SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0401-19

STATE OF NEW JERSEY, 

Plaintiff-Respondent, 

v. 

HINA RABIA, 

Defendant-Appellant.

_________________________

Submitted January 21, 2021 – Decided

Before Judges Vernoia and Enright. 

On appeal from the Superior Court of New Jersey, Law 

Division, Hudson County, Indictment No. 15-06-0966. 

Joseph E. Krakora, Public Defender, attorney for 

appellant (Monique Moyse, Designated Counsel, on the 

brief). 

Esther Suarez, Hudson County Prosecutor, attorney for 

respondent (Lillian Kayed, Assistant Prosecutor, 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NOT FOR PUBLICATION WITHOUT THE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.

February 19, 2021
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A-0401-19

Defendant Hina Rabia appeals from an order denying her post-conviction 

relief (PCR) petition which sought the reversal of her conviction for third-degree 

arson, N.J.S.A. 2C:17-1(b)(1). The court denied the petition without an 

evidentiary hearing, finding defendant failed to establish a prima facie case of 

ineffective assistance of her plea counsel under the two-pronged standard 

established in Strickland v. Washington, 466 U.S. 668, 687 (1984), and adopted 

by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). Having 

considered defendant's arguments, the record, and the applicable legal 

principles, we are convinced the PCR court correctly denied the petition and we

affirm.

I.

A grand jury charged defendant in an indictment with second-degree 

aggravated arson, N.J.S.A. 2C:17-1(a)(1), and alleged she started a fire in her 

room at a motel and "purposely and/or knowingly plac[ed] other . . . residents" 

of the motel "in danger of death or bodily injury." Represented by counsel, 

defendant negotiated a plea agreement permitting her to plead guilty to a reduced 

charge of third-degree arson, N.J.S.A. 2C:17-1(b)(1), in exchange for the State's 

recommendation that she receive a probationary sentence. 
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During the plea proceeding, the court questioned defendant concerning 

the immigration consequences of her plea. Defendant testified she was not a 

United States citizen and she understood she "could be deported" as a result of 

her plea. She also testified she understood that, as a result of her plea, she might

be prevented from returning to the United States if she left the country. 

Defendant said she understood that she had "the right to speak to an immigration 

attorney" about the consequences of her plea, but she opted to forego that 

opportunity and proceed with the plea proceeding.1 

Plea counsel informed the court that he had conferred with another 

attorney in his office about the immigration consequences of the plea, and that 

he advised defendant "there are no immigration consequences" from the plea 

"relative to her legal status so she will remain as having legal status." The court 

advised defendant that despite plea counsel's statements concerning the effect 

of the plea on her immigration status, it did not have authority to determine if 

defendant would be deported. The court advised defendant she "could possibly 

1

 Defendant also testified that she reviewed the plea form with her counsel and 

he answered all of her questions about the form. On the completed and signed 

plea form, defendant responded affirmatively to Question 17(b) which asks, "Do 

you understand that if you are not a citizen of the United States, this guilty plea 

may result in your removal from the United States and/or stop you from being 

able to legally enter or re-enter the United States?" 
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be deported" as a result of the plea. In response, defendant testified that she 

"wish[ed] to be deported" and "will go back," and that she was "guilty" of the 

arson and was "trying to deport." The court reminded defendant that any

decision concerning the immigration consequences of her plea, including 

possible deportation, would be made by a different court in another proceeding. 

Defendant also provided a factual basis for her plea. She testified that in 

January 2015, she resided at a motel and started a fire in her room by lighting a 

chair on fire. Defendant admitted that when she started the fire, she was aware 

there were other people living in, and staying at, the motel. Defendant explained 

that she intended to start the fire because she felt "helpless" and wanted to harm 

herself, and that starting the fire was "reckless" because the fire "could have 

injured other people" in the motel. The court accepted defendant's guilty plea 

and later sentenced her to a three-year probationary term in accordance with the 

plea agreement. 

Defendant subsequently filed a timely pro se PCR petition, claiming her 

plea counsel was ineffective because she "did not know [she] would be removed 

from the [United States] despite being a legal permanent resident, just because 

[she] left the [United States] after [her] probation was over." In an amended 

verified petition, defendant asserted she was innocent of the arson offense to 
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which she pleaded because she was not aware that her "actions would hurt 

anyone . . . but [her]self." Defendant stated she suffered from depression when 

the incident took place, and she did not "believe [she] was cognizant of [her] 

conduct" because she "was not taking prescription medicine to combat [her] 

illness."

Defendant further asserted that "nothing at all was discussed with" plea 

counsel about the immigration consequences of her plea. She also averred that

she had been a "permanent residence green card holder," and she contacted plea 

counsel after completing her probationary sentence and asked counsel "if it was 

permissible to leave the United States to visit the count[r]y of [her] origin, 

Pakistan." Defendant asserted that plea counsel told her "it was permissible to 

do so," but after she returned from Pakistan her "green card [was] taken." 

Defendant explained that she then contacted plea counsel again, and he told her 

"he was wrong in telling [her] it was permissible to leave the United States." 

Defendant stated that "[h]ad [she] known this information during the time of the 

pending criminal charges, [she] would not have plead[ed] guilty but would have" 

proceeded to trial. 

After hearing argument, the court denied the PCR petition. In pertinent 

part, the court reasoned that even if plea counsel provided incorrect advice 
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concerning the immigration consequences of the plea, defendant failed to 

demonstrate that but for the error there is a reasonable probability she would 

have rejected the plea offer and proceeded to trial.2 The court noted that during 

the plea proceeding defendant testified she "wish[ed] to be deported," "look[ed]

to go back to her country of origin," and said she was "guilty" and "trying to 

deport." The court found defendant's testimony inconsistent with her claim that 

but for plea counsel's allegedly incorrect advice, she would have rejected the 

plea and proceeded to trial. The court concluded defendant failed to sustain her 

burden of establishing she suffered any prejudice from plea counsel's allegedly

incorrect advice about the immigration consequences of her plea. 

The court also rejected defendant's claim that plea counsel was ineffective 

by failing to pursue a diminished capacity defense due to defendant's alleged 

mental health issues. The court noted that at the outset of the plea proceeding, 

plea counsel represented that an incompetency defense had been considered, 

2

 We do not address the PCR court's rejection of defendant's other arguments 

supporting her PCR petition—including claims plea counsel should have moved 

to dismiss the arson charge and erred by permitting her to plead guilty to arson 

because she did not have the requisite mens rea—because defendant does not 

challenge the court's determinations on those issues on appeal. Issues not 

briefed on appeal are deemed waived. Jefferson Loan Co. v. Session, 397 N.J. 

Super. 520, 525 n.4 (App. Div. 2008); Zavodnick v. Leven, 340 N.J. Super. 94, 

103 (App. Div. 2001).
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defendant underwent a psychiatric evaluation that confirmed her competency to 

stand trial, and defendant advised counsel she did not want to assert a not-guiltyby-reason-of-insanity defense to the arson charge and instead opted to plead

guilty to the amended third-degree arson charge. The court explained that 

although plea counsel did not make specific reference to a diminished capacity 

defense, his representations suggested that defendant opted not to defend the 

matter based on any alleged mental health or diminished capacity issues. The 

court also found that even if plea counsel erred by failing to assert a diminished 

capacity defense, defendant did not demonstrate that but for the error there is a 

reasonable probability she would have rejected the plea agreement and 

proceeded to trial.

The court determined defendant failed to establish a prima facie case of 

ineffective assistance of counsel and entered an order denying the PCR petition 

without an evidentiary hearing. This appeal followed. 

Defendant presents the following argument for our consideration: 

POINT ONE

[DEFENDANT] IS ENTITLED TO AN 

EVIDENTIARY HEARING ON HER CLAIM THAT 

TRIAL COUNSEL RENDERED INEFFECTIVE 

ASSISTANCE OF COUNSEL BY FAILING TO 

INFORM HER ADEQUATELY OF HER DEFENSES 

AND OF THE DEPORTATION CONSEQUENCES 
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OF HER PLEA SO THAT SHE COULD MAKE AN 

INFORMED DECISION ABOUT PLEADING 

GUILTY OR PROCEEDING TO TRIAL.

II.

We review the legal conclusions of a PCR court de novo. State v. Harris, 

181 N.J. 391, 419 (2004). The de novo standard of review also applies to mixed 

questions of fact and law. Id. at 420. Where an evidentiary hearing has not been 

held, it is within our authority "to conduct a de novo review of both the factual 

findings and legal conclusions of the PCR court." Id. at 421. We apply these 

standards here.

In Strickland, the Supreme Court adopted a two-pronged test for a 

determination of a PCR claim founded on an alleged ineffective assistance of 

counsel. 466 U.S. at 687. First, a petitioner must show counsel's performance 

"fell below an objective standard of reasonableness" and "counsel made errors 

so serious that counsel was not functioning as the 'counsel' guaranteed the 

defendant by the Sixth Amendment." Id. at 687-88. Second, a "defendant must 

show that the deficient performance prejudiced the defense." Id. at 687. There 

must be "a reasonable probability that, but for counsel's unprofessional errors, 

the result of the proceeding would have been different." Id. at 694. 
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To satisfy the second prong of the Strickland standard where a defendant 

seeks to set aside a conviction based on guilty plea, he or she must also 

"convince the court that a decision to reject the plea bargain" and proceed to

trial "would have been rational under the circumstances." State v. Maldon, 422 

N.J. Super. 475, 486 (App. Div. 2011) (quoting Padilla v. Kentucky, 559 U.S. 

356, 372 (2010)). That determination must be "based on evidence, not 

speculation." Ibid.

Defendant argues the court erred by denying her petition without an 

evidentiary hearing. An evidentiary hearing on a PCR petition should be granted 

only when a defendant presents a prima facie case for PCR, the court determines 

the existing record is not adequate for resolving the claim, and the court 

determines an evidentiary hearing is required. State v. Porter, 216 N.J. 343, 354 

(2013) (quoting R. 3:22-10(b)). "A prima facie case is established when a 

defendant demonstrates 'a reasonable likelihood that his or her claim, viewing 

the facts alleged in the light most favorable to the defendant, will ultimately 

succeed on the merits.'" Id. at 355 (quoting R. 3:22-10(b)). 

Factual assertions supporting a prima facie case "must be made by an 

affidavit or certification pursuant to Rule 1:4-4 and based upon personal 

knowledge of the declarant before the court may grant an evidentiary hearing." 
10 A-0401-19

R. 3:22-10(c); see also State v. Jones, 219 N.J. 298, 312 (2014). "[A] defendant 

is not entitled to an evidentiary hearing if the 'allegations are too vague, 

conclusory, or speculative . . . .'" Porter, 216 N.J. at 355 (quoting State v. 

Marshall, 148 N.J. 89, 158 (1997)). 

The court correctly denied defendant's petition without an evidentiary 

hearing on her claim plea counsel was ineffective by providing incorrect legal 

advice on the immigration consequences of her plea. Defendant was not entitled 

to an evidentiary hearing because she failed to sustain her burden of presenting 

competent evidence establishing a prima facie case of ineffective assistance of 

plea counsel under the Strickland standard. See State v. Nash, 212 N.J. 518, 542 

(2013) (explaining a failure to satisfy both prongs of the Strickland standard 

requires denial of a PCR petition).

In the first instance, defendant failed to make any showing plea counsel's 

advice concerning the consequences of her plea was incorrect. Her amended 

petition alleged facts permitting only speculation about whether plea counsel's

advice was incorrect. She asserted that after she returned from a trip to Pakistan, 

her status as a "permanent residence green card holder" was "rescinded," but she 

did not assert any facts establishing the reason for the rescission of her 

immigration status was her plea to, and conviction of, the arson. She does not 
11 A-0401-19

provide any evidence establishing the actual reason for the change in her 

immigration status. Thus, the premise for defendant's ineffective assistance of 

counsel claim—that plea counsel provided inaccurate advice concerning the 

immigration consequences of her plea—finds no competent evidentiary support 

in the record. 

It appears that before the PCR court, defendant claimed that plea counsel's 

advice was incorrect because, contrary to his statement that her plea would not 

affect her immigration status, she was deportable under 8 U.S.C. § 

1227(a)(2)(A)(i). The statute provides that 

[a]ny alien who—

(I) is convicted of a crime involving moral turpitude 

committed within five years (or [ten] years in the case 

of an alien provided lawful permanent resident status 

under section 245(j) [of this title]) after the date of 

admission, and 

(II) is convicted of a crime for which a sentence of one 

year or longer may be imposed, 

is deportable.

[8 U.S.C. § 1227(a)(2)(A)(i).]

As noted by the PCR court, although defendant pleaded guilty to a crime 

for which a sentence of one year or longer may be imposed, she did not present 

any evidence establishing that she was otherwise deportable under the statute
12 A-0401-19

and, concomitantly, that her plea counsel's advice was erroneous. More 

particularly, the record lacked any evidence defendant was convicted of an 

offense that qualified her for deportation based on the time limitations set forth

in subsection I of the statute. Thus, she failed to present evidence permitting a 

determination she is deportable under the statute, and she therefore did not 

establish that plea counsel's immigration advice was incorrect.

On appeal, defendant argues plea counsel's immigration advice was 

incorrect, but she fails to cite to any evidence or legal authority establishing the 

advice was erroneous as a matter of fact and law. She therefore failed to sustain 

her burden of establishing plea counsel erred by advising that her plea would 

not have immigration consequences. Because she failed to establish the first 

prong of the Strickland standard on the claim, the court correctly rejected the 

claim without an evidentiary hearing. See Nash, 212 N.J. at 542. 

Even if it is assumed that plea counsel's immigration advice was incorrect, 

defendant's PCR claim fails under Strickland's second prong. Defendant's 

petition and amended petition do not demonstrate there is a reasonable 

probability that she would have rejected the plea offer but for her counsel's 

alleged errors. See Maldon, 422 N.J. Super. at 486. Indeed, other than her bald

assertion she would not have pleaded guilty but for her counsel's allegedly
13 A-0401-19

inaccurate advice, defendant failed to provide any facts or evidence addressing 

Strickland's second prong. See State v. Cummings, 321 N.J. Super. 154, 170

(App. Div. 1999) (explaining "bald assertions" are insufficient to sustain a 

defendant's burden of establishing a prima facie case of ineffective assistance of 

counsel under the Strickland standard). 

Moreover, as the PCR court correctly noted, the record undermines any 

claim that but for plea counsel's purported erroneous immigration advice,

defendant would have rejected the plea offer and proceeded to trial. As noted, 

defendant testified during the plea proceeding that she wanted to be deported. 

That testimony, which defendant offered when the court said she might be 

deported as a result of her plea, belies her assertion that she would have rejected 

the plea and proceeded to trial if her attorney had not given the purported 

incorrect immigration advice.

Defendant also failed to present any evidence that but for her counsel's 

erroneous advice about immigration, it would have been rational for her to reject 

the plea offer and proceed to trial. See ibid. Most simply stated, defendant 

failed to address this element of her burden under the second prong of the 

Strickland standard. 
14 A-0401-19

We also note that defendant was charged with second-degree arson. If 

convicted, she was subject to a presumption of incarceration, N.J.S.A. 2C:44-

1(d), and a prison term of between five and ten years, see N.J.S.A. 2C:43-6(a)(2) 

(providing a sentencing range of five to ten years for a second-degree offense), 

during which she would have been required to serve eighty-five percent without 

eligibility for parole under the No Early Release Act, N.J.S.A. 2C:43-7.2(d)(11). 

Following her release, defendant would have then been subject to three years of 

parole supervision. N.J.S.A. 2C:43-7.2(c). She does not dispute she started the 

fire, and she testified at her plea proceeding that she did so knowing other people 

were in the motel and could have been injured. Those facts support a conviction 

for second-degree aggravated arson. See N.J.S.A. 2C:17-1(a)(1) (providing a 

person is guilty of second-degree aggravated arson if he or she starts a fire on 

another's property thereby "knowingly placing another person in danger of death 

or bodily injury"). Nonetheless, plea counsel negotiated the very favorable plea 

agreement that defendant sought, a plea to third-degree arson with service of a 

probationary sentence. 

Defendant failed to demonstrate that it would have been rational to reject 

the plea offer and proceed to trial but for her counsel's alleged erroneous 

immigration advice. She therefore failed to sustain her burden under the second 
15 A-0401-19

prong of the Strickland standard, see Maldon, 422 N.J. Super. at 486, and the

court correctly rejected the ineffective assistance of counsel claim without an 

evidentiary hearing, see Nash, 212 N.J. at 542. 

In her brief on appeal, defendant also argues plea counsel's performance 

was deficient because he "failed to inform [defendant]" about a diminished 

capacity defense. The argument lacks any citation to evidence establishing plea 

counsel failed to inform defendant about the defense, and the arguments of 

counsel do not establish facts supporting a PCR petition. See generally R. 3:22-

10(c) (providing that factual assertions relied on in a PCR petition must be 

supported by an affidavit or certification); see also Jones, 219 N.J. at 312. 

Defendant's claim also finds no support in the record. Defendant's 

submissions to the court did not establish that plea counsel failed to consider, or 

discuss with her, a diminished capacity defense. Defendant did not submit an 

affidavit or certification stating her plea counsel failed to discuss the defense 

with her, and the PCR petition and amended petition do not aver that plea 

counsel failed to consider the defense or discuss it with her. See Cummings, 

321 N.J. Super. at 170 (explaining the facts supporting a PCR petition must be 

"supported by affidavits or certifications based upon the personal knowledge of 

the affiant or the person making the certification"). In other words, we reject 
16 A-0401-19

defendant's argument that her counsel was ineffective by failing to discuss a 

diminished capacity defense because there is no evidence plea counsel failed to 

discuss the defense with her. 

Defendant also did not demonstrate plea counsel's performance was 

deficient by his alleged failure to discuss the defense with her because there is 

no evidence establishing defendant's entitlement to the defense. A defense 

counsel is not ineffective by failing to raise meritless legal arguments or 

defenses. State v. Worlock, 117 N.J. 596, 625 (1990). And here, defendant fails 

to demonstrate there was an evidential basis supporting the diminished capacity 

defense she contends plea counsel failed to consider or discuss with her.

A defendant asserting a diminished capacity defense carries the initial 

burden of "present[ing] evidence of a mental disease or defect that interferes 

with cognitive ability sufficient to prevent or interfere with the formation of the 

requisite intent or mens rea[,]" and "evidence that the claimed deficiency did 

affect the defendant's cognitive capacity to form the mental state necessary for 

the commission of the crime." State v. Baum, 224 N.J. 147, 160-61 (2016)

(second alteration in original) (quoting State v. Galloway, 133 N.J. 631, 647 

(1993)). In support of her PCR petition, defendant did not present any evidence 

establishing a basis for the assertion of a meritorious diminished capacity 
17 A-0401-19

defense. She offered no expert opinion that, at the time of the incident, she 

suffered from a mental disease or defect that interfered with her cognitive 

abilities. Instead, defendant offered nothing more than conclusory assertions 

that she suffered from depression and she "believe[d] she was not cognizant of 

her conduct" due to her failure to take prescription medicine. She did not

provide competent expert testimony supporting a meritorious diminished 

capacity defense, and she therefore failed to demonstrate plea counsel's 

performance was deficient by allegedly failing to discuss it with her. The law 

is "clear that . . . purely speculative deficiencies in representation are 

insufficient to justify reversal." Fritz, 105 N.J. at 64; see also State v. Arthur, 

184 N.J. 307, 327-28 (2005). 

Defendant also failed to satisfy the second Strickland prong on her claim 

plea counsel did not discuss the diminished capacity with her. Defendant makes 

no showing that but for plea counsel's alleged error, there is a reasonable 

probability that she would have rejected the plea offer and proceeded to trial, 

and that it would have been rational for her to have done so. See Maldon, 422 

N.J. Super. at 486. The PCR court therefore correctly denied the claim without 

an evidentiary hearing. See Nash, 212 N.J. at 542. 
18 A-0401-19

To the extent we have not expressly addressed any other arguments made 

on defendant's behalf, they are without sufficient merit to warrant discussion in 

a written opinion. R. 2:11-3(e)(2).

Affirmed.