Opinion
DOCKET NO. A-2118-14T1
04-25-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. AHMED H. HUSEIN, a/k/a AHMAD HASAN HUSEIN, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief). John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez and Manahan. On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment Nos. 09-04-0843 and 09-09-1761. Joseph E. Krakora, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief). John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief). PER CURIUM
Defendant Ahmed Husein appeals from a Law Division order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. Following our review in light of the record and applicable law, we affirm.
The record discloses the following facts and procedural history. On November 13, 2008, defendant pled guilty in Bergen County to disorderly persons theft, N.J.S.A. 2C:20-3, pursuant to a plea agreement recommending probation and restitution. On April 27, 2009, a Bergen County Grand Jury returned an indictment charging defendant with third-degree attempted burglary, N.J.S.A. 2C:18-2 and N.J.S.A. 2C:5-1. In a separate Bergen County indictment filed September 29, 2009, defendant was charged with fourth-degree shoplifting, N.J.S.A. 2C:20-11(b)(1) (count one); and fourth-degree giving false information to a law enforcement officer, N.J.S.A. 2C:28-4 (count two).
On November 2, 2009, defendant pled guilty to the April 27, 2009 indictment, as well as count two of the September 29, 2009 indictment. The plea agreement recommended non-custodial probation and restitution. Subsection (b) of question seventeen on defendant's plea form inquired: "[d]o you understand that if you are not a United States citizen or national, you may be deported by virtue of your plea of guilty?" Defendant responded "[y]es[.]" Subsection (d) of the same question inquired: "[d]o you understand that you have the right to seek legal advice on your immigration status prior to entering a plea of guilty?" Defendant responded "[y]es[.]" The following exchange took place during the plea colloquy with the use of an Arabic interpreter:
The Court: And Mr. Husein, are you a United States citizen?
Defendant: Here, no.
The Court: Do you understand that these pleas could affect your status in this country?
Defendant: Yes.
The Court: And you understand that if you are not a United States citizen or national, that you could be deported as a result of the plea?
Defendant: I understand.
The Court: All right. Do you still wish to go ahead with the plea?
Defendant: I cannot remain in prison.
The Court: All right. So, in light of the possible consequences that immigration may view these convictions as an aggravated felony which could subject you to deportation, do you wish to proceed?
Defendant: I have no other choice.
The Court: All right. So you wish to proceed?
Defendant: Yes, I want to proceed.
Defendant was sentenced on December 11, 2009 to concurrent three-year terms of probation on the indictable offenses, and restitution in the amount of $428 on the burglary conviction. He was also sentenced to a concurrent one-year term of probation on the disorderly person conviction, as well as $562.02 in restitution.
On or about June 3, 2013, defendant filed a PCR petition. On August 8, 2014, appointed counsel appeared on behalf of defendant for oral argument on the PCR petition. Defendant argued he was provided ineffective assistance of trial counsel. Specifically, he claimed his attorney on the indictable offenses and sentencing essentially forced him to take the plea despite his innocence, and also offered incorrect legal advice regarding the potential deportation consequences of his plea. The PCR judge, who was also the plea judge on the indictable offenses as well as the sentencing judge, denied defendant's petition and declined to hold an evidentiary hearing. The judge found defendant was not credible and rejected defendant's Padilla argument. The judge also noted that defendant was the one who wanted to go forward with the plea, and that he received a favorable plea deal. This appeal followed.
Defendant raises the following argument on appeal:
POINT I
DEFENDANT WAS ENTITLED TO AN [EVIDENTIARY] HEARING ON HIS CLAIM THAT TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO PROPERLY ADVISE HIM ON THE DEPORTATION CONSEQUENCES OF HIS GUILTY PLEA.
"Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). Under Rule 3:22-2(a), a criminal defendant is entitled to post-conviction relief if there was a "[s]ubstantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey[.]" "A petitioner must establish the right to such relief by a preponderance of the credible evidence." Preciose, supra, 129 N.J. at 459 (citations omitted). "To sustain that burden, specific facts" that "provide the court with an adequate basis on which to rest its decision[]" must be articulated. State v. Mitchell, 126 N.J. 565, 579 (1992).
Claims of constitutionally ineffective assistance of counsel are well suited for post-conviction review. See R. 3:22-4(a)(2); Preciose, supra, 129 N.J. at 460. In determining whether a defendant is entitled to relief on the basis of ineffective assistance of counsel, New Jersey courts apply the two-prong test articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984), and United States v. Cronic, 466 U.S. 648, 658-60, 104 S. Ct. 2039, 2046-47, 80 L. Ed. 2d 657, 667-68 (1984). Preciose, supra, 129 N.J. at 463; State v. Fritz, 105 N.J. 42, 49-50 (1987).
Under the first prong of the Strickland test, a "defendant must show that [defense] counsel's performance was deficient." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Under the second prong, a defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
The United States Supreme Court has applied these principles to a criminal defense attorney's representation of an accused in connection with a plea negotiation. Lafler v. Cooper, 566 U.S. ___, ___, 132 S. Ct. 1376, 1384-85, 182 L. Ed. 2d 398, 406-07 (2012); Missouri v. Frye, 566 U.S. ___, ___, 132 S. Ct. 1399, 1407-08, 182 L. Ed. 2d 379, 390 (2012). A defendant must demonstrate with "reasonable probability" that the result would have been different had he received proper advice from his trial attorney. Lafler, supra, 566 U.S. at ___, 132 S. Ct. at 1384, 182 L. Ed. 2d at 407 (citing Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).
Our review of an order granting or denying PCR contains consideration of mixed questions of law and fact. State v. Harris, 181 N.J. 391, 415-16 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). We defer to a PCR court's factual findings and will uphold those findings that are "supported by sufficient credible evidence in the record." State v. Nash, 212 N.J. 518, 540 (2013). However, a PCR court's interpretations of law are provided no deference and are reviewed de novo. Id. at 540-41.
In State v. Nuñez-Valdéz, 200 N.J. 129, 143 (2009), the Court held a defendant could show ineffective assistance of counsel by proving "inaccurate information from counsel concerning the deportation consequences of his plea[,]" resulting in his guilty plea. Counsel must avoid "false or misleading information[,]" id. at 138, and is required to inform a defendant entering a guilty plea, regarding the relevant mandatory deportation law if it is "succinct, clear, and explicit[.]" Padilla, supra, 559 U.S. at 368, 130 S. Ct. at 1483, 176 L. Ed. 2d at 295. The Court made clear counsel's "failure to advise a noncitizen client that a guilty plea will lead to mandatory deportation deprives the client of the effective assistance of counsel guaranteed by the Sixth Amendment." State v. Barros, 425 N.J. Super. 329, 331 (App. Div. 2012) (citing Padilla, supra, 559 U.S. at 369, 130 S. Ct. at 1483, 176 L. Ed. 2d at 296).
Here, there is nothing to suggest that counsel's performance was so deficient as to warrant reversal. Defendant acknowledged he was not a United States citizen during the plea colloquy, and also acknowledged notice of the potential deportation consequences of his guilty plea both during the plea colloquy and in the plea form. Defendant stated that he reviewed the plea with counsel.
The record lacks any facts to support a finding that the performance by defendant's trial counsel was deficient, i.e., that counsel failed to offer any advice or that she offered "affirmative misadvice." See State v. Gaitan, 209 N.J. 339, 356 (2012) (citing Padilla, supra, 559 U.S. at 369-370, 130 S. Ct. at 1484, 176 L. Ed. 2d at 296), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013). Moreover, defendant's certification in support of his petition lacks any substantive factual support and only offers self-serving assertions and bare allegations. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) ("[A] petitioner must do more than make bald assertions that he was denied the effective assistance of counsel."), certif. denied, 162 N.J. 199 (1999). Defendant has failed to offer any specific instances, acts, or omissions constituting ineffective assistance of counsel. See State v. Jack, 144 N.J. 240, 249 (1996). As such, defendant has failed to make out a prima facie case of ineffective assistance of counsel. See Preciose, supra, 129 N.J. at 463.
Notwithstanding our determination as to defendant's failure to establish that counsel's performance was deficient, we briefly address the second Strickland prong. In this vein and after review of the record, we conclude that defendant has also failed to demonstrate how any alleged deficiency resulted in a prejudice that, "but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698; Fritz, supra, 105 N.J. at 52 (citation omitted).
Finally, we reject defendant's argument that the court erred in denying his petition without an evidentiary hearing. An evidentiary hearing is required where the defendant has shown a prima facie case and the facts on which he relies are not already of record. Pressler & Verniero, Current N.J. Court Rules, comment 2 on R. 3:22-10 (2016). The mere raising of a claim for PCR does not entitle defendant to an evidentiary hearing. Cummings, supra, 321 N.J. Super. at 170. As defendant failed to establish a prima facie case of ineffective assistance of counsel, no evidentiary hearing was required.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
See Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010).