Interesting…The NJ Supreme Court ordered that all pending PCR motions grounded on Padilla and Nunez-Valdez (failure to advise defendant of immigration consequences) are on hold until the court decides the issue of retroactively, which was appealed by the State in Gaitan.
I have at least three motions pending, some of which are scheduled for evidentiary hearings.
The fact that this argument is being considered is perplexing. The Courts in Padilla and Nunez-Valdez both applied their respective decisions retroactively. They never said this applies only to this case and no others. In fact, the Court in Padilla said exactly the opposite. Short of saying this decision applies retroactively, It said everything but. One would point to the “floodgates” language for starters. But aside from that, there is nothing in either decision that would indicate that the Courts intended for the result to be singularly applied to those specific individuals. That interpretation of the cases is obtuse. Additionally, it discounts the important Constitutional rights afforded to a defendant during a criminal proceeding.
I would go apoplectic if the Court found that Padilla had no retroactive application. If so, the case would undoubtedly go all the way up