Lack Of Retroactivity Prevents Defendant From Getting Conviction Vacated

The Superior Court of New Jersey, Appellate Division, once again addressed the issue of whether warnings given by an attorney to his client, a criminal defendant who could be potentially subject to deportation, were sufficient.  In this instance, an Ecuadorian citizen was arrested for four counts of drug offenses. His attorney negotiated a plea with the prosecutor under which he would plead to one of those counts and receive a three-year sentence. He would become eligible for parole in ninth months provided conditions so warranted.

On July 14, 2008 the defendant, Romeo Gamarra, tendered his plea and received the negotiated sentence. During the hearing in which he was sentenced, he also tendered a signed form in which he answered “yes to the question of “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?”  At first he marked “N/A for “not applicable before marking that out and changing his response to “yes. He did not appeal the conviction within the time period required under New Jersey law.

Two cases, State v. Nuñez-Valdéz, 200 N.J. 129 (2009) and Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), which followed Mr. Gamarra’s conviction in 2009 and 2010 respectively required that counsel for criminal defendants must apprise their clients that they could subject to deportation if they plead guilty. It is clear that going forward criminal attorneys must ensure their clients understand this possibility. But Mr. Gamarra’s case preceded these rulings. Years after he pled guilty he sought post-conviction relief because his attorney had not notified him that he would absolutely be deported if he pled guilty to certain criminal offenses. Mr. Gamarra argued his attorney provided ineffective assistance of counsel due to this failure and, for such reason, his conviction should be vacated.

But the Appellate Division court refused to accept his claim. They indicated that the ruling in Padilla cannot be applied retroactively to activities of a criminal defendant’s counsel because the holding set forth a new rule not in effect in 2008.  Also the failure of Mr. Gamarra to seek direct review of his conviction within thirty days of its disposition rendered his petition for post-conviction relief fatally defective. Such petitions should only be considered if the defendant can make a prima facie case that counsel was ineffective. Considering Mr. Gamarra did agree that he understood he was potentially subject to deportation when he pled guilty, he was unable to make the kind of prima facie case which would warrant review long after the time for a direct appeal had expired.

At The Shulman Law Group, LLC our immigration lawyers have experience with those who have been charged or convicted of a crime, and are subsequently placed in deportation or removal proceedings.  Our lawyers are constantly seeking to find creative solutions to our clients’ deportation problems by staying abreast of new laws and regulations in addition to federal court decisions affecting immigrants.