SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3853-17T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

IBRAHIM S. DAO, a/k/a

ACE S. DAO,

Defendant-Appellant.

__________________________

Submitted October 16, 2019 – Decided

Before Judges Yannotti and Hoffman.

On appeal from the Superior Court of New Jersey, Law 

Division, Camden County, Indictment No. 03-02-0542.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Ruth E. Hunter, Designated Counsel, on the 

brief).

Jill S. Mayer, Acting Camden County Prosecutor, 

attorney for respondent (Natalie A. Schmid 

Drummond, Special Deputy Attorney General/Acting 

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NOT FOR PUBLICATION WITHOUT THE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.

November 22, 2019
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Defendant Ibrahim Dao appeals from the January 26, 2018 Law Division 

order denying his petition for post-conviction relief (PCR) without an 

evidentiary hearing. We affirm. 

I

In 2002, defendant, a non-citizen of the United States and Sierra Leone 

national, was charged with first-degree robbery and other offenses. On May 3, 

2004, defendant pled guilty to third-degree terroristic threats, and on June 18, 

2004, the trial court sentenced him to a term of 364 days in jail. On July 1, 

2004, the court entered a judgment of conviction. Defendant did not make a 

direct appeal.

In May 2014, the United States Department of Homeland Security (DHS) 

advised defendant he was subject to removal from the United States. The DHS 

cited two reasons for defendant's removal: his 2004 conviction, and another 

conviction in 2014 for aggravated assault on a law enforcement officer and 

resisting arrest. 

On May 30, 2017, defendant filed a petition for PCR in the trial court. He 

asserted that the petition was not barred by Rule 3:22-12 even though he filed it 

almost thirteen years after the entry of the judgment of conviction. He claimed 

he was denied the effective assistance of counsel because his plea counsel 
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allegedly misinformed him concerning the immigration consequences of his 

plea. He also contended counsel failed to correct statements concerning his 

immigration status in the plea agreement and presentence report.

On January 26, 2018, Judge Michele M. Fox heard oral argument, and 

then placed a comprehensive oral decision on the record. The judge determined

defendant failed to establish that his failure to file a timely petition was due to 

excusable neglect, or that enforcement of the time bar would result in a 

fundamental injustice. As a result, the judge concluded that Rule 3:22-12 

applied, barring defendant's petition. 

Nevertheless, Judge Fox went on to address the merits of defendant's 

petition and found he had not established a prima facie case of ineffective 

assistance of counsel. The judge explained that when defendant entered his plea, 

the law was unsettled as to whether conviction of terroristic threats under New 

Jersey law could result in deportation under federal law. That issue was not 

definitively resolved by the Third Circuit until 2016. See Javier v. Attorney 

General, 826 F.3d 127, 132 (3d Cir. 2016) (holding that terroristic threats was 

an aggravated felony under 18 U.S.C.A. § 924(e) (2) (B), and a person convicted 

of that offense was subject to removal). 
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Judge Fox found that in 2004, when defendant entered his plea, his 

counsel could not have reasonably anticipated the Third Circuit's ruling. The 

judge also found that defendant was not prejudiced because he failed to show 

that but for the alleged erroneous advice, he would have rejected the plea offer

and proceeded to trial. 

In addition, Judge Fox determined that counsel did not err by failing to 

correct the plea agreement and the presentence report because defendant had not 

provided counsel with detailed information concerning his immigration status. 

The judge further noted that when defendant entered his plea, he told the court 

the statements on his plea form were accurate. The judge also ruled that 

defendant was not entitled to an evidentiary hearing on his petition since he 

failed to present a prima facie case of ineffective assistance of counsel. 

This appeal followed. Defendant presents the following points of 

argument:

 POINT I

THE PCR COURT SHOULD HAVE HELD AN 

EVIDENTIARY HEARING BECAUSE DEFENSE 

COUNSEL MISINFORMED DEFENDANT ABOUT 

IMMIGRATION CONSEQUENCES OF HIS GUILTY 

PLEA. SEE STATE v. NUNEZ-VALDEZ, 200 N. J. 

129, 143 (2009).
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 POINT II

THE TRIAL COURT ERRED IN FINDING THAT 

DEFENDANT'S PCR PETITION WAS TIMEBARRED BECAUSE DEFENDANT FILED HIS PCR 

PETITION WITHIN MONTHS OF DISCOVERING 

THE FACTUAL PREDICATE FOR HIS PCR 

PETITION. SEE R. 3:22-12(a) (2) (B)

We find no merit in these arguments and affirm substantially for the 

reasons stated in Judge Fox's cogent oral opinion. We add the following 

comments.

 II

"A petitioner must establish the right to [post-conviction] relief by a 

preponderance of the credible evidence." State v. Preciose, 129 N.J. 451, 459

(1992). To sustain that burden, the petitioner must set forth specific facts that

"provide the court with an adequate basis on which to rest its decision." State

v. Mitchell, 126 N.J. 565, 579 (1992).

A defendant must prove two elements to establish a PCR claim that trial 

counsel was constitutionally ineffective: first, that "counsel's performance was 

deficient," that is, "that counsel made errors so serious that counsel was not 

functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment";

second, that "there is a reasonable probability that, but for counsel's 

unprofessional errors, the result of the proceeding would have been different." 
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Strickland v. Washington, 466 U.S. 688, 694 (1984); accord State v. Fritz, 105 

N.J. 42, 58 (1987). "A reasonable probability is a probability sufficient to 

undermine confidence in the outcome." State v. Harris, 181 N.J. 391, 432 (2004) 

(quoting Strickland, 466 U.S. at 694). 

When a claim of ineffective assistance follows a guilty plea, a defendant must 

prove counsel's constitutionally deficient representation and also “a reasonable 

probability that, but for counsel's errors, he would not have pleaded guilty and would 

have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59, (1985); accord

State v. DiFrisco, 137 N.J. 434, 457 (1994).

The record indicates the court advised defendant at a pretrial hearing, in 

2003, that his maximum exposure, if convicted on all counts, was a sixty-threeyear prison sentence, forty years to be served without parole. Defendant rejected 

several plea offers before eventually accepting a very favorable plea offer – in 

exchange for pleading guilty to one count of third-degree terroristic threats, the 

State agreed to recommend a sentence of 364 days in the county jail, with no 

probationary term, and the dismissal of all remaining charges. On June 18, 

2004, the court sentenced defendant pursuant to the plea agreement and 

defendant received 447 days of jail credit for time spent in custody. 
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Judge Fox found the record and defendant's contentions failed to establish 

a prima facie case of ineffective assistance of counsel, and, therefore, did not 

warrant an evidentiary hearing. In reaching this conclusion, the judge applied 

Strickland's two-prong analysis. Strickland, 466 U.S. at 694. 

As to prong one, the judge found defendant failed to establish he received 

ineffective assistance because he never fully informed plea counsel of his 

complex immigration status, and plea counsel was not deficient in advising him 

there were no immigration risks to pleading guilty to third-degree terroristic 

threats, at that time. As to prong two, Judge Fox found, notwithstanding plea 

counsel's alleged errors, defendant would still have taken the very favorable plea 

offer. Judge Fox noted the maximum exposure facing defendant if he went to 

trial, and the previous plea negotiations as evidence of defendant's clear 

willingness to reach a satisfactory plea agreement in lieu of proceeding to trial. 

Since defendant failed to establish a prima facie case, Judge Fox 

reasonably exercised her discretion in denying defendant's petition without an 

evidentiary hearing. See State v. Brewster, 429 N.J. Super. 387, 401 (App. Div. 

2013) ("[W]e review under the abuse of discretion standard the PCR court's 

determination to proceed without an evidentiary hearing." (citing State v. 

Marshall, 148 N.J. 89, 157-58 (1997))).
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Affirmed.