New Jersey Post-Conviction Relief Applications Lawyers
A landmark decision by the United States Supreme Court, Padilla vs. Kentucky, 130 S. Ct. 1473 (2010), underscores that the immigration consequences of a criminal conviction are not “collateral,” and that criminal defense attorneys are obligated to provide affirmative, accurate advice concerning the potential immigration ramifications of a potential plea if it will unambiguously lead to deportation. If you are facing deportation/removal in New Jersey as a result of having pled guilty to a crime that carried immigration consequences you were not made aware of, you may be able to petition the criminal court to withdraw your guilty plea. Especially in cases where a guilty plea would clearly lead to removability, a failure of criminal defense counsel to advise a foreign born defendant of the immigration repercussions constitutes ineffective assistance of counsel and a violation of a defendant’s constitutional rights under the Sixth Amendment.
Under a two-prong test as set forth in Strickland v. Washington, 466 U.S. 668 (1984), the Court must determine:
- Whether counsel’s performance was “deficient,” and
- Whether that deficient performance prejudiced the defendant
In other words, it must be shown that not only did the attorney’s performance fall below acceptable professional norms, but also that a decision to reject the plea agreement would have been reasonable under the circumstances, taking into consideration the potential immigration consequences.
In 2017, the U.S. Supreme Court addressed the second Strickland prong in Lee v. United States, holding that Mr. Lee was able to establish prejudice because deportation was foremost in his mind and he would have chosen to go to trial, but for his attorney’s erroneous advice, even though his chances of winning were remote. Within the State of New Jersey, the contours and reach of the post-conviction relief applications are further defined by State v. Nunez-Valdez, 975 A.2d 418 (NJ 2009) regarding affirmative misinformation; State vs. Gaitan, 37 A.3d 1089 (NJ 2012), and the Supreme Court’s 2013 decision in Chaidez v. U.S. regarding retroactivity.
Preparing For Your Appointment
Prior to your appointment, it is advisable for you to secure the following documents in order for our office to consult with you:
- State Police and/or FBI “rap sheet”
- Any and all paperwork from your criminal case including charging papers, police reports, certified dispositions, judgment(s) of conviction(s), pre-sentence reports, and, if possible, a transcript of your hearing(s).
- Any and all “discovery” paperwork forwarded by the Prosecutor’s Office to your criminal defense attorney.
Although these documents are not necessarily required for the initial consultation, they do expedite the process of enabling us to determine whether we can help you. If you do retain our firm for an in-depth analysis, we will attempt to secure the relevant documents and information on your behalf.
The practice of Post-Conviction Relief (PCRs) applications and determining the immigration consequences of criminal convictions is highly specialized and requires a unique understanding of the interplay between immigration and criminal law. Attorneys Paris Lee and Michele Alcalde (Of Counsel) have more than a decade of experience practicing criminal defense within the State of New Jersey and bring a seasoned perspective to your matter. For further information, please contact our office to schedule a confidential and thorough evaluation of your case. Please note that due to the extremely complex nature of the service involved, our PCR consultations are not subject to our normal consultation fee schedule.