State of New Jersey v. Amobi Nwakanma

• Court: New Jersey Superior Court Appellate Division
• Decided: February 12, 2025
• Docket: A-3057-22
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3057-22

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

AMOBI NWAKANMA, a/k/a AMOBI G. NWAKANMA, 1

Defendant-Appellant. __________________________

Submitted December 17, 2024 – Decided February 12, 2025

Before Judges Chase and Vanek.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 02- 07-0831.

Jennifer N. Sellitti, Public Defender, attorney for appellant (Anderson D. Harkov, Designated Counsel, on the brief).

1 Defendant is referenced in the record also as Amobi Gerald Nwakanma. Yolanda Ciccone, Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Amobi Nwakanma appeals from the Law Division's October

24, 2022 order denying his petition for post-conviction relief (PCR) without an

evidentiary hearing and the April 11, 2023 order denying reconsideration.

Based on our thorough review of the record and prevailing law, we affirm.

I.

We discern the salient facts from the record. Defendant is a Nigerian

citizen who was admitted into the United States in 1999 to attend college in

Texas through a nonimmigrant F-1 college student visa. On December 18,

2001, defendant was convicted of shoplifting, N.J.S.A. 2C:20-11(b)(1), in the

North Plainfield municipal court.

A Middlesex County grand jury indicted defendant for second-degree

eluding, N.J.S.A. 2C:29-2(b), and fourth-degree resisting arrest, N.J.S.A.

2C:29-2(a)(2), stemming from a March 29, 2002 incident where defendant fled

from police resulting in a foot and vehicular pursuit. In December 2002,

defendant pleaded guilty to resisting arrest in exchange for a probationary

sentence and the dismissal of the eluding charge. A circle was placed around

the "N/A" in response to question seventeen on the plea form, which asked,

A-3057-22 2 "[d]o you understand that if you are not a United States citizen or national, you

may be deported by virtue of your [guilty plea]?" During the plea colloquy,

defendant stated he knew he was being pursued by police officers and he

admitted resisting arrest by "trying to get away from [the officers]."

In February 2003, defendant was sentenced to four years of probation

and ninety-one days in jail, entered as time served, and the requisite fines were

imposed. Defendant did not file a direct appeal or move to withdraw his guilty

plea prior to sentencing. In March 2005, defendant's probation was

terminated, and he was sentenced to forty-five days in jail for a violation of

probation (VOP), after he submitted a positive urine screen and failed to report

for probation and substance abuse treatment as required.

In July 2010, defendant was detained by United States Immigration and

Customs Enforcement (ICE) which alleged he was removable under the

Immigration and Nationality Act, 8 U.S.C. §§ 1104-1401, for overstaying his

student visa in addition to the 2001 shoplifting and 2002 resisting arrest

convictions.

In October, defendant filed a motion to vacate the guilty plea, along with

his first PCR petition, alleging the court and his counsel never advised him

that pleading guilty to resisting arrest would lead to mandatory deportation.

Defendant then filed a certification in support of his PCR petition, asserting

A-3057-22 3 had he been advised that he would be deported for pleading guilty to resisting

arrest, he would have elected to go to trial. On March 30, defendant filed an

amended verified petition for PCR asserting no one advised him he could also

be deported for pleading guilty to the VOP, "stating that [plea] counsel told

[him] nothing about deportation [other] than [he] might be deported."

(emphasis added). Defendant also asserted in this petition that he "previously

pled guilty to shoplifting charge in municipal court [and] [a]t the time [he] was

not advised that a conviction for that offense would in any way effect [his]

status in the United States." In April 2011, defendant's PCR application

seeking to vacate the 2001 shoplifting conviction was granted.

Months later an immigration judge ordered the defendant deported

because defendant was admitted to the United States as a "nonimmigrant

student" in 1999 "to attend the University of Texas in Arlington" but had not

carried a full course of study since 2005 and based on the vacated shoplifting

conviction. In July, 2011, ICE released defendant from custody on an order of

supervision.

On March 19, 2012, counsel wrote to defendant urging him to seek

"advice from an immigration lawyer as to the necessity of pursuing the PCR ."

Defendant did not respond. About two months later, defendant's counsel filed

a motion to withdraw his PCR petition relating to the resisting arrest

A-3057-22 4 conviction, asserting it was best for defendant to take no further action pending

the ruling in State v. Gaitan, 209 N.J. 339 (2012) (holding the United State

Supreme Court's ruling that defense counsel must advise clients of

immigration consequences of pleading guilty was not to be applied

retroactively). Counsel stated since it "appear[ed] that [defendant] no longer

face[d] removal, it would appear his PCR [petition] is moot." On June 7,

2012, the court signed an order granting defendant's motion, and the petition

was deemed withdrawn without prejudice.

Nine years later, defendant filed another PCR petition alleging

ineffective assistance of counsel based on the purported failure to inform him

of the immigration consequences of pleading guilty to resisting arrest and to

the VOP.

Another year later, defendant filed an amended PCR petition and a

separate motion to vacate his guilty plea, asserting his conviction for resisting

arrest and for the VOP were the only impediments to him becoming a lawful

permanent resident (LPR). Defendant asserted excusable neglect for his late

PCR filing arguing there was a delay because he did not know during

sentencing he had five years to file for PCR; he did not learn of immigration

penalties until ICE detained him over five years after sentencing; he only

"agreed" with his original PCR counsel to withdraw his prior petition because

A-3057-22 5 of the Gaitan holding and the conclusion of the removal proceedings against

him and he had just learned his guilty plea related to the eluding and resisting

charges also barred him from becoming an LPR.

Defendant alleged he told his plea counsel that he was a non-citizen, and

his record included the prior shoplifting conviction, but counsel informed him

that question seventeen on the plea form "did not apply to [him]," counsel

"circled the answers on [his] behalf," and "told [him] to sign" so that "[he]

would get out of jail." Counsel also told him "pleading guilty . . . would not

trigger any additional immigration consequences." Defendant further asserts

his plea was not knowing and intelligent since he "learned that [he] was

innocent of the charge," but plea counsel had never discussed defenses or

provided him with discovery.

The PCR judge issued an order and written opinion denying defendant's

PCR petition, first addressing the time bar, stating:

[Defendant] asserts that he was not advised of the time period to file for PCR [nor] . . . familiar with the rules . . . . [Defendant] has cited no authority that supports the proposition that the failure to advise [him] of the five-year PCR filing time constitutes excusable neglect. It should be noted that [he] filed two applications and had been assigned counsel when the first PCR application was withdrawn. After the withdrawal of his first, there [was] . . . a nine-year gap before filing his second PCR. [His] certification[s] in support [of both] of his PCR [petitions] . . . do not

A-3057-22 6 specify any allegations of excusable neglect for the delay in filing [either] . . . and certainly do[] not satisfy the exceptional circumstances required by [State v. Mitchell, 126 N.J. 565, 579 (1992).] This PCR is, therefore, time-barred.

The PCR court went on to consider the substance of defendant's claims,

denying defendant's motion to vacate the guilty plea under State v. Slater, 198

N.J. 145, 157-58 (2009) and finding defendant did not set forth a prima facie

case of ineffective assistance of counsel under Strickland v. Washington, 466

U.S. 668 (1984) and State v. Fritz, 105 N.J. 42 (1987). On April 11, 2023, the

PCR judge issued a written opinion and order denying reconsideration.

Defendant now appeals the denial of his PCR petition and

reconsideration motion.

II.

Defendant raises the following points on appeal:

POINT I

THE TIME BAR OF [RULE] 3:22-12 SHOULD NOT HAVE BEEN APPLIED TO DEFENDANT'S PETITION FOR [PCR] BECAUSE DEFENDANT WAS NEVER INFORMED OF HIS RIGHT TO FILE A PETITION FOR [PCR] AND HE DID NOT KNOW HIS GUILTY PLEA IN THIS CASE WOULD RESULT IN HIM FACING MANDATORY DEPORTATION.

A-3057-22 7 POINT II

THE PCR COURT ERRED WHEN IT FAILED TO GRANT DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL WHEN HE ESTABLISHED THAT PLEA COUNSEL FALSELY TOLD HIM THAT THE IMMIGRATION LAWS WERE INAPPLICABLE TO HIS GUILTY PLEA.

POINT III

THE FALLACIOUS ADVICE PLEA COUNSEL GAVE TO DEFENDANT, THAT THERE WERE NO IMMIGRATION CONSEQUENCES TO DEFENDANT'S GUILTY PLEA, COMBINED WITH THE FAILURE OF VOP COUNSEL TO ADDRESS THE ISSUE AT ALL, DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL.

We address defendant's arguments, in turn.

III.

Based on our de novo review, State v. Reevey, 417 N.J. Super. 134, 146

(App. Div. 2010), we discern no error with the PCR court's conclusion that

defendant's PCR petition was procedurally barred by Rule 3:22-12, finding he

failed to demonstrate excusable neglect in re-filing his PCR petition nine years

after voluntarily withdrawing the already time-barred petition.

A-3057-22 8 As to first PCR petitions, Rule 3:22-12(a)(1) provides:

[N]o petition shall be filed pursuant to this rule more than [five] years after the date of entry pursuant to Rule 3:21-5 of the judgment of conviction that is being challenged unless:

(A) it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect and that there is a reasonable probability that if the defendant's factual assertions were found to be true enforcement of the time bar would result in a fundamental injustice; or

(B) it alleges a claim for relief as set forth in paragraph (a)(2)(A) or paragraph (a)(2)(B) of this rule and is filed within the one-year period set forth in paragraph (a)(2) of this rule.

Rule 3:22-12(a)(2)(B) allows a defendant to file a subsequent PCR, but

only if it is filed within one year of "the date on which the factual predicate for

the relief sought was discovered, if that factual predicate could not have been

discovered earlier through the exercise of reasonable diligence." See State v.

Brewster, 429 N.J. Super. 387, 398 n.3 (App. Div. 2013) (quoting R. 3:22-

12(a)(2)(B)).

"A court may relax the time bar if the defendant alleges facts

demonstrating that the delay was due to the defendant's excusable neglect or if

the 'interests of justice demand it.'" State v. Goodwin, 173 N.J. 583, 594

A-3057-22 9 (2002) (quoting Mitchell, 126 N.J. at 576). A court should do so only "under

exceptional circumstances." State v. Afanador, 151 N.J. 41, 52 (1997). "The

concept of excusable neglect encompasses more than simply providing a

plausible explanation for a failure to file a timely PCR petition." State v.

Norman, 405 N.J. Super. 149, 159 (App. Div. 2009). Therefore, "[t]o

determine whether a defendant has asserted a sufficient basis for relaxing the

[Rule 3:22-12's] time restraints, [the court] 'should consider the extent and

cause of the delay, the prejudice to the State, and the importance of the

petitioner's claim in determining whether there has been an injustice sufficient

to relax the time limits.'" Ibid. (quoting Afanador, 151 N.J. at 52).

These time-bar limitations are important because they "encourage[]

those believing they have grounds for [PCR] to bring their claims swiftly, and

discourage[] them from sitting on their rights until it is too late for a court to

render justice." State v. McQuaid, 147 N.J. 464, 485 (1997) (quoting Mitchell,

126 N.J. at 575-76). If the PCR petition was filed more than five years after

the entry of the judgment of conviction, the PCR judge must exercise their

"independent, non-delegable duty to question the timeliness of the petition,"

and require the defendant to "submit competent evidence to satisfy the

standards for relaxing the rule's time restrictions." State v. Brown, 455 N.J.

A-3057-22 10 Super. 460, 470 (App. Div. 2018). Without doing so "the court does not have

the authority to review the merits of the claim." Ibid.

Assertions that a defendant is ignorant of the law, see State v. Murray,

162 N.J. 240, 246 (2000), or is "intentionally ignorant of . . . legal

consequences," Brown, 455 N.J. Super. at 470-71 (holding so where defendant

was aware of possible immigration consequences during plea hearing), do not

constitute excusable neglect under Rule 3:22-12(a). Further, a "[d]efendant

cannot assert excusable neglect simply [due to] receiv[ing] inaccurate

deportation advice from . . . defense counsel . . . ." Brewster, 429 N.J. Super.

at 400 (citation omitted).

Defendant argues he was not informed of immigration consequences

prior to his plea allocution for resisting arrest and, due to plea counsel's

misadvice, "he only learned that he faced [a risk of] deportation after being

served with removal papers on July 8, 2010." Although the State counters

defendant was aware of possible immigration consequences when he signed

the plea form on December 16, 2002, it posits defendant's PCR petition is

untimely even using defendant's proffered July 2010 date.

Since defendant was sentenced on February 10, 2003, his first filing was

over thirteen years beyond the five-year bar in Rule 3:22-12(a)(1) and far

exceeds the one-year deadline in Rule 3:22-12(b)(2)(B). See also Brewster,

A-3057-22 11 429 N.J. Super. at 398. Defendant's PCR petition is also time-barred even if

we view the 2010 filing as the accrual date since there is no excusable neglect

constituting exceptional circumstances. When defendant initially filed his

petition in 2010, he was aware both of his right to file a PCR petition and that

his 2002 guilty plea carried immigration consequences since his self-stated

purpose for filing the PCR petition was to avoid deportation. Nonetheless,

ignorance of the law does not constitute excusable neglect for purposes of

applying the exception in Rule 3:22-12(a)(1)(A). See Murray, 162 N.J. at 246.

Defendant also cannot satisfy the second prerequisite of the exception, a

reasonable likelihood that enforcement of the time bar would result in a

fundamental injustice. The record indicates defendant at least briefly

discussed the possibility of deportation with his plea counsel and concluded

the plea deal was favorable to him.

The "interests of justice" also does not warrant relaxation of the time

bar. See Goodwin, 173 N.J. at 594 (quoting Mitchell, 126 N.J. at 576). The

2021 PCR petition was filed thirteen years beyond the five-year bar and nine

years after the 2010 PCR petition was voluntarily withdrawn in 2012 , with the

delay being attributable only to defendant. Since the delay prejudiced the

State due to loss of evidence and memory erosion of relevant witnesses,

McQuaid 147 N.J. at 485, achieving "justice" by allowing PCR would be

A-3057-22 12 "more an illusory temptation than a plausibly attainable goal." Ibid.

As defendant did not demonstrate "exceptional circumstances" to justify

relaxation of the time bars, we discern no error with the PCR court's denial of

the 2021 PCR petition as procedurally barred, Afanador, 151 N.J. at 52, and

conclude denial of defendant's motion for reconsideration was not an abuse of

discretion. State v. Puryear, 441 N.J. Super. 280, 294 (App. Div. 2015).

To the extent we have not addressed any of defendant's remaining

arguments, we conclude they lack sufficient merit to warrant discussion in a

written opinion. R. 2:11-3(e)(2).

Affirmed.

A-3057-22 13