Great. I seriously didn’t think the state would make a motion to dismiss at the start of this post-conviction hearing. But I knew where this was headed. In Gakaba v. State, the Court of Special Appeals in 1990 held that a probation before judgment does not constitute a conviction in the context of post-conviction relief because there has to be a “conviction” to file for post-conviction, and a PBJ is not a conviction under Maryland law.
I had filed for post-conviction relief based on my client’s PBJ, but there was a difference between my case and Gakaba: My client’s PBJ was considered a conviction under the Immigration and Nationality Act, making him subject to deportation.
Thoughts flew through my mind while the judge was weighing the precedent – wasn’t Gakaba decided before the Supreme Court’s ruling in Padilla v. Kentucky? What the Court of Appeals’ decision in Rivera v. State, which held that a PBJ constitutes a conviction in the context of coram nobis relief because of the immigration consequences? My client is deportable now – to order he has to wait until his probationary period is over before he can cure a defect in his plea is absurd!
Before I knew it, however, the motion to dismiss was granted. It was going to be a quiet ride home.
I don’t think it dawned on me while preparing for this trial that I was quite possibly arguing a case of first impression. As young lawyers, we often think that every case has already been decided. Even though I did not find any cases directly on point while researching, I figured that Rivera and its finding that the term “conviction” is fact dependent meant that my client had to have standing.
But stare decisis decided I was wrong. Now I have to find a way to make things right.
The thing is, what appears controlling law at first glance may not be, and as attorneys we have to push the boundaries.
In my case, my client’s petition for post-conviction relief was based on the violation of his Sixth Amendment right to effective assistance of counsel. Having come to the U.S. with a visa as a child, my client later married a U.S. citizen and had two children. He had filed for a green card through his wife and was otherwise eligible for it, except for a PBJ for under 30 grams of marijuana, which made him inadmissible, and therefore deportable. The PBJ was a result of a guilty plea he would not have entered had his defense attorney told him of the clear immigration consequences.
With his green card application denied, the clock was ticking for ICE to show up at his doorstep. This seemingly harmless PBJ would subject him to mandatory detention by ICE, as it would be considered a CDS conviction under the INA, meaning he would be ineligible for bond while waiting to see the immigration judge. I had to do something, and fast.
With my client still on probation, I filed for post-conviction relief, as I could not file a writ of error coram nobis until after his term of probation expired. Although the grounds of ineffective assistance of counsel would be effectively the same under either form of relief, the current law appears to require someone in his situation to wait until probation is over before petitioning for review, the result of which is nonsensical when considering the collateral consequences.
My argument at the Court of Special Appeals will be that, although the appropriate form of relief in Rivera was coram nobis, my client should be afforded the same opportunity to address a constitutional defect resulting in his deportability by filing for post conviction relief, even if the charges were resolved by a PBJ.
Isn’t it fun to be a lawyer?