IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
STATE OF DELAWARE
v.
NIGEL DAVIS
Defendant.
)
)
)
)
)
)
)
CRIMINAL ACTION NUMBERS
IN-04-04-0374 & 05-04-2119
ID No. 0403021957 & 0504003393
Submitted: February 28, 2011
Decided: May 20, 2011
MEMORANDUM OPINION
Upon Motion of Defendant for Postconviction Relief - DENIED
HERLIHY, Judge
Defendant Nigel Davis has moved for postconviction relief in the above captioned
case. He pled guilty on October 27, 2005 to the charge of possession with intent to deliver
cocaine. He was sentenced the same day. He did not file an appeal. Thus, his conviction
became final thirty days later.1
His claims are several, primarily ineffective assistance of his counsel for not
informing him of the consequences of that plea. The main consequence to him is that he
will be deported/excluded from the United States. Trial counsel, when supplied with the
motion, had no specific recollection of advising Davis of the immigration consequences
of his plea, but says he routinely does so with non-U.S. citizens as a matter of course.
Before the Court can undertake a review of a postconviction relief motion, it must
determine if there are any procedural bars to doing so.2 There are several. The first is
that his motion is time barred. It was filed December 17, 2010, more than five years after
his conviction became final.3 There are two means of relief from this time bar. One is
when a defendant asserts “a retroactively applicable right this newly recognized after” the
conviction becomes final.4
1
Jackson v. State, 654 A.2d 829, 832 (Del. 1995).
2
Young v. State, 812 A.2d 225 (Del. 2002)(TABLE).
3
Superior Ct. Cr. R. 61(i)(1); Jackson v. State, supra.
4
Superior Ct. Cr. R. 61(i)(1).
1
Davis’ claim is, in effect, that the United States Supreme Court case in Padilla v.
Kentucky, decided in 2010, established a new right applicable to him: that it is ineffective
assistance of counsel if an attorney fails to inform a defendant of the risk of
deportation/exclusion.5 The trouble is Padilla did not hold that its ruling establishes a
retroactive right.
For purposes of this opinion only, this Court will assume it is to be retroactively
applied as a newly recognized right. But that assumption still does not help Davis. In
Padilla, the Supreme Court remanded the case to determine whether Padilla could show
prejudice.6 That was needed because on a claim of ineffective assistance of counsel, a
defendant must demonstrate 1) the attorney’s conduct fell below an objective standard of
reasonableness and 2) but for counsel’s conduct, he or she was prejudiced.7
Counsel’s affidavit in this case is uncertain whether he gave that advice. This Court
will assume for purposes of discussion, and to give Davis the benefit of the doubt, that his
counsel did not advise him of his risk of deportation/exclusion.8 Because the Court
concedes for purposes of this argument Davis met the first prong, he, like Padilla, must
still show he met the second prong.
5
130 S.Ct. 1473 (2010).
6
Padilla, 130 S.Ct. at 1487.
7
Ayres v. State, 802 A.2d 278, 281 (Del. 2002).
8
It is imperative in light of Padilla, that counsel make an exact record of this advice in
each applicable case.
2
He cannot meet the prejudice test. Davis’ history in this Court shows why. On
October 24, 2004, he pled guilty to another charge of possession with intent to deliver
cocaine (Case No. 0403021957, Cr. A. No. IN-04-04-0374). He signed a TIS Guilty Plea
form indicating he was aware the conviction could lead to his deportation/exclusion. He
was sentenced that day receiving a four year sentence suspended after six months. That
conviction was not appealed.
Davis, however, in 2009, filed in that case a motion for postconviction relief (titled
Motion to Vacate) making essentially the same claim that his counsel in that case did not
inform him of the deportation/exclusion consequences.9 On June 30, 2010, this Court
denied Davis’ motion. That denial was not appealed.
As noted above, Davis filed in late 2010 the current motion for this case. As with
the earlier case, he signed a TIS Guilty Plea form again indicating he was aware of the
deportation/exclusion risks. He is bound by that statement as he was in August 2004 when
he signed the prior TIS Guilty Plea form.10 And he knew in 2009 of the ICE deportation
order.
9
It should be noted that attached to his current motion is a 2009 ICE deportation notice.
10
Sommerville v. State, 703 A.2d 629, 632 (Del. 1997).
3
This Court decided in 1994 that counsel was not ineffective for failing to advise a
defendant of the risk of deportation/exclusion.11 But at the same time, anticipating that
such a consequence which an affected defendant should know, this Court noted it would
be adding to its English and Spanish language TIS Guilty Plea forms language about the
risk of deportation.12 This addition was met with approval in the Supreme Court’s
affirmance.13 The language has been in the Courts forms since 1994.
So long before Padilla, this Court put such language in its TIS Guilty Plea forms.
One reason was that counsel may have forgotten to so advise, or may have had no inkling
there was a need to advise. Since each defendant had to read and sign those forms, each
would know in case counsel failed to advise. Further, unless something arises during the
plea colloquy to alert the Court to the need to verbally raise the subject, it would be in the
form the defendant signed and read, and which the attorney had read to him or her.
Davis was made explicitly aware of the deportation/exclusion risk on two occasions.
Once about a year prior to his plea in 2005. There seems no basis to overcome the time
bar of Rule 61(i)(1). Nor does any provision of Rule 61(i)(5) apply to provide relief to
Davis which would be his second possible means of relief to that time bar.
11
State v. Christie, 655 A.2d 836, 840 (Del. Super. 1994), aff’d Christie v. State, 655
A.2d 306 (Del. 1995)(TABLE).
12
State v. Christie, 655 A.2d at 838, fn. 1.
13
Christie v. State, Supra.
4
In this Court’s denial of Davis’ earlier motion, both this and the earlier case were
cited in the heading. This raises the second bar to this motion. It is duplicative and
previously adjudicated.14 No relief from these bars is applicable.
Conclusion
For the reasons stated herein, defendant Nigel Davis’ motion for postconviction
relief is DENIED.
IT IS SO ORDERED.
J.
14
Superior Ct. Cr. R. 61(i)(2) and (4).
5
