SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0927-20

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

AFOLABI OSHINAIKE,

a/k/a AFOLABI C. OSHINAIKE,

Defendant-Appellant.

____________________________

Submitted May 9, 2022 – Decided August 24, 2022

Before Judges Accurso and Enright.

On appeal from the Superior Court of New Jersey, 

Law Division, Union County, Indictment No. 05-04-

0538.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Monique Moyse, Designated Counsel, on 

the brief).

William A. Daniel, Union County Prosecutor, attorney 

for respondent (Joseph M. Nielsen, Assistant 

Prosecutor, of counsel and on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.
2

A-0927-20

Petitioner Afolabi C. Oshinaike appeals from an order dismissing his 

petition for post-conviction relief (PCR) as time-barred and without merit and 

denying his Slater1 motion premised on alleged ineffective assistance in 

connection with his 2005 guilty plea to third-degree possession of cocaine with 

intent to distribute, an aggravated felony that subjected petitioner to mandatory 

deportation, 8 U.S.C. §§ 1101(a)(43)(B), 1227(a)(2)(A)(iii), for which 

defendant was sentenced to probation conditioned on 180 days in the county 

jail. The PCR judge dismissed the petition without an evidentiary hearing, 

rejecting petitioner's claim his plea counsel gave him incorrect advice about 

the immigration consequences of his plea, which he had no reason to question 

before he was placed in U.S. Department of Homeland Security, Immigration 

and Customs Enforcement (ICE) detention in 2019. 

Although petitioner's arrest report, criminal history and pre-trial 

intervention (PTI) papers all correctly reflect he was born in Nigeria or a noncitizen, or both, he answered "Yes sir" when the judge taking his plea asked if 

he was a United States citizen, and the pre-sentence report, which plea counsel 

claimed was accurate, states petitioner was born in New York. Petitioner, who 

was twenty years old when he entered his plea and a lawful permanent resident 

1

 State v. Slater, 198 N.J. 145, 157-58 (2009).
3

A-0927-20

since he entered the country at age thirteen with his parents, claimed he 

answered the judge the way he did because he "thought as a permanent 

resident that I was just like a United States citizen. I just could not vote." He 

certified his counsel, who told him he "would not be deported . . . because [he] 

was not going to State prison" was aware he was a green card holder, but did 

not correct his misstatement to the judge. Petitioner averred that had he known 

he was facing mandatory deportation, he "would never have agreed to enter a 

guilty plea and . . . would have gone to trial." He made no representation as to 

the error in the pre-sentence report. 

The judge rejected petitioner's explanation, finding petitioner "[u]nder 

oath, unambiguously and without any apparent confusion, . . . falsely testified 

that he was a U.S. citizen" after having circled "yes" on the plea form to 

question 17, asking whether he understood "if you are not a United States 

citizen or national, you may be deported by virtue of your plea of guilty." The 

judge further found that "[m]onths later, in the [pre-sentence report] for 

petitioner's sentencing, petitioner listed his place of birth as New York." He 

thus concluded petitioner's misstatement to the judge taking his plea was 

not an innocent mistake: there is not a scintilla of 

evidence petitioner offers to show he somehow 

conflated the two statuses of legal residency and 

citizenship. If that were the case, why did he assent to 
4

A-0927-20

having New York listed as his place of birth in the 

[pre-sentence report], after having advised [the judge]

at the plea hearing that he was a U.S, citizen? Indeed, 

petitioner reads, writes, and understands English and 

has attended some college. There is no basis to find 

that petitioner was simply confused in claiming to be a 

United States citizen. The record unambiguously 

establishes that the misrepresentation was intentional.

Based on his finding that "petitioner was the architect of his own plight" 

by intentionally misrepresenting he was a United States citizen, the judge 

concluded petitioner could not establish either excusable neglect sufficient to 

overcome the five-year time bar or that "he was unaware of the immigration 

consequences of his plea" based on his counsel's incorrect advice. The judge 

reasoned that

[a]ssuming, arguendo, that petitioner's lawyer did 

provide him with this faulty advice, it begs the 

question why petitioner would deliberately 

misrepresent his citizenship if he believed only a state 

prison sentence would subject him to deportation. Put 

differently, if counsel led him to believe his county 

jail sentence shielded him from deportation, why 

falsely claim U.S. citizenship? The only 

commonsensical explanation for petitioner's 

misrepresentation is that, aware he was deportable as a 

non-citizen — something he acknowledged under 

Question 17 of the plea form — he sought to keep his 

true citizenship "under the radar" of ICE. Simply 

stated, knowing the consequences of admitting his 

non-citizenship in open court, under oath, while 

pleading to a third-degree drug distribution offense, 
5

A-0927-20

petitioner chose to knowingly misrepresent his status 

in an attempt to save himself from deportation. 

Petitioner, of course, offered another explanation, the one the judge 

dismissed as not credible without an evidentiary hearing. Although we accept 

the possibility that petitioner may not have been truthful in his certification,

the case law is unequivocal that the PCR court must view the facts in the light 

most favorable to the petitioner in deciding whether he has established a prima 

facie case of ineffective assistance of counsel. State v. Jones, 219 N.J. 298, 

311 (2014). The PCR court failed to adhere to that dictate. 

While we are not certain a judge hearing all the evidence will agree 

petitioner received erroneous advice about the immigration consequences of 

his plea, which he had no reason to suspect prior to 2019 when he was 

detained by ICE, we are certain if petitioner's assertions were found to be true, 

enforcement of the time bar would be a fundamental injustice. See R. 3:22-

12(a)(1)(A); Lee v. United States, 137 S. Ct. 1958, 1968-69 (2017) (holding a 

petitioner with little chance of prevailing at trial can still establish prejudice 

from erroneous immigration advice leading to a guilty plea when deportation 

was the determinative issue for petitioner in plea negotiations). Accordingly, 

we vacate the dismissal of petitioner's PCR petition and remand for an 

evidentiary hearing to permit petitioner the opportunity to establish both 
6

A-0927-20

excusable neglect and that his counsel's erroneous advice about deportation 

consequences led him to accept a plea he would otherwise have declined. See

State v. Garcia, 320 N.J. Super. 332, 340-41 (App. Div. 1999) (holding PCR 

court should have held an evidentiary hearing as to whether client was 

affirmatively misinformed about deportation consequences when he entered 

his guilty plea). 

Because the trial court rendered its decision without an evidentiary 

hearing, our review of its legal and factual determinations is de novo. State v. 

Harris, 181 N.J. 391, 421 (2004). Petitioner was charged with several drug 

offenses after police saw him exchange money for drugs in two hand-to-hand 

transactions near his home in Elizabeth. The arrest report noted he was born in 

Nigeria. 

Petitioner's application for PTI was denied due to "continuing criminal 

behavior," the "serious nature" of his offense and his failure to obtain a 

substance abuse evaluation. Although there was no appeal, his lawyer wrote a 

letter, seeking to "clarify certain issues." Specifically, she asserted petitioner, 

who had a drug problem, kept his timely appointment for a drug and alcohol 

evaluation and had already begun a substance abuse program. 
7

A-0927-20

Counsel also reviewed petitioner's record, noting only one guilty plea to 

a charge of loitering and a pending charge for obstruction of public 

passageways. Although he had arrests for simple assault and criminal trespass, 

counsel claimed both arrests resulted from police arresting a group of juveniles 

of which petitioner was a part. Both charges were dismissed. Counsel noted 

petitioner was only twenty years old with an obvious substance abuse problem. 

He lived at home with his parents, had graduated from high school and was 

enrolled in his second semester at Essex County College. She maintained 

petitioner's arrests made clear he had fallen in with "the wrong crowd," but he 

had taken responsibility for his actions and was making "every effort possible" 

to turn his life around. Counsel maintained petitioner's young age made him 

an "excellent candidate" for rehabilitation and the PTI program, and she 

expected he would "have no further involvement with our judicial system after 

this experience." Petitioner's PTI papers noted he was a non-citizen born in 

Nigeria.

Following the denial of his PTI application, petitioner pleaded guilty to 

third-degree possession of cocaine with intent to distribute with a 

recommended sentence of probation conditioned on 180 days in the county 

jail. Although petitioner's plea counsel had obviously reviewed the PTI papers 
8

A-0927-20

noting petitioner's non-citizen status and counseled him to circle "yes" to

question 17 on the plea form indicating he understood if he was not a citizen 

that he could be deported by virtue of his plea, which PCR counsel noted most 

U.S. citizens answered by circling N/A, "not applicable," plea counsel did not 

correct petitioner's statement in the plea colloquy that he was a citizen. 

Nor did plea counsel note the error in the pre-sentence report stating

petitioner was born in New York. When plea counsel was asked by the 

sentencing judge whether she had any "corrections or additions," to the report, 

counsel replied that she "did not see any corrections." Although the PCR 

judge found petitioner "during his pre-sentence interview . . . claimed to have 

been born in New York," which the judge termed "not an innocent mistake,"

we found nothing in the record to support those findings. While it is, of 

course, possible petitioner affirmatively misrepresented his place of birth to 

the probation officer completing his presentence report, we assume it's equally 

possible the error may have been that of the probation officer, who appears not 

to have noticed that petitioner's arrest report, PTI forms and criminal history,
9

A-0927-20

which she used to prepare the report, all noted he was either not a U.S. citizen 

or born in Nigeria, or both.

2

Petitioner was sentenced on November 4, 2005, in accordance with his 

plea agreement on the third-degree possession with intent to distribute as well 

as to a fourth-degree contempt of a judicial order — his first and last indictable 

convictions. In 2009, his probation was extended for six months following an 

unidentified violation of probation, and he pleaded guilty to an ordinance 

violation in 2013. He was arrested another time in 2013 and twice in 2015, but 

all charges were dismissed. In 2017, he was arrested for driving with a 

suspended license and confined to the Essex County jail and also apparently 

arrested in New York City for what his PCR counsel referred to as "a minor 

traffic violation." None of those encounters with law enforcement triggered 

any ICE contact. Petitioner even renewed his green card in 2012 without 

incident. It wasn't until 2019, when petitioner was arrested on a child support 

warrant, that he was taken into ICE custody. 

Petitioner hired counsel and promptly filed his PCR petition, alleging 

plea counsel provided him ineffective assistance by telling him his plea had no 

2

 It's not the only error we noticed. Although the first page of the report notes 

petitioner had pending charges, the narrative section on the last page states he 

"has no known warrants or detainers nor does he have any pending cases." 
10 A-0927-20

adverse immigration consequences and failing to appeal his denial of 

admission to PTI among other things, and that his failure to file sooner was 

excusable as he had no reason to question his plea counsel's advice about the 

immigration consequences of his plea until he was detained by ICE in 2019.

As already noted, the PCR judge denied the petition without an 

evidentiary hearing and denied petitioner's Slater motion as well, both largely 

premised on his finding that "petitioner deliberately misled the judges who 

accepted his voluntary change in plea and sentenced him pursuant to that 

plea."3 The PCR judge rejected petitioner's claim his counsel affirmatively 

3

 Although acknowledging there was no published case addressing "a 

petitioner's dishonesty related to his immigration status," the judge relied on 

unpublished cases purportedly holding that "a presumption of deficient 

representation" is not "triggered" when a petitioner "affirmatively 

misrepresents his immigration status" and that "a substantial and relevant plea 

colloquy may cure" plea counsel's faulty immigration advice. The judge 

dropped a footnote noting that "because R. 1:36-3 proscribes courts from 

relying on unpublished opinions as binding precedent, the court's reference to 

[these cases] is for illustrative purposes only." The judge's citation to those 

unpublished cases, three in total, was improper. Rule 1:36-3 not only makes 

clear that "[n]o unpublished opinion shall constitute precedent or be binding 

upon any court," it also prohibits judges from citing them except in limited 

circumstances not present here. The reason for the rule is clear; not only do 

unpublished opinions lack precedential value, they "cannot reliably be 

considered part of our common law." Trinity Cemetery Ass'n v. Twp. of Wall, 

170 N.J. 39, 48 (2001) (Verneiro, J., concurring). Their inclusion in the PCR 

judge's opinion, even for "illustrative purposes only," was error.
11 A-0927-20

misadvised him that he would not be subject to deportation so long as he 

wasn't sentenced to a state prison term as "a bald, self-serving allegation," 

finding the claim "makes no sense" and is "irrelevant" in any event because 

petitioner's plea "was not to state prison" but to the recommended sentence of 

180 days in the county jail. The judge found petitioner's reasonable 

expectations of the plea — that he would avoid a state prison sentence — were 

met and he couldn't establish excusable neglect based on the mis-advice of his

counsel, citing State v. Brewster, 429 N.J. Super. 387, 400 (App. Div. 2013).

4

Petitioner appeals, arguing he was entitled to an evidentiary hearing on 

his claims. We agree. 

Our Supreme Court has often "reiterated the significance of a petition for 

post-conviction relief and stressed that a hearing on such a petition 'is not a pro 

forma exercise, but a meaningful procedure' to root out mistakes that cause an 

4

 In Brewster, we highlighted the need for a defendant to present "compelling, 

extenuating circumstances" to meet the "exceptional circumstances" 

requirement for relaxation of the five-year time-bar, noting a "[d]efendant 

cannot assert excusable neglect simply because he received inaccurate 

deportation advice from his defense counsel." 429 N.J. Super. at 400. 

Brewster, already beyond the five-year deadline for filing a PCR petition,

waited another three years after being advised his 1998 conviction "could be a 

problem" in his efforts to gain U.S. citizenship before finally filing his PCR 

petition in 2010. Id. at 399-400. The case is not analogous to this one on its 

facts. 
12 A-0927-20

unjust result either in a verdict or sentence." State v. Parker, 212 N.J. 269, 279 

(2012) (quoting State v. Hess, 207 N.J. 123, 144-45 (2011)). For reasons we 

cannot fathom, the PCR judge failed to view the facts "[a]s in a summary 

judgment motion, . . . in the light most favorable to a defendant to determine 

whether a defendant has established a prima facie claim." State v. Preciose, 

129 N.J. 451, 462-63 (1992). Instead, the PCR judge did exactly the opposite, 

viewing petitioner's averments in the harshest light to him.

If the court credits petitioner's averment that his plea counsel told him he 

would not be deported because he would not be receiving a state prison term, 

and that advice drove his acceptance of the plea, he has established a prima 

facie case of ineffective assistance of counsel under the two-prong Strickland5

standard, entitling him to an evidentiary hearing. See State v. Nunez-Valdez, 

200 N.J. 129, 131 (2009). Lee makes clear that even a petitioner with no 

viable defense can establish prejudice from erroneous immigration advice 

under the second prong of Strickland if that advice was the determinative 

factor in petitioner's willingness to accept the plea. 137 S. Ct. at 1968-69. 

The PCR judge refused to credit petitioner's averment that his counsel 

had provided him erroneous immigration advice because the judge concluded 

5 Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984). 
13 A-0927-20

petitioner had knowingly lied to the judge taking his plea. But that is a finding 

that should not have been made on the papers. As we've already noted, the 

arrest report, PTI forms and petitioner's criminal history, all of which 

petitioner's counsel necessarily reviewed, correctly noted he was born in 

Nigeria or a non-citizen, or both. Petitioner also certified he circled "yes" to 

question 17 on the plea form with plea counsel's assistance, suggesting she was 

aware petitioner was not a U.S. citizen. See Garcia, 320 N.J. Super. at 336 

(noting counsel's certification that "[i]f any defendant answers that he or she is 

not a citizen, he customarily circles 'yes' on the plea form"). The discrepancy 

between the arrest report, PTI forms, criminal history, plea form and 

petitioner's statement to the judge that he was a U.S. citizen should have been 

explored at an evidentiary hearing. While we disagree the PCR judge could 

appropriately find on the papers that petitioner "knowing the consequences of 

admitting his non-citizenship in open court, under oath, while pleading to a 

third-degree drug distribution offense, . . . chose to knowingly misrepresent his 

status in an attempt to save himself from deportation," we note the judge's 

postulate suggests that deportation was the determinative factor for petitioner

in plea negotiations. See Lee, 137 S. Ct. at 1968-69.
14 A-0927-20

We also reject the PCR judge's view that whether petitioner was or was 

not a U.S. citizen is "irrelevant" because he was advised by virtue of question 

17 that "a non-citizen was subject to deportation after pleading guilty." We 

are not aware of any published case holding that a "yes" answer to the 2005 

version of question 17 will spare plea counsel from a finding of ineffective 

assistance of counsel in the face of wrong or inaccurate advice about the 

immigration consequences of a proffered plea. See State v. Gaitan, 209 N.J. 

339, 361-63 (2012) (discussing the evolution of question 17 and plea counsel's 

obligation to refrain from giving wrong or inaccurate advice about the 

immigration consequences resulting from entry of a guilty plea). We further

reject the judge's view that "[p]etitioner's claim that his lawyer misinformed 

him by privately telling him that he would be subject to deportation only if he 

were sentenced to state prison . . . makes no sense" because the plea agreement

called for 180 days in the county and not a State prison term. As we 

understand petitioner's claim, it is that he accepted the plea precisely because 

plea counsel advised him the recommended county jail sentence would not 

subject him to removal, which was incorrect, as petitioner pleaded guilty to an 

aggravated felony making him mandatorily deportable, notwithstanding his 
15 A-0927-20

probationary sentence and no state prison time. See 8 U.S.C. §§1101(a)(43), 

1227(a)(2)(A)(iii).

We do not suggest that a petitioner's misrepresentation of his citizenship 

status in the course of his plea colloquy if made with an intent to deceive the 

court, will not have consequences, perhaps dire ones. Here, for example, it 

might, at the very least, preclude an otherwise reasonable finding of excusable 

neglect because it could undermine petitioner's professed reasons for his 

failure to file a timely PCR petition, or undermine petitioner's claimed reliance 

on the allegedly erroneous advice. We find only that the court erred in failing 

to view the facts in the light most favorable to petitioner and concluding, 

without testimony, that petitioner "chose to knowingly misrepresent his status" 

in the plea colloquy "in an attempt to save himself from deportation" on this 

record. See Garcia, 320 N.J. Super. at 341 (holding the PCR court should not 

have decided contested issue of material fact on conflicting affidavits without 

considering testimony of witnesses in open court).

Accordingly, we vacate the dismissal of petitioner's PCR petition and 

remand for an evidentiary hearing for the court to consider his claims of 

ineffective assistance of his plea counsel and his motion to withdraw his guilty 

plea. We express no opinion on the outcome of such hearing. Because the 
16 A-0927-20

PCR judge has already deemed petitioner not credible before hearing him 

testify, the hearing will obviously need to be conducted before a different 

judge. See State v. Camey, 239 N.J. 282, 312 (2019). We do not retain 

jurisdiction.

Vacated and remanded.