Opinion
No. CV09-4003287-S
March 17, 2011
JUDGMENT
Petitioner seeks relief by the withdrawal of his guilty plea to Unlawful Restraint in the First Degree, C.G.S. § 53a-95(a). In count one, petitioner claims ineffective assistance of counsel. In count two, petitioner claims a due process violation without providing a separate analysis. Trial was held on February 22, 2011. Petitioner's emergency motion to preserve testimony resulted in the court viewing petitioner's testimony via DVD, exhibit #6, and reading his deposition, exhibit #5.
Petitioner's Alford plea to the charge, reduced from Sexual Assault in the First Degree and Conspiracy to Commit Sexual Assault in the First Degree, came on June 20, 2008 and resulted in a sentence of five years suspended after the service of two years followed by five years probation. Petitioner, who is not a citizen of the United States, has since been ordered deported by an immigration judge. Subsequent to petitioner's guilty plea, Padilla v. Kentucky, 08-651 (U.S. 3-31-2010) was released.
Under the first prong of Strickland v. Washington, 466 U.S. 668 (1984), granting petitioner the ruling he seeks would require this court to give full retroactive application to Padilla v. Kentucky, 130 S.Ct. 1473 (2010). Miller v. State, 1907 Md.App. 12-29-2010. Courts have reached different conclusions on the issue of ineffective assistance of counsel. See People v. Garcia, 29 Misc.3d 756 (2010); U.S. v. Bhindar, (S.D.N.Y. 6-30 (2010); Elmour v. Government of the Virgin Islands, (V.I. 1-6-2011); Taylor v. State, 304 Ga.App. 878 (2010) [on issue of lifetime sex offender registration]. Additionally, petitioner's claim that his trial counsel privately told him, ". . . that immigration was not gonna mess with me" is not credible. (Exhibit #5, p. 11). This court finds that both trial counsel's statement to petitioner and his family regarding advice to consult immigration counsel and the trial court's proper canvass belie petitioner's claims. (Exhibit #1, pg. 6).
Even if this court were to apply Padilla v. Kentucky retroactively, petitioner's claim would fail under the second prong of Strickland v. Washington as interpreted in Hill v. Lockhart. 474 U.S. 52, 59 (1985). Petitioner's claim that he would not have pled guilty if he had known the immigration consequence is neither credible nor supported. (Exhibit #5, pg. 11). Petitioner cites no weakness in the state's case, potential defense, more favorable treatment of a co-conspirator, or any other factor which might have induced him to take to trial an alleged gang rape with a potential forty-year sentence. This court finds that petitioner has offered no credible evidence on the "prejudice" prong. See Hill v. Lockhart, 474 U.S. 59 (1985), citing Strickland v. Washington, 466 U.S. 668, 695 (1984).
The Petition is denied.