitted)).]
The first factor, the purpose of the rule, is “pivotal.” Ibid. (citing Cummings, supra, 184 N.J. at 97).
counsel’s affirmative duty and obligation is to address the
subject and to “give correct advice.” 559 U.S. at ___, 130 S.
Ct. at 1483, 176 L. Ed.2d at 296. Thus, under Padilla’s
holding, specific advice must be given on deportation
consequences denoted as mandatory under federal law. Ibid.
That was not our law, even under the Nuñez-Valdéz holding.
Moreover, affirmative advice must be given even when the risk of immigration consequences is less than crystal clear. Ibid. The Padilla decision modulated its requirement in those scenarios,
stating that “[w]hen the law is not succinct and
straightforward,” and “the deportation consequences of a
particular plea are unclear or uncertain,” “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.” Ibid. That additional affirmative obligation
requires a new, and nuanced, analysis that also was never before articulated in our case law.
We already have held that the narrow definition of what
constitutes a new rule compels the conclusion that Padilla
announced a new rule, and that federal retroactivity law
therefore holds that Padilla is not entitled to retroactive
effect on collateral review. We reach the same conclusion using
a state retroactivity analysis. That said, although Padilla
will not apply retroactively, Nuñez-Valdéz still governs the
standard of attorney performance in New Jersey in ineffective assistance of counsel claims on collateral review. Thus, if
either of the PCR applicants in the present appeals presents a claim showing that he was provided with false and affirmatively misleading advice when entering his plea, then the standard of performance expected of counsel may have been breached.
We thus turn to the specific facts of the two matters
consolidated for purposes of this appeal.
V.
A.
Defendant Gaitan claims that he was misinformed on the
immigration consequences of his plea agreement and that he is
entitled to a hearing on his petition for post-conviction
relief. Although Gaitan claims that he received no information,
he concedes that the record contains evidence that he reviewed
the plea form with counsel. Notations on the plea form indicate
that Question 17 was addressed with him, and no evidence was
proffered demonstrating that he received any misinformation on
the subject. Therefore, Gaitan, at a minimum, was put on notice
of the issue of potential immigration consequences through the
plea form, which distinguishes this matter from Nuñez-Valdéz,
where the defendant received false and affirmatively misleading
information.
Nevertheless, Gaitan compares the absence of information
about the immigration consequences of his plea to
misinformation, and thus claims a right to an evidentiary
hearing. He further asserts that the plea colloquy could not
cure the lack of notice because the colloquy did not involve a
specific explanation of Question 17, but instead inquired only
generally about his understanding of the plea form. Defendant
adds that deportation as a result of his plea easily would have
been ascertainable from the relevant removal statute, but
neither counsel nor the court advised him of that.
As noted previously, the rule announced in Nuñez-Valdéz was
not a new rule of law in New Jersey’s appellate case law. In
2005, when Gaitan entered his guilty plea, case law addressing
the provision of misinformation to a defendant as to the
deportation consequences of a guilty plea supported that the
rendering of incorrect advice to a defendant on the deportation
consequences of a plea agreement could be sufficient to prove a
prima facie case of ineffective assistance of counsel. See
Garcia, supra, 320 N.J. Super. at 339-40; Chung, supra, 210 N.J.
Super. at 434-35.
The State concedes that Nuñez-Valdéz did not announce a new rule, and that its holding applies on collateral review to
defendant’s plea. However, the State contends that defendant neither received incorrect advice nor was affirmatively
misadvised with regard to his immigration status and, therefore,
he is not entitled to an evidentiary hearing under Nuñez-Valdéz.
We agree, first, that Nuñez-Valdéz did not announce a new rule
of law with respect to Gaitan’s plea. And, we agree, second,
that Nuñez-Valdéz does not afford relief to Gaitan because it
addressed affirmative misinformation and misleading advice, as
opposed to an absence of advice regarding deportation
consequences of a plea agreement. We cannot conclude that
before Padilla’s pronouncement about the duty to advise on the
mandatory deportation consequences of certain convictions, the
law required counsel to have affirmatively advised Gaitan on
that subject. We are unable to conclude that following the
then-existing plea form resulted in misadvice being provided to
Gaitan, particularly where there is no evidence or claim that,
at the time, defendant sought more information about immigration
consequences and was then misinformed by counsel.
In sum, Padilla does not apply retroactively to impose a
higher obligation on counsel, and we find no violation of Nuñez-
Valdéz’s holding in the record presented by Gaitan. That we
determined in Nuñez-Valdéz to further 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
plea form vest further rights in Gaitan or others who seek to
have their pleas reviewed collaterally. Rather, the changes to
our plea form reflect the challenge involved in predicting with certainty the immigration consequences of a guilty plea.
Because Gaitan neither received affirmative misadvice, nor
provided any support for his bald assertion that he would not have pled had he known of the deportation consequences, he is not entitled to an evidentiary hearing.
B.
Defendant Goulbourne had the benefit of an evidentiary
hearing conducted by the PCR court on April 8, 2010. In the PCR
court’s decision, issued the next day, the PCR court gave
Goulbourne “the benefit of the doubt” that he would not have
pled guilty had he been better advised of the certainty of
deportation and granted post-conviction relief, vacating the
guilty plea previously entered. The Appellate Division affirmed
the judgment.
The PCR court was mistaken in giving “the benefit of the
doubt” to Goulbourne that he would not have pled guilty, for
that is not the correct standard in a PCR setting. 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 Echols, supra, 199 N.J. at 357; Goodwin,
supra, 173 N.J. at 593. Upon our review of the record before
the PCR court, as well as the transcripts of Judge Marmo’s
extensive questioning of Goulbourne when taking Goulbourne’s
plea, we are more than satisfied that Goulbourne failed to carry his required burden of proof.
Defendant was observed by police officers as he engaged in
two drug transactions on a Paterson street within one thousand
feet of a public school and within five hundred feet of a public
library. The buyers were apprehended immediately following each
transaction, and marijuana was found in their possession. When
the officers approached Goulbourne, he ran into a nearby
apartment and was taken into custody there, where currency and
bagged marijuana were in plain view. Before he was indicted, he was offered a plea deal and turned it down. After indictment,
and on the day trial was to begin, Goulbourne decided to accept the plea deal, and Judge Marmo questioned him about the agreement. As the record created that day reveals, both the
judge and counsel clearly informed defendant that his plea could result in deportation consequences and that immigration officials could deport him. We see no deficiency on this record, a point made evident on review of the transcript, which details the following
colloquy:
Judge: Okay. Now let me ask you this.
Are you a citizen of the United States?
Defendant: No, sir.
Judge: You’re not. Where were you
born?
Defendant: I was born in Kingston, Jamaica.
Judge: Jamaica. How long have you been
in the U.S.?
Defendant: Been in the U.S. 11 years now.
Judge: All right. I’m sure you
understand that by reason of this conviction, you could be deported to Jamaica –
Defendant: I heard.
Judge: – to your country? You
understand that?
Defendant: Yes, sir.
Judge: 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?
Defendant: Yes, sir.
Judge: Okay. All right. Any other
questions about your plea
agreement? I have some other
questions I want to go over with
you.
Defendant: No.
Defense counsel also discussed with defendant the deportation consequences of his guilty plea:
Counsel: Okay. Are there any questions
that you want to ask the Judge and myself about your guilty plea?
Defendant: Meaning what like?
Counsel: Are there any other questions
that you want to ask –
Defendant: No.
Counsel: – the Court?
Defendant: No, I don’t.
Counsel: 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?
Defendant: Yes.
Counsel: That won’t take place until
after you finish your jail time.
Do you understand?
Defendant: Yes.
* * *
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?
Defendant: Yes, sir.
[Emphasis added.]
Although Goulbourne had no questions about the deportation
consequences of his plea, he had a great many questions
concerning why he could not get the pre-indictment plea offer of
probation with 364 days in county jail, but instead now had
before him a plea offer that required him to serve fifteen
months without parole. After it was repeatedly explained that
the pre-indictment offer was no longer available and Goulbourne
persisted in requesting the pre-indictment offer, the court
stated that it believed further discussion was fruitless and
indicated that it would impanel a jury for trial. Following a
short recess, defendant entered a guilty plea to the only plea
offer on the table and provided a factual basis for that plea.
He was sentenced in accordance with the plea agreement.
During his PCR evidentiary hearing, Goulbourne admitted
that he was guilty of the charges and stated that his initial
trial concerns were not about guilt but about how long a time he
would serve in jail. Indeed, he admitted that he recognized
deportation was a possibility but that it was not his concern at
the time. His priority was minimizing the amount of jail time,
which certainly is reflected in the transcript of his
discussions with Judge Marmo. On this record, looking ahead to
the prejudice prong, we find no evidence of prejudice, as
Goulbourne’s attention was clearly elsewhere.
Goulbourne testified during his evidentiary hearing on PCR
that counsel and the court told him that there “may” be
deportation consequences as a result of his guilty plea but that
no one told him with “guaranteed certainty” that he would be
deported. He also testified that he did not consult an
immigration lawyer prior to his guilty plea and that no one told
him at that time that he should seek the advice of an
immigration attorney. As already noted, we find that, on this
record, there is no demonstration of prejudice here because the
record at the time of the plea and sentencing evidences that
immigration consequences would not have changed anything for
defendant at the time.
As for the specific deficiencies of counsel asserted, we
find that the record is a far cry from what was presented in
Nuñez-Valdéz, where the defendant was materially interested in
immigration consequences, and initially was assured,
inaccurately, that his plea to drug charges would not result in
such consequences, and substitute counsel, against that
backdrop, only amended the advice to state that deportation was
a possibility. Here, defendant did not receive wrong advice
under existing law at the time. The immigration consequences
were emphasized as real and beyond the control of the criminal
justice system, and, most importantly, defendant’s colloquy
makes abundantly clear that the most important concern for him was the amount of time he would spend in prison. He emphasized in that specific context the lesser amount of time in the
earlier pre-indictment offer, the number of children he had, including a recently born infant, and even his wife’s recent health problems that caused him concern about his ability to care for her during a period of imprisonment.
Because Padilla is not entitled to retroactive application,
we find no attorney violation of Padilla’s requirements in this
matter. As for Nuñez-Valdéz, we find in this record no
deficiency like what occurred in that matter, and we further
conclude that Goulbourne has not demonstrated prejudice on this
record.
VI.
As Padilla made clear, attorneys now have specific duties as to how they must advise pleading noncitizen criminal
defendants, depending on the certainty of immigration
consequences flowing from the plea. The Supreme Court
articulated 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 ___, 130 S. Ct. at 1483, 176 L. Ed. 2d at 296.]
To the extent that Padilla holds that that an attorney must
tell a client when removal is mandatory — when consequences are
certain — it represents a qualitatively new rule of expected
attorney performance under Strickland. Prospectively from the
time when the decision in Padilla was announced, counsel’s
failure to point out to a noncitizen client that he or she is
pleading to a mandatorily removable offense will be viewed as
deficient performance of counsel; affirmative advice must be
conveyed as part of the counseling provided when a client enters
a guilty plea to a state offense that equates to an aggravated
felony, triggering eligibility for mandated removal. As
highlighted by Padilla and in this opinion, due to changes to
immigration laws, “if a noncitizen has committed a removable
offense after the 1996 effective date of [the INA] amendments,
his removal is practically inevitable . . . .” Padilla, supra,
559 U.S. at ___, 130 S. Ct. at 1480, 176 L. Ed. 2d at 292. It is thus particularly important now for criminal defense
attorneys to be able to, at a minimum, secure accurate advice for their clients on whether a guilty plea to certain crimes will render them mandatorily removable.
To that end, numerous resources are available to help
attorneys determine whether a state crime constitutes an
aggravated felony under federal law. The Immigration Defense
Project, for instance, provides online charts, freely available
to the public, that assist in making that determination. See
Immigrant Defense Project, Quick Reference Chart for Determining
the Immigration Consequences of Selected New Jersey Criminal
Offenses (June 6, 2005), http://immigrantdefenseproject.org/wp-
content/uploads/2011/02/NJ-Chart.pdf. And, as we were informed
at oral argument in this matter, phone calls to attorneys at
non-profit organizations, such as the Immigration and Legal
Referral Pro Bono Project at the Law School at Rutgers-Camden,
are yet another avenue through which criminal defense attorneys
with noncitizen clients can gain information about aggravated
felonies.
Moreover, even if removal is not “mandated” in the sense
that a state offense is not identified on published lists of
offenses equating to aggravated felonies or like mandatorily
removable offenses, counsel must highlight for noncitizen
clients that entering a guilty plea will place them at risk of
removal and that they may seek to obtain counseling on potential immigration consequences in order that their guilty plea be
accepted as knowing and voluntary. We will look to transcripts of plea colloquies for evidence that these points were placed on the record with a noncitizen defendant prior to a court’s
acceptance, and entry, of a guilty plea.
That said, as held in Nuñez-Valdéz, if counsel provided
false information, or inaccurate and affirmatively misleading
advice about removal consequences of a guilty plea, then
deficiency may exist for purposes of establishing, at present,
a prima facie ineffective assistance of counsel claim entitling
defendant to an evidentiary hearing in a PCR proceeding. In
determining eligibility for an evidentiary hearing in such
circumstances, like others where a court may be confronted with
competing affidavits between a client and counsel, we trust that
courts will evaluate the sufficiency of a belated claim of
misadvice before granting a hearing. In so doing, the court
should examine the transcripts of the plea colloquy and
sentencing hearing, as we have done in the present matters, to
determine if either transcript provides support for an after-
the-fact assertion that counsel failed to provide advice
affirmatively sought by a client as to the immigration
consequences of entering into a specific guilty plea, sufficient
to justify an evidentiary hearing on the PCR claim.
VII.
The judgment of the Appellate Division in State v. Gaitan,
419 N.J. Super. 365 (2011), is reversed and the judgment of the
Appellate Division in State v. Goulbourne also is reversed.
Both matters are remanded for disposition consistent with this
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,
v.
FRENSEL GAITAN,
Defendant-Respondent.
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
ROHAN GOULBOURNE,
Defendant-Respondent.
JUSTICE ALBIN, dissenting.
Any minimally adequate criminal defense attorney in this
State has known for more than a decade that a noncitizen client
who is pleading guilty to a deportable offense must be advised
of the immigration consequences of that plea. Therefore, the
defense bar will be surprised to learn that — according to the
majority — not until 2010 would attorneys “have known or
expected . . . that they [must] advise noncitizen clients of the
risk of immigration consequences” of a guilty plea. Ante at 40-
41. The majority reaches this clearly erroneous conclusion by
asserting that Padilla v. Kentucky, 559 U.S. ___, 130 S. Ct.
1473, 176 L. Ed. 2d 284 (2010), placed a novel obligation on
defense attorneys to provide advice — even minimal advice — to
a client facing banishment as the result of pleading guilty to a
deportable offense. Ante at 42. On that basis, the majority
denies post-conviction relief to Frensel Gaitan, who was never
advised by his attorney when he pled guilty to a drug offense in
2005 that he would or even might be deported from this country
as a consequence of his guilty plea to an “aggravated felony.”1
The majority’s decision cannot be reconciled with the very
language of Padilla, which held that “[f]or at least the past 15
years, professional norms have generally imposed an obligation
on counsel to provide advice on the deportation consequences of
a client’s plea.” 559 U.S. at ___, 130 S. Ct. at 1485, 176 L.
Ed. 2d at 297-98. The majority’s decision is in direct conflict
with the holding of the Third Circuit Court of Appeals in United
States v. Orocio, 645 F.3d 630, 641 (2011), which concluded that
1 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.
“Padilla followed directly from . . . long-established
professional norms” and therefore was an “‘old rule’ . . .
retroactively applicable on collateral review.” The majority’s
decision turns a blind eye to American Bar Association Standard
14-3.2(f), adopted in 1999, which required defense attorneys to
inform noncitizen clients of the immigration consequences of a
guilty plea. The majority’s decision ignores the reality that
before 2005, through seminars and legal periodicals, defense
attorneys in this State were instructed to advise noncitizen
clients that a guilty plea to particular offenses carried the
risk of almost certain deportation. Moreover, the majority’s
decision is inconsistent with the logic of legal precedents in
this State. See State v. Nunez-Valdez, 200 N.J. 129, 139-42
(2009); see also State v. Vieira, 334 N.J. Super. 681, 688 (Law
Div. 2000). Even the judiciary’s plea form, as adopted in 1988,
acknowledged that a defendant’s guilty plea might expose him to
deportation.
Despite all of the above, the majority maintains that
before the Padilla decision in 2010, defense counsel rendered
effective representation under both our Federal and State
Constitutions if they gave absolutely no advice to a client
about the almost certain deportation consequences of a guilty
plea. The majority’s ruling will lead to state courts denying
post-conviction relief in cases in which federal district
courts, relying on the Third Circuit’s decision in Orocio, will grant habeas corpus relief. The majority opinion may lighten the caseload of our court system, but only by achieving a result that is forbidden by the Sixth Amendment of the United States Constitution and by Article I, Paragraph 10 of the New Jersey Constitution. I therefore respectfully dissent.
I.
A.
Our courts have long held that both the Sixth Amendment and
Article I, Paragraph 10 of our State Constitution guarantee the
accused the “effective” assistance of counsel. See State v.
Savage, 120 N.J. 594, 612 (1990); State v. Fritz, 105 N.J. 42,
58 (1987). An attorney does not render constitutionally
effective assistance if his “representation [falls] below an
objective standard of reasonableness.” Strickland v.
Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064, 80 L.
Ed. 2d 674, 693 (1984); see Fritz, supra, 105 N.J. at 58
(adopting Strickland standard under New Jersey Constitution).2
2 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 of attorney performance remains simply
reasonableness under prevailing professional norms.”
Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2065, 80 L.
Ed. 2d at 694 (emphasis added). The reasonableness of an
attorney’s representation may be judged by looking to prevailing
norms as reflected in American Bar Association standards and
other like guides. Ibid. Thus, the reasonableness of an
attorney’s performance “is necessarily linked to the practice
and expectations of the legal community.” Padilla, supra, 559
U.S. at ___, 130 S. Ct. at 1482, 176 L. Ed. 2d at 294.
Significant to this case, the Strickland standard “applies to
advice respecting a guilty plea.” Id. at ___, 130 S. Ct. at
1485 n.12, 176 L. Ed. 2d at 297 (citing Hill v. Lockhart, 474
U.S. 52, 58, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985)).
In determining whether Gaitan’s attorney rendered
constitutionally ineffective representation, we must be guided
by the prevailing professional norms governing attorneys in 2005
– the time when Gaitan, with the assistance of counsel, entered
a guilty plea to a drug offense. In 2005, the prevailing
professional norms required counsel to advise a client entering
a guilty plea to an aggravated felony that he was facing
probable, if not mandatory, deportation. That point is made
clear in Padilla.
B.
In 2010, when the United States Supreme Court announced in
Padilla that “counsel must inform her client whether his plea
carries a risk of deportation,” id. at ___, 130 S. Ct. at 1486,
176 L. Ed. 2d at 299, it was not establishing a new rule, but
rather acknowledging a well-recognized professional norm that
existed at the time that Padilla entered his guilty plea in
2002. Indeed, the Court asserted that “[i]t is quintessentially
the duty of counsel to provide [a criminal] client with
available advice” on deportation issues. Id. at ___, 130 S. Ct.
at 1484, 176 L. Ed. 2d at 297. The Court discussed the sea
change in federal immigration law in 1996 when Congress expanded
the class of offenses to which mandatory deportation applied.
Id. at ___, 130 S. Ct. at 1480, 176 L. Ed. 2d at 292-93. The
Court emphasized that the “severity of deportation — ‘the
equivalent of banishment or exile,’ — only underscores how
critical it is for counsel to inform her noncitizen client that
he faces a risk of deportation.” Id. at ___, 130 S. Ct. at
1486, 176 L. Ed. 2d at 298-99 (internal citation omitted).
Further, the Court observed that “[t]he weight of
prevailing professional norms supports the view that counsel
must advise her [noncitizen] client regarding the risk of
deportation” by pleading guilty to certain offenses. Id. at
___, 130 S. Ct. at 1482, 176 L. Ed. 2d at 294-95 (citing Nat’l
Legal Aid & Defender Ass’n, Performance Guidelines for Criminal
Representation § 6.2 (1995); G. Nicholas Herman, Plea Bargaining
§ 3.03 at 20-21 (1997); Gabriel J. Chin & Richard W. Holmes,
Jr., Effective Assistance of Counsel and the Consequences of
Guilty Pleas, 87 Cornell L. Rev. 697, 713-18 (2002); Arthur W.
Campbell, Law of Sentencing § 13:23 at 555, 560 (3d ed. 2004); 2
Dep’t of Justice, Office of Justice Programs, Compendium of
Standards for Indigent Defense Systems, Standards for Attorney
Performance, at D10, H8-H9, J8 (2000); ABA Standards for
Criminal Justice, Prosecution Function and Defense Function 4-
5.1(a) at 197 (3d ed. 1993); ABA Standards for Criminal Justice,
Pleas of Guilty 14-3.2(f) at 116 (3d ed. 1999)). Those
established professional norms all preceded Gaitan’s 2005 guilty
plea. The Court also recognized 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 noncitizen clients.” Padilla,
supra, 559 U.S. at ___, 130 S. Ct. at 1482, 176 L. Ed. 2d at 295
(internal quotation 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
years before the Padilla decision, an attorney’s silence was
“fundamentally at odds with the critical obligation of counsel
to advise the client of the advantages and disadvantages of a
plea agreement.” Id. at ___, 130 S. Ct. at 1484, 1485, 176 L.
Ed. 2d at 296, 297-98 (internal quotation marks omitted).
Justice Alito concurred with the five-person majority,
differing only on the nature and extent of advice that is
required of counsel. He concluded that “[w]hen a criminal
defense attorney is aware that a client is an alien, the
attorney should advise the client that a criminal conviction may
have adverse consequences under the immigration laws and that
the client should consult an immigration specialist if the
client wants advice on that subject.” Id. at ___, 130 S. Ct. at
1494, 176 L. Ed. 2d at 307 (Alito, J., concurring). Thus,
“silence alone is not enough to satisfy counsel’s duty to assist
the [noncitizen] client” in accordance with the Sixth Amendment.
Ibid. Indeed, Justice Alito observed that “any competent
criminal defense attorney should appreciate the extraordinary
importance 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 whether to enter a guilty plea.” Ibid. The
majority and concurrence agreed on one essential point — an attorney does not fulfill his constitutional obligation by complete silence.
Because the majority holds that criminal defense attorneys
were not required to give affirmative advice on deportation
consequences until Padilla, the majority obviously has concluded that the United States Supreme Court established the now
prevailing professional norm in 2010. But if that were the
case, then had Padilla never been appealed to the United States
Supreme Court, defense attorneys even today could remain silent
about the dire immigration consequences of a guilty plea without offending professional norms. However, the bar does not await
pronouncements from the United States Supreme Court before
establishing minimally acceptable codes governing the
professional conduct of attorneys.
C.
Significantly, the Third Circuit Court of Appeals in United
States v. Orocio, came to the unremarkable conclusion that
Padilla retroactively applied to the 2004 guilty plea entered in
that case. 645 F.3d at 639-41. The Third Circuit held that
“Padilla broke no new ground in holding the duty to consult also
extended to counsel’s obligation to advise the defendant of the
immigration consequences of a guilty plea and did not yield[] a
result so novel that it forge[d] a new rule.” Id. at 639-40
(internal quotation marks omitted). Thus, “[w]hen Mr. Orocio
pled guilty, it was ‘hardly novel’ for counsel to provide advice
to defendants at the plea stage concerning the immigration
consequences of a guilty plea, undoubtedly an ‘important
decision’ for a defendant.” Id. at 639. “[B]ecause Padilla
followed directly from Strickland and long-established
professional norms,” the circuit court found it to be an “old rule” and therefore retroactively applicable to Orocio on
collateral review. Id. at 641.
The majority rightly indicates that the federal circuit
courts of appeal have split on the issue of the retroactivity of 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 301-
10, 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 F.3d 684, 689 (7th Cir. 2011);
interpretations among courts about the retroactive effect of
Padilla indicate that Padilla enunciated a new rule. However, a
new rule of law is not born merely because some jurisdictions
have clearly misconstrued a mandate of the United States Supreme
Court.
The majority has adopted the reasoning of the Seventh
Circuit in Chaidez v. United States, 655 F.3d 684, 689 (7th Cir.
2011) — and rejected that of the Third Circuit — in denying
application of Padilla to defendants seeking post-conviction
relief for violation of the Sixth Amendment right to effective
assistance of counsel. Chaidez purports that Padilla
established a new rule. Id. at 686. For the reasons expressed
in this opinion, I believe that the Third Circuit has come to
the correct conclusion. Concededly, the New Jersey Supreme
Court is not bound to follow decisions of the Third Circuit with
which it disagrees. See Dewey v. R.J. Reynolds Tobacco Co., 121
N.J. 69, 79-80 (1990). However, the federal district court
judges in the District of New Jersey will follow the precedents
of the Third Circuit, not this Court. The result will be that
in cases in which the failure to advise a client of the
deportation consequences of a plea led to a defendant mistakenly
pleading guilty, state court judges will deny post-conviction
United States v. Chang Hong, No. 10-6294, slip op. at 13-14 (10th Cir. Aug. 30, 2011).
relief only to have their decisions overridden on habeas corpus
review. On habeas corpus, the federal district courts will not
consider themselves bound by an erroneous interpretation of
Padilla by the New Jersey Supreme Court. This will not be the
first time that we have been faced with the consequences of
mutually conflicting decisions by the Third Circuit and this
Court.5
D.
Beyond Padilla and Orocio, there is much other evidence
indicating the professional norms applicable to defense
attorneys representing noncitizen clients in 2005. Before the
Gaitan plea, New Jersey attorneys were informed at seminars and
in legal publications about their professional obligation to
advise a noncitizen client of the deportation consequences of a
guilty plea.
5 In Humanik v. Beyer, 871 F.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 due-
process 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 an article
reporting on “a recent seminar in Newark sponsored by the state
Office of the Public Defender and the New Jersey Association of
Criminal Defense Lawyers,” during which lawyers were warned that
they “had better know the ins and outs of how highly detailed
immigration law might be hanging menacingly over some of their
clients’ heads.” MichaelAnn Knotts, NJSBA Annual Meeting
Preview, N.J.L.J., May 5, 2003, at A6. Experts in the field of
criminal law stressed that “[f]ailure to recognize the potential
consequences of a criminal disposition involving an immigrant
and so informing that person may constitute a violation of
Standard 14-3.2(f) of the American Bar Association’s Standards
for Criminal Justice Pleas of Guilty.” Ibid. Those attending
the seminar — and reading the Law Journal — were told that
they were obliged to discuss the immigration consequences of a
plea with their clients. Ibid.
The views expressed at the seminar and in the New Jersey
Law Journal article were not at the cutting edge or in any way
novel. They merely reflected the prevailing professional norms
of the time. See Jim Edwards, Avoiding a Plea That’s No
Bargain; Ignorance of the Immigration Effect of a Criminal
Conviction Can Get a Noncitizen Client Deported Fast, With
Little or No Relief Available, N.J.L.J., September 23, 2002, at
19 (“For aliens, even those legally in the United States,
conviction-triggered deportation proceedings are far more
serious than a criminal record or a spell in prison.”); Robert
Frank, Immigration Consequences of Criminal Acts, New Jersey
Lawyer, February 2005, at 25 (“To adequately represent the alien
in criminal proceedings, it is essential to thoroughly
understand the impact that the crimes charged, the sentence
imposed and the resolution of the proceeding will have on the
alien’s status.”); cf. Laurie L. Levenson, Representing Aliens,
N.J.L.J., May 17, 1999, at 37 (“Defense counsel who represent clients who have either violated the immigration laws or whose convictions affect their immigration status have added
responsibilities in providing such representation.”).
E.
Our State’s case law also indicates that, before 2005,
defense attorneys were on notice of their obligation to advise a
noncitizen client of the deportation consequences of a guilty
plea. In State v. Vieira, 334 N.J. Super. 681, 688 (Law Div.
2000), a respected trial court judge wrote that an attorney’s
representation “is constitutionally deficient if the attorney
does not address the issue of deportation with the [noncitizen]
defendant and the defendant is not aware of the risk of
deportation.”
State v. Nunez-Valdez, 200 N.J. 129 (2009), also lends
strong support for the proposition that professional norms in
2005 required counsel to advise a client of the immigration
consequences of a plea. In 1998, the defendant in Nunez-Valdez
pled guilty to the fourth-degree crime of criminal sexual
contact and was sentenced to a five-year probationary term. Id.
at 132. As a result of his guilty plea, the defendant was
deported to the Dominican Republic. Ibid. We granted the
defendant post-conviction relief because his attorneys provided
him with “misleading or false information about immigration
consequences” of his guilty plea. Id. at 142. In particular,
we found that the misinformation denied the defendant his right
to effective assistance of counsel under the New Jersey
Constitution. Id. at 141-43.
We did not rest our analysis on whether deportation is a
penal or collateral consequence of a criminal conviction, but
simply on whether counsel rendered ineffective assistance by
“provid[ing] misleading, material information that results in an
uninformed plea.” Id. at 139-40. We looked at the federal
immigration statutes in effect in 1998 and determined that the
defendant pled to an offense that constituted an aggravated
felony under federal law requiring mandatory deportation. Id.
at 140. In concluding that counsel was not permitted to
misinform his client about immigration consequences, we in no
way suggested that the then-professional norms would have
excused counsel from saying nothing at all on the subject. From
the viewpoint of the defendant in Nunez-Valdez, he would have
been just as disadvantaged if his attorneys remained silent
about the deportation consequences of his guilty plea.
That is why the Court in Padilla did not confine its ruling
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.]
F.
Another clear indication that professional norms in 2005
required counsel to provide advice on immigration consequences
is the court-mandated plea form that counsel and defendants have
been completing since 1988 in New Jersey. Beginning on January
5, 1988, a defendant, with the assistance of counsel, was
required to circle “Yes,” “No,” or “N/A” to the following
question on the written plea form submitted to the trial court:
“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?” See Administrative Directive # 1-1988 (Jan. 15, 1988).6
Despite this 1988 administrative directive, the majority
declares that professional norms entitled counsel to remain
silent on the immigration consequences of a guilty plea, except
when the defendant appears before the court to answer the sole
immigration question on the plea form. Surely, defense counsel
has a greater obligation than the court to make certain the
accused is informed of the material consequences of a plea of
guilty.
II.
For the period before 2010, the majority insists on
perpetuating the absurd distinction condemned in Padilla. The
majority will allow claims for ineffective assistance of counsel
when an attorney misinformed a client about the deportation
consequences of a guilty plea and deny such claims when the
attorney provided no advice at all to a client who desperately
needed to know that his plea would result in banishment from his
home and separation from his family. The majority highlights
the fact that after the 1996 amendments to various immigration
laws the removal of a noncitizen who pleads guilty to certain
6 That question has been amended several times since 1988 to make
more clear that immigration consequences may flow from a plea of
guilty.
offenses “‘is practically inevitable.’” Ante at 25 (quoting
Padilla, supra, 559 U.S. at ___, 130 S. Ct. at 1480, 176 L. Ed.
2d at 292). With that reference to the 1996 amendments, the
majority concludes that it is “particularly important now for
criminal defense attorneys to be able to, at a minimum, secure
accurate advice for their clients on whether a guilty plea to
certain crimes will render them mandatorily removable.” Ante at
55 (emphasis added). But then why was it not important in 2005,
nine years after the effective date of the amendments, for a
noncitizen to receive advice about the immigration consequences
of a plea?
Padilla referred to the applicable constitutional standard guiding counsel in providing advice to a noncitizen on the
immigration consequences of a plea. It is not an overly onerous burden given the stakes. Padilla instructs that for Sixth
Amendment 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 ___, 130 S. Ct. at 1483, 176 L. Ed. 2d at 296.]
The overwhelming evidence presented here shows that this
quotation merely encapsulates the prevailing professional norms in 2005. An attorney not acting in accordance with those
professional norms was not acting reasonably in 2005.
III.
In 2005, Gaitan, a lawful permanent resident, pleaded
guilty to a deportable drug offense — an aggravated felony –
under the Immigration and Nationality Act. See 8 U.S.C.A. §§
1101(a)(43)(B), 1227(a)(2)(A)(iii). Gaitan averred in his
petition for post-conviction relief that his counsel failed to
advise him that any immigration consequences would result from
the conviction. Although Gaitan was sentenced to a five-year
probationary term, he was deported in 2008 as a consequence of
his conviction. Gaitan has alleged that his counsel was
constitutionally deficient under Strickland and Padilla.
I agree with the Appellate Division that Gaitan “was
entitled to an evidentiary hearing” to determine what, if any,
advice his attorney gave him “regarding his potential removal
from the country.” State v. Gaitan, 419 N.J. Super. 365, 370
(App. Div. 2011). However, even if a PCR court determined that
counsel was deficient in not providing advice on the immigration
consequences of the plea, Gaitan would still be required to show
that he would not have accepted the plea “but for counsel’s
unprofessional errors.” Strickland, supra, 466 U.S. at 694, 104
S. Ct. at 2068, 80 L. Ed. 2d at 698.7
IV.
In conclusion, contrary to the Sixth Amendment right to the
effective assistance of counsel, Strickland, and Padilla, for
cases involving noncitizens who entered guilty pleas before
2010, the majority opinion tolerates attorney performance that
falls well outside the wide range of acceptable professional
conduct. For those who entered guilty pleas before 2010 without
having a proper understanding of the deportation consequences
and who would not have pled guilty had they been adequately
informed, no remedy will be afforded in our State courts. But
based on Orocio, relief may be available on federal habeas
corpus review.
I believe that in 2005, based on the then-professional
norms, defense counsel had, at the very least, an obligation to
inform their noncitizen clients that a guilty plea carried the
risk of adverse immigration consequences, including deportation.
Accordingly, Padilla did not create a new constitutional rule
7 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 acknowledged that “reasonableness under prevailing professional norms” was the measure for determining whether an attorney’s performance was constitutionally deficient. See
Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. Because the majority wrongly denies Gaitan the retroactive application of Padilla, I respectfully dissent.
JUSTICE LONG joins in this opinion.
SUPREME COURT OF NEW JERSEY
NO. A-109
ON CERTIFICATION TO
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
FRENSEL GAITAN,
Defendant-Respondent.
SEPTEMBER TERM 2010
Appellate Division, Superior Court
DECIDED February 28, 2012
Chief Justice Rabner PRESIDING
OPINION BY Justice LaVecchia
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY Justice Albin
CHECKLIST REVERSE AND
REMAND
AFFIRM
CHIEF JUSTICE
RABNER
X
JUSTICE LONG X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE HOENS X
JUSTICE PATTERSON X
JUDGE WEFING (t/a) X
TOTALS 5 2
SUPREME COURT OF NEW JERSEY
NO. A-129
ON APPEAL FROM
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
ROHAN GOULBOURNE,
SEPTEMBER TERM 2010
Appellate Division, Superior Court
Defendant-Respondent.
DECIDED February 28, 2012
Chief Justice Rabner PRESIDING
OPINION BY Justice LaVecchia
CONCURRING/DISSENTING OPINION BY
DISSENTING OPINION BY Justice Albin
CHECKLIST REVERSE AND
REMAND
AFFIRM
CHIEF JUSTICE RABNER X
JUSTICE LONG X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE HOENS X
JUSTICE PATTERSON X
JUDGE WEFING (t/a) X