N.C. COURT OF APPEALS DECISION IN STATE V. ALSHAIF
On March 31, 2010, the United States Supreme Court ruled in Padilla v. Kentucky, 130 S. Ct. 1473 (2010) that a criminal defense attorney must advise his client of the immigration consequences of a guilty plea to a criminal offense. The Supreme Court had long held that Due Process requires that any guilty plea must be intelligently and voluntarily made, and that the defendant must be aware of the nature of the charges against him. Boykin v. Alabama, 395 N.C. 238 (1969). North Carolina Courts have followed Boykin, requiring that the defendant have a full understanding of the likely consequences of the plea agreement. State v. Harris, 14 N.C. App. 268 (1972); State v. Bass, 133 N.C. App. 646 (1999). However, until Padilla, most courts had held that immigration consequences were not the direct consequences of a criminal conviction but were instead "collateral matters" about which the defense attorney had no obligation to advise a noncitizen defendant. Padilla changed that and defense counsel is now constitutionally required to advise noncitzen defendants of the immigration consequences of a guilty plea.
The application of Padilla is clear for guilty pleas entered after March 31, 2010; however, there is significant debate about whether the decision applies to guilty pleas entered before that date. This is of critical importance because it is often many years before a noncitizen realizes the immigration effect of a criminal conviction. The case involving Shamakh Alshaif is a typical example. Mr. Alshaif was a lawful permanent resident working at a convenience store in Maxton, N.C. On January 30, 2006, he became involved in an altercation with a customer which ended with the customer being shot in the arm. Mr. Alshaif was charged with Assault With a Deadly Weapon Inflicting Serious Injury. He retained private counsel. In his affidavit, Mr. Alshaif indicated that his attorney advised him to plead guilty but never told him that this offense constituted an "aggravated felony" and that he would almost certainly be deported. Relying on his attorney's advise, Mr. Alshaif pled guilty to the offense on February 6, 2007, and received a probationary sentence.
Unfortunately his story doesn't end there. After he completed his probationary sentence, Mr. Alshaif was placed into immigration removal proceedings based solely on that conviction. Moreover, because the offense was an "aggravated felony", he was also ineligible for any relief from removal. His only chance to avoid deportation was to have his conviction set aside. North Carolina has a statutory procedure, known as a motion for appropriate relief (MAR), which allows defendants to ask the court where they were sentenced to vacate criminal convicts obtained in violation of their rights under the constitutions of the United States and North Carolina. Mr. Alshaif filed a MAR with the Robeson County Superior Court contending that his constitutional rights were violated based on Padilla in that his attorney failed to advise him that he was pleading guilty to an aggravated felony. The Superior Court denied that motion, ruling that Padilla did not apply to his case because his guilty plea was entered before the Padilla decision and Padilla did not apply retroactively.
Retroactivity is the application of a decision to cases occurring before the date of the decision. In Teague v. Lane, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989), and its progeny, the United States Supreme Court laid down a framework for determining when a rule announced in one of its decisions should be applied retroactively in criminal cases that are already final on direct review. Under Teague, "an old rule applies on both direct and collateral review, but a new rule is generally applicable to cases that are still on direct review." Whorton v. Blocking, 127 S. Ct. 1173, 167 L. Ed. 2d 1 (2007). A rule is new if it "brakes new ground" or was not "dictated by precedent existing at the time the defendant's conviction became final." Therefore, the initial inquiry into the retroactive application of a rule is to determine whether the Supreme Court decision announced a new rule, or whether it is merely an application of prior holdings.
The Superior Court ruling found that Padilla was a "new rule" and therefore Mr. Alshaif could not benefit from the decision. Mr. Alshaif requested and received permission from the North Carolina Court of Appeals to appeal the ruling from Robeson County Superior Court. Oral arguments were heard before the Court of Appeals on November 15, 2011. On February 21, 2012, the Court of Appeals issued an opinion affirming the Superior Court. Mr. Alshaif had contended that the decision in Padilla was dictated by the High Court's earlier decision in Strickland v. Washington, 466 U.S. 668 (1984) which set forth the test for ineffective assistance of counsel claims.
Mr. Alshaif relied on the Federal Court of Appeals for the Third Circuit's decision in United States v. Orocio, 645 F.3d 630 (3rd Cir. 2011). The Third Circuit was "convinced that Padilla did not 'br[reak] new ground' in holding that counsel must inform a criminal defendant of the immigration consequences of a guilty plea in order to be constitutionally adequate." The Strickland standard 'provides sufficient guidance for resolving virtually all ineffective-assistance-of-counsel claims." Under Strickland, a court must first determine whether counsel's advice to enter a guilty plea was within the range of competence demanded of attorneys in criminal cases. Hill v. Lockhart, 474 U.S. 52, 56-57, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985). This range of competence is necessarily linked to the prevailing professional norms. Stickland, at 688. "However, Strickland did not freeze into place the objective standards of attorney performance in 1984, never to change again." The Third Circuit then concluded that Padilla was not a "new rule" and therefore applied retroactively.
Unfortunately, the North Carolina Court of Appeals relied on the Tenth Circuit Court of Appeals decision in United States v. Chang Hong, 2011 WL 3805763 (10th Cir. 2011). While the court conceded that Padilla was grounded in Strickland, the Tenth Circuit concluded that Padilla created a "new rule." The court noted that prior to Padilla most state and federal courts had considered the failure to advise a client of potential collateral consequences of a conviction to be outside the requirements of the Sixth Amendment. All of these courts had thought that the rule in Padilla was not dictated or compelled by court precedent. The North Carolina Court of Appeals acknowledged that Strickland is a fact-specific test, and must naturally evolve over time as practical norms and underlying legal consequences change. However, the Court found that it would have been unreasonable to expect attorneys to have foreseen the holding in Padilla, especially those unfamiliar with immigration law. The North Carolina Court of Appeals affirmed the denial of Mr. Alshaif's MAR.
This case is not over yet. Similar cases have asked the United States Supreme Court to hear this issue. Because the federal circuit courts have issued contrary rulings, the Supreme Court is likely to decide the matter. The fight continues.