902 N.W.2d 734
N.D.2017Background
- Haruna Muntari Giwa (noncitizen) pleaded guilty to interference with a telephone during an emergency call; plea and judgment entered November 16–17, 2015.
- Giwa signed plea paperwork acknowledging constitutional rights and waiving counsel; paperwork did not mention immigration consequences.
- DHS terminated Giwa’s parole in February 2016 and he was subsequently deported.
- Giwa filed a post-conviction relief (PCR) application June 16, 2016, claiming he was not advised of trial rights and not informed of immigration consequences; he argued his plea was not knowing, intelligent, or voluntary.
- The State moved for summary dismissal; district court granted dismissal under N.D.C.C. § 29-32.1-09, finding Giwa acknowledged rights and that the 2016 amendment to N.D.R.Crim.P. 11(b)(1)(j) (requiring advising of possible immigration consequences) is not retroactive.
- Giwa appealed; the Supreme Court of North Dakota affirmed summary dismissal.
Issues
| Issue | Giwa's Argument | State's Argument | Held |
|---|---|---|---|
| Whether N.D.R.Crim.P. 11(b)(1)(j) (requirement to inform noncitizen of immigration consequences) should apply retrospectively | Rule 11 amendment is a significant change that should apply retroactively or is a "watershed" rule | Rule 11 amendment was not intended to be retroactive and is not a watershed rule | Not retroactive; amendment does not apply to Giwa’s 2015 plea |
| Whether failure to advise of immigration consequences rendered plea involuntary, unknowing, or unintelligent | Giwa would not have pleaded guilty if advised of immigration consequences; plea therefore invalid | District court followed the rule in effect at plea; plea form and colloquy show waiver of rights and voluntariness | Plea was knowing, intelligent, and voluntary; summary dismissal proper |
| Whether the district court had an obligation to inform Giwa of deportation consequences at plea colloquy | District court (or State) should have informed Giwa of immigration consequences under amended Rule 11 | Prior to amendment, deportation is considered a collateral consequence and court had no duty; counsel bears responsibility under Padilla | Court had no obligation pre-amendment; Abdullahi controls; Padilla’s counsel-based rule not applied to court colloquy and is not retroactive |
| Whether factual dispute (coercion/duress) required evidentiary hearing | Giwa alleged plea not voluntary but provided no affidavit evidence of coercion or duress | No evidence presented at hearing to contradict plea forms or colloquy | No factual basis shown; district court did not clearly err in finding plea voluntary |
Key Cases Cited
- Padilla v. Kentucky, 559 U.S. 356 (counsel must advise noncitizen defendant of deportation consequences to avoid ineffective assistance)
- Chaidez v. United States, 568 U.S. 342 (Padilla rule does not apply retroactively)
- Teague v. Lane, 489 U.S. 288 (standard for retroactive application of new procedural rules; watershed exception)
- State v. Abdullahi, 607 N.W.2d 561 (N.D. 2000) (deportation is a collateral consequence; court not required to advise defendant at plea)
- Sambursky v. State, 723 N.W.2d 524 (N.D. 2006) (failure to advise of particular consequence does not necessarily render plea involuntary)
- Greywind v. State, 869 N.W.2d 746 (N.D. 2015) (standard for reviewing summary dismissal of PCR application)