28 Feb 2012
New Jersey Supreme Court, 5-2, Rules Padilla Not Retroactive: Gaitan & Gouldbourne
Majority nutshell: "We ... 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. ... 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."
Blistering dissent nutshell: "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. ... 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 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. ... 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."