Opinion
CV104003350S.
12-07-2012
Emmanuel THIERSAINT v. WARDEN.
UNPUBLISHED OPINION
COBB, J.
The petitioner, Emmanuel Thiersaint, brings this petition for a writ of habeas corpus claiming that his trial attorney was ineffective in failing to advise him that as a result of his conviction for possession with intent to sell narcotics, he would be removed from the United States. He asserts that trial counsel's conduct was constitutionally deficient under the standard announced by the United States Supreme Court in Padilla v. Kentucky, 559 U . S., 130 S.Ct. 1473, 176 L.Ed.2d 285 (2010). The petitioner claims that had he understood the certain immigration consequences of his plea, he would not have pleaded guilty but would have insisted on a trial on the charges. By way of relief, the petitioner seeks an order of this court vacating his conviction and sentence and restoring the cases to the criminal court docket for further proceedings. The court finds the issues for the petitioner and grants the petition.
A trial was held on this habeas petition over three days on April 30, 2012 and May 1 and 2, 2012 during which the petitioner presented a number of witnesses including three expert witnesses, Anthony D. Collins, an immigration law expert, Christopher Caldwell, a private attorney who represents noncitizens in state court, Michele Karshan, an expert on the conditions in Haiti, the petitioner and the petitioner's trial counsel, Jack Imhoff. The petitioner also introduced a number of exhibits. The respondent did not offer the testimony of any witnesses, experts or otherwise, except the testimony of trial counsel which he offered through cross examination. Both parties filed post-trial briefs. Based on the evidence produced at the hearing, the court finds the following facts:
In 1994, when the petitioner was fourteen years old, he left his native country of Haiti with his father and came to the United States. He entered the United States legally, with a " green card" and thus held a status as a permanent resident of the United States. He has lived in the United States for almost two decades, since 1994, and attended high school here. He has no relatives in Haiti.
A few years after the petitioner arrived in the United States, he was in a serious car accident, during which he was critically injured. As a result of his injuries, the petitioner had to have his right leg amputated above the knee and since that time has required either prosthesis to walk or a wheelchair to get around. In Haiti, persons with disabilities are treated as outcasts due to the belief of many Haitians that a person becomes disabled due to his/her bad acts or the bad acts of his/her family members or ancestors. Therefore, persons with disabilities living in Haiti are shunned by society and sometimes their own families. There is little or no healthcare available for such persons.
After the petitioner's accident, he spent eight months in the hospital, where he was given a number of drugs for his injuries. After leaving the hospital, the petitioner developed a drug addition to crack cocaine. The petitioner has not used illegal drugs for several years. He presently lives with his girlfriend of seven years and their young daughter. His girlfriend suffers from seizures, and requires his assistance.
On September 20, 2006, the petitioner was arrested and charged in two separate cases with the following charges in both cases: (1) sale of narcotics in violation of General Statutes § 21a-278(b); (2) sale of narcotics within 1500 feet of a school in violation of General Statutes § 21a-278a(b); (3) possession of narcotics in violation of General Statutes § 21a-279(a); and (4) possession of narcotics within 1500 feet of a school in violation of General Statutes § 21a-279(d). The charges stemmed from two $20 sales of crack cocaine by the petitioner to an undercover police officer. At the time of his 2006 arrest, the petitioner was on probation, having been convicted after a plea of possession of a controlled substance in violation of General Statutes § 21a-279(a). As condition of his probation, the court ordered " substance abuse evaluation and treatment."
The 2006 information includes a separate count of conspiracy under § 53a-48, but does not indicate a criminal charge to which the petitioner was charged with conspiring to commit.
The petitioner was arraigned on the new charges on September 29, 2006, at which time he pleaded not guilty. The petitioner could not make the bond set by the court and therefore, remained incarcerated during the pretrial proceedings in this case. Because he could not afford his own attorney, special public defender Jack Imhoff was appointed to represent him.
Attorney Imhoff is an experienced criminal defense attorney. In 2006, Attorney Imhoff had a state contract to represent indigent criminal defendants for a fee. In the petitioner's case, Attorney Imhoff was paid $250, which covered his fee for all of the pretrial proceedings in this case. When Attorney Imhoff was appointed to represent the petitioner, he knew the petitioner was from Haiti, and had entered the United States legally.
Although the petitioner's record evinced a possible substance abuse history, Attorney Imhoff did not seek to have the petitioner evaluated for substance abuse. Also, even though the diversionary program known as CADAC under General Statutes § 17a-696, was available to the petitioner, Attorney Imhoff did not pursue it because he did not believe the court would grant the program.
Attorney Imhoff engaged in plea negotiations with the state's attorney and the court and ultimately received a court offer of seven (7) years suspended after two (2) years followed by five (5) years' probation with no mandatory minimums on all charges if he pled to one count of possession with intent to sell under General Statutes § 21a-277(a). During the plea negotiations, Attorney Imhoff asked the state to reduce the charge to possession only, but the state declined because the petitioner had sold drugs to an undercover police officer. Attorney Imhoff did not raise the issue of a reduction in the charge to possession with the court during the supervised pretrial. In seeking a reduction of the charge to possession, Imhoff did not explain to the state or the court that the petitioner was subject to mandatory deportation or suggest that the charge be reduced in exchange for the petitioner agreeing to do more prison time on the reduced charge.
The petitioner testified that Attorney Imhoff met with him approximately five times in the holding cells in the Norwalk courthouse, and did not advise him regarding the immigration consequences of his plea. Attorney Imhoff testified that he told the petitioner that he should consult with an attorney knowledgeable in immigration law regarding the immigration consequences of the plea, as well as any post-conviction immigration proceedings. Even though the petitioner was incarcerated and indigent, Attorney Imhoff did not obtain an immigration lawyer for the petitioner to consult with nor did he himself consult with such an attorney on the petitioner's behalf.
Had Attorney Imhoff consulted with an immigration attorney, he would have been advised to avoid any conviction that would constitute an " aggravated felony" at all costs because a conviction under § 21a-277(a) would constitute an aggravated felony that would subject the petitioner to mandatory detention and deportation and bar him from asserting legitimate defenses to removal. Had he consulted with an immigration attorney, Attorney Imhoff would have also learned about the inhumane conditions that the petitioner would have been exposed to had he been removed to Haiti, as it was common knowledge to immigration attorneys that Haitian criminal deportees would be detained in deplorable conditions.
Despite believing that the petitioner needed separate counsel knowledgeable in immigration matters to advise the petitioner regarding the immigration consequences of the plea offer, Attorney Imhoff nonetheless claims to have advised the petitioner regarding these issues. Although Attorney Imhoff could not recall precisely what he told the petitioner, what he could recall evinces that he gave the petitioner differing, unspecific and incorrect advice, all of which left room for the petitioner to believe that he could contest his removal. Attorney Imhoff told the petitioner that he would " probably" have to deal with immigration after his state criminal proceedings concluded that he would have an immigration hearing " and if you have a hearing there is some chance you might win, but I thought it was very unlikely, " and " it'd be very difficult not to be deported."
Attorney Caldwell testified that this advice did not conform to the obligation of a reasonably competent defense counsel in Connecticut in 2007, because Imhoff should have told him that " It would be impossible. Most likely be deported or— is not the question. He absolutely would be deported ... It was an absolute certainty. He could not [win]. Absent a change in the immigration— a retroactive change in the immigration law, there was no way for him to stay here once they put a hold on him and brought immigration proceedings against him."
Attorney Imhoff did not tell the petitioner that because his plea to the charge of possession with intent to sell under § 21a-277(a) would result in a conviction of an aggravated felony under federal law, that he would not return home because he would be mandatorily detained pending deportation after his sentence was completed, that he would have no legitimate defenses to deportation, that deportation was a virtual certainty, and that after being deported, he would be permanently barred from returning to the United States.
On April 9, 2007, the petitioner pleaded guilty to possession with intent to sell in violation of General Statutes § 21a-277(a) and received a sentence of seven (7) years suspended after two (2) years, followed by five (5) years of probation. The petitioner was canvassed by the court as to his decision to plead guilty. During the canvass, the court asked the petitioner, pursuant to General Statutes § 54-1j, if he understood " that if you're not a citizen of the United States of America, then a conviction for the offense may have the consequence of deportation, exclusion from readmission to this country, or denial of naturalization pursuant to the laws of this country." The petitioner responded that he understood.
Had the petitioner known that he faced certain and permanent removal from the United States when he pleaded guilty to the charge of possession with intent to sell, he would not have pleaded guilty but would have insisted on going to trial. The petitioner would prefer a long jail sentence in the United States rather than suffer permanent banishment from the United States to Haiti.
Immediately upon being released from state prison on September 18, 2008, the petitioner was taken into custody by the Unites States Immigration and Customs Enforcement Agency (ICE), and the United States commenced deportation/removal proceedings against him. The basis of the removal order was the state court conviction for possession of narcotics with intent to sell, and a 2004 conviction for possession of a controlled substance.
On February 27, 2009, the petitioner's application for deferral of removal under the Convention Against Torture, the only defense available to the petitioner, was denied and the petitioner was ordered removed from the United States and returned to Haiti. The petitioner appealed removal order to the Board of Immigration Appeals, which dismissed it on May 27, 2009. Based on the changed country conditions in Haiti in the wake of the January 2010 earthquake, the petitioner filed a motion to reopen his removal proceedings on August 2, 2011. That motion was denied on September 19, 2011.
To prevail on a claim under the Convention Against Torture, the petitioner would have to prove that he would be " tortured" upon returning to Haiti. 8 C.F.R. § 1208.16(c), 1208.8(a). Torture requires intentional acts not merely substandard conditions.
The petitioner filed petitions for review of both the removal order and the denial of the motion to open to the United States Court of Appeals for the Second Circuit which consolidated both matters and denied them both on February 28, 2012. Thus, the petitioner has exhausted his federal challenges to the order of removal, and is subject to a final removal order. However, due to the physical conditions in Haiti stemming from natural disasters, deportations to that country have been temporarily deferred. The petitioner remains in the United States and has been released from federal custody, but is subject to a final order of removal and may be removed at any time.
Attorney Imhoff claims to have known that a conviction under § 21a-277(a) was an " aggravated felony" under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA or the " Act"). This fact is clear under the Act, which provides that a conviction for " illicit trafficking in a controlled substance" is an " aggravated felony" under the definitions contained in 8 U.S.C § 1101(a)(43)(b) of the Act. In addition, in August 2003, the United States Court of Appeals for the Second Circuit specifically held that a conviction under General Statutes § 21a-277(a), possession with intent to sell, constitutes a conviction for " illicit trafficking in a controlled substance" and is therefore an aggravated felony under the Act. Gousse v. Ashcroft, 339 F.3d 91 (2nd Cir.2003).
Prior to 1996, even crimes that were considered aggravated felonies for federal immigration purposes were considered waiveable in that a detainee could apply for a waiver from deportation. That waiver application would be heard by an immigration judge who had the discretion to allow the individual to remain in this country. Waivers were routinely granted under the old law.
Attorney Imhoff had participated in seminars on representing noncitizen defendants, including one held in 2006 and sponsored by the public defender's office. He was provided with a manual entitled, A Brief Guide to Representing Non-Citizen Criminal Defendants in Connecticut, which provided guidance specific to representing non-citizen criminal defendants in Connecticut. The manual specifically and clearly indicates that § 21a-277(a), possession with intent to sell, is an " aggravated felony, " which it states is the " worst category of criminal offenses for immigration purposes."
Even if Attorney Imhoff knew that a conviction under § 21a-277(a) constituted an aggravated felony under the Act, the court finds that he had an insufficient understanding of the clear and certain immigration consequences of such a conviction. Had Attorney Imhoff understood the consequences, he would not have thought it necessary to advise the petitioner to retain another lawyer better versed in immigration law.
The immigration consequences resulting from a conviction for an aggravated felony are clear under the Act. A noncitizen who has been convicted of an aggravated felony is subject to automatic deportation and mandatory detention and is ineligible to seek relief under the primary defenses to removal such as cancellation of removal, withholding of removal or asylum, and is permanently barred from returning to the United States. 8 U.S.C. § 1229b. A conviction for simple possession is not an aggravated felony, and although it is a deportable offense, a defendant is eligible for cancellation of removal. 8 U.S.C. §§ 1101(a)(43), 1229b(a)(3).
The only defense available to the petitioner was the Convention Against Torture, which requires that the noncitizen prove that he would be intentionally targeted by Haitian authorities for torture.
In addition, to the extent that Attorney Imhoff was unaware of the immigration consequences to the petitioner in this case, he could have conducted research or reviewed the public defender's manual which he received that provided that: " when a noncitizen's conviction falls into this category, the consequences are severe: the individual will face mandatory detention and almost certain deportation and will be ineligible for virtually all forms of relief. In addition, if the noncitizen returns illegally to the United States, he or she will face criminal penalties of up to 20 years in federal prison."
The petitioner's expert witnesses, Attorneys Collins and Caldwell, testified that in 2007, when the petitioner entered his plea, a reasonably competent defense counsel representing a noncitizen in Connecticut had a duty to avoid any conviction involving an aggravated felony, including all crimes involving selling drugs. Defense counsel also had a duty to inform a noncitizen defendant that if he pleaded guilty to such a crime, after the completion of his Connecticut sentence, he would not be released but would be turned over to federal immigration authorities and mandatorily detained pending deportation proceedings, that there was no legitimate defense to removal, that he would ultimately be removed from the United States and returned to his country of origin, and that he would be permanently barred from returning to the United States. Both Attorneys Caldwell and Collins testified that if defense counsel were uncertain or unaware of the immigration consequences of a plea that they had a duty to consult with counsel knowledgeable in the area. In fact, Attorney Collins testified that he receives calls routinely from attorneys regarding the consequences of a particular plea. Both experts also opined that this consultation was the responsibility of defense counsel and should not be left to the defendant, particularly where the defendant is indigent and incarcerated.
There are two primary defenses to removal under federal law, cancellation of removal and withholding of removal. Cancellation of removal, when allowed, is a one-time opportunity for persons convicted of " deportable" offenses, not aggravated felonies, to avoid removal from the United States. When permitted, the criminal detainee must show that he meets certain criteria, including that he has been a permanent resident of the United States for at least five years or has had a continuous presence in this country for seven years, that he has significant family ties in the United States, a serious medical condition, that a United States citizen or permanent resident depends on him, that he is employed, and that the conditions of his country of origin make it difficult to return there. The federal immigration judge then weighs the defendant's criminal record against whether the defendant had been rehabilitated and has taken responsibility for his actions. Petitioner's expert witness, Attorney Anthony Collins, opined that given the petitioner's circumstances, including his physical disability, the conditions in Haiti, his family ties to this, he would have had a " very strong case" and " overwhelming equities in his favor" in seeking a cancellation of removal had he not been convicted of an aggravated felony. This is true even though the petitioner had a prior possession conviction, because his criminal record was not lengthy. Attorney Collins testified, under questions by the respondent's counsel and the court, that the petitioner's prior conviction for simple possession, which is a " deportable" offense, would not have made him ineligible to seek cancellation of removal on the new charges. All the charges would simply be included in a single application and all of those convictions could have been waived. As to a defense of withholding of removal, the detainee must establish that he fears returning to his country of origin due to his race, religion, political opinion or membership in a particular social group and that there is greater than a fifty percent chance that he would be persecuted if returned to his native country. A detainee is ineligible to seek withholding of removal asylum if he has been convicted of a trafficking offense, and received a sentence of more than five years in prison. For purposes of this calculation, it is the time of incarceration, not the suspended portion that controls.
Both attorney experts in this case indicated that when representing noncitizen defendants, counsel should seek to obtain dispositions that do not include aggravated felonies and explain the defendant's immigration status and consequences, including inhumane country conditions, to the prosecutor and judge during plea negotiations. Defense counsel should determine if there are any defenses to the charge. For example, if the defendant claims to be drug dependent or the records evinces drug dependence, his attorney should have him evaluated, which was not done here. Such information can be used to pursue diversionary programs, in plea negotiations or at trial. In addition, defense counsel representing a noncitizen should suggest alternative dispositions during plea negotiations, including a counteroffer that would require the petitioner to do more jail time in exchange for pleading to a different or reduced charge that would not constitute an aggravated felony. If such an offer is refused by the state, the petitioner has nothing to lose by staying in prison obtaining additional jail credit, and holding out for a better offer prior to trial or ultimately risking a trial. Both attorney experts testified that they have had success negotiating on behalf of non-citizens in this fashion.
Attorney Collins testified that it is incumbent upon defense attorneys to know the conditions of the non-citizen's country of origin so that they can advise defendants as to the country conditions if the defendant was removed to his native country. According to Attorney Collins, it is common knowledge that Haitian deportees are detained indefinitely under inhumane conditions, particularly for persons, like the petitioner, who have medical conditions and physical disabilities.
In April 2007, when the petitioner entered his plea, conditions in Haiti for criminal deportees were deplorable, particularly for persons with physical disabilities. Prior to 2006, deportations had been suspended, but after the election of a new president in 2006, deportations to Haiti resumed with a significant back log having been created. In 2006 and 2007, criminal deportees were generally held in the national penitentiary or local police station holding cells for between two to eight months. Deportees convicted of drug offenses were generally detained longer. The purpose of detaining criminal deportees was to punish them and teach them a lesson, and to establish to United States officials that Haiti takes drug trafficking seriously.
Police holding cells are approximately ten feet by ten feet in size, and hold twenty to sixty detainees at a time. The cells are empty and contain no furniture, mats, beds or toilets. Detainees are given communal buckets to urinate in and bags to defecate in. Cells are not air conditioned or ventilated and generally reach temperatures of 100 degrees. Rodents and insects are prevalent. Detainees are not provided food or treated water but must rely on relatives to bring them food and water. If a detainee does not have relatives to bring them food or water, he must rely on other detainees and their families. Detainees are not allowed out of the cells except for short periods to bathe. Due to these conditions, detainees often develop illnesses such as dysentery, scabies, malaria, and typhoid, and the government provides no medical care whatsoever in prison. Many detainees die as a result of these unhealthy conditions. Conditions at the national penitentiary were not significantly better.
Persons with physical disabilities are treated more harshly. Haitians believe that disabled persons are to blame for their disabilities and are treated as outcasts in prison and in society generally. An amputee, like the plaintiff, would not be provided a wheel chair or prosthesis in the holding cells, or any medical treatment or medications.
These prison conditions were well known as they were reported on in United States State Department country reports on human rights and the national press.
To obtain release from detention, a detainee's family would have to come forward and take responsibility for him or the family would have to pay to have their relative released. If a detainee had no family or could not pay a fee, they remained detained indefinitely.
A. Standard
It is well established that a criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of a criminal proceeding. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. Baez v. Commissioner of Correction, 34 Conn.App. 236, 242-43, 641 A.2d 147, cert. denied, 231 Conn. 905, 906, 648 A.2d 149 (1994).
The United States Supreme Court has explained that: " The reality is that plea bargains have become so central to the administration of the criminal justice system that defense counsel have responsibilities in the plea bargain process, responsibilities that must be met to render the adequate assistance of counsel that the Sixth Amendment requires in the criminal process at critical stages. Because ours ‘ is for the most part a system of pleas, not a system of trials' Lafler, post, at 11, it is insufficient simply to point to the guarantee of a fair trial as a back stop that inoculates any errors in the pretrial process. ‘ to a large extent ... horse trading [between prosecutor and defense counsel] determines who goes to jail and for how long. That is what plea bargaining is. It is not some adjunct to the criminal justice system; it is the criminal justice system.’ ... In today's criminal justice system, therefore, the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant." Missouri v. Frye, 566 U.S. (2012).
It is because of the importance of pretrial negotiations to our system of justice that the United States Supreme Court has recently held that pretrial negotiations implicating the decision as to whether to plead guilty are a critical stage in criminal proceedings for purposes of the Sixth Amendment right to effective assistance of counsel. Padilla v. Kentucky, supra, at 559 U.S.; Missouri v. Frye, supra, at 566 U.S.; Lafler v. Cooper, 566 U.S. (2012). " In today's criminal justice system, therefore, the negotiation of a plea bargain, rather than the unfolding of a trial is almost always a critical point for a defendant." Missouri v. Frye, supra, at 566 U.S.
Because the plea bargaining process is a critical stage in a criminal proceeding, " criminal defendants require effective assistance of counsel during plea negotiations." Missouri v. Frye, supra, at 566 U.S.; Lafler v. Cooper, supra, at 566 U.S. " Anything less ... might deny a defendant ‘ effective representation by counsel at the only stage when legal aid and advice would help him.’ " Missouri v. Frye, supra, at 566 U.S. (internal quotations omitted).
" Although this decision [to plead guilty] is ultimately made by the defendant, the defendant's attorney must make an informed evaluation of the options and determine which alternative will offer the defendant the most favorable outcome. A defendant relies heavily upon counsel's independent evaluation of the charges and defenses, applicable law, the evidence and the risks and probable outcome of a trial. The right to effective assistance of counsel includes an adequate investigation of the case to determine facts relevant to the merits or to the punishment in the event of conviction. Siemon v. Stoughton, 184 Conn. 547, 556 n. 3, 440 A.2d 210 (1981)." Copas v. Commissioner, 243 Conn. 139, 154, 662 A.2d 718 (1995).
It is now clear, after the United States Supreme Court's decision in Padilla v. Kentucky, supra, at 559 U.S., that the Sixth Amendment right to counsel applies to require counsel representing noncitizen criminal defendants to advise them concerning the immigration consequences of their pleas. This is because " recent changes in our immigration law have made removal nearly an automatic result for a broad class of noncitizen offenders." Padilla v. Kentucky, supra, at 559 U.S. " The importance of accurate legal advice for noncitizens accused of crimes has never been more important. These changes [in federal immigration law] confirm our view that, as a matter of federal law, deportation is an integral part— indeed, sometimes the most important part— of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes." Id. Thus, in Padilla, the Supreme Court held that " advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel. Strickland applies to Padilla's claim." Id. Thus, counsel " must advise her client regarding the risk of deportation." Id.
Because this case involves an ineffective assistance claim involving a guilty plea it is governed by the standard of Strickland v. Washington, supra, 466 U.S. at 686 as modified by Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). Under Strickland, supra, to establish his claim of ineffective assistance, the petitioner has the burden to show that " (1) counsel's representation fell below an objective standard of reasonableness, and (2) counsel's deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance." (Emphasis in original.) Johnson v. Commissioner of Correction, 285 Conn. 556, 575, 941 A.2d 248 (2008). See also, Copas v. Commissioner, supra, 234 Conn. at 139.
The Connecticut Supreme Court has explained that: " The first prong requires a showing that ‘ counsel made errors so serious that counsel was not functioning as the ‘ counsel’ guaranteed the defendant by the [s]ixth [a]mendment.' " Johnson v. Commissioner, supra, 285 Conn. at 576, quoting Strickland v. Washington, supra, 466 U.S. at 687. With respect to the prejudice prong applied to claims of ineffective assistance when the conviction resulted from a guilty plea, the Supreme Court modified the test in Hill v. Lockhart, supra, 474 U.S. at 56 to require the petitioner to demonstrate " that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial." Johnson v. Commissioner of Correction, supra, 285 Conn. at 576, quoting Hill v. Lockhart, supra, 474 U.S. at 59; Copas v. Commissioner, supra, 234 Conn. at 163.
B. Retroactivity of Padilla v. Kentucky
Because the petitioner's plea and conviction occurred prior to the Supreme Court's decision in Padilla v. Kentucky, supra, at 559 U.S., this court must decide if that decision should be applied retroactively to this case. This court has already had occasion to rule on the issue of whether Padilla v. Kentucky should be applied retroactively and has held that is retroactive. Bakrina v.. Warden, Docket No. 114004238S, Judicial District of Tolland (April 12, 2012, Cobb, J.) [ 53 Conn. L. Rptr. 889]. In Bakrina v. Warden, this court found that:
In Padilla v. Kentucky, 559 U.S., 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), the United States Supreme court held that trial counsel " must inform her client whether his plea carries a risk of deportation." The court explained that: " [R]ecent changes in our immigration law have made removal nearly an automatic result for a broad class of noncitizen offenders." " The importance of accurate legal advice for noncitizens accused of crimes has never been more important ... [A]s a matter of federal law, deportation is an integral part— indeed, sometimes the most important part— of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes." The Supreme Court concluded that: " When the law is not succinct and straightforward ..., a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear, ... the duty to give correct advice is equally clear." Id., 11-12.
Since Padilla was decided on March 31, 2010, more than two years after the petitioner plead guilty in this case, the court must decide the threshold question of whether the Supreme Court's holding in Padilla is retroactive and applicable to this case. The court concludes that the Padilla court majority intended that its decision be applied retroactively.
The Supreme Court in Padilla v. Kentucky, supra, did not address the issue of the retroactivity of the decision, and that Court has yet to resolve the issue. Courts across the country that have addressed the issue are split as to whether the holding in Padilla v. Kentucky is retroactive. Neither the Connecticut Supreme nor Appellate Courts have had occasion to decide the issue of retroactivity, nor has the Second Circuit Court of Appeals. Although other Connecticut state habeas courts have been presented with Padilla claims, those courts have, for various reasons, resolved those cases without the necessity of addressing the retroactively issue. Quiroga v. Warden, Judicial District of Tolland, Docket No. 11-4004067, (February 16, 2012, Cobb, J.), reargument denied, (February 24, 2012) (petitioner failed to show that his counsel's performance was deficient); Zavala v. CSSD Office of Adult Probation, Superior Court, judicial district of Tolland, Docket No. CV10 4003992 (Nov. 7, 2011, Sferrazza, J.) (2011 Ct.Sup. 23240) [ 52 Conn. L. Rptr. 852] (failure to show prejudice); Williams v. Warden, Superior Court, judicial district of Tolland, Docket No. CV10 4003422 S (Oct. 3, 2011, Bright, J.) (2011 Ct.Sup. 21149) (failure to show deficient performance and prejudice); Zuberi v. Warden, Superior Court, judicial district of Tolland, Docket No. CV 09 4003118 (April 15, 2011, T. Santos, J.) (2011 Ct.Sup. 9567) (failure to show both deficient performance and prejudice); Colas v. Warden, Superior Court, judicial district of Tolland, Docket No. CV CV09-4003287 (March 17, 2011, Mullarkey, J .) (2011 Ct.Sup. 7269) (failure to show prejudice). Thus, this is an issue of first impression for this court.
The petitioner urges this court to adopt the view annunciated by the Third Circuit Court of Appeals in United States v. Orocio, 645 F.3d 630, 643 (3rd Cir.2011), that Padilla did not establish a ‘ new rule, ’ particularly in Connecticut where a court advisement regarding the immigration consequences of a plea has been required for two decades, and therefore, can be applied retroactively to this case. See General Statutes § 54-1j. The respondent urges this court to follow the decisions of the Seventh and Tenth Circuit Courts of Appeals and other courts that have concluded that Padilla announced a ‘ new rule’ of constitutional criminal procedure and under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), such a new rule cannot be applied retroactively to this case. See Chaidez v. United States, 655 F .3d 684 (7 Cir.2011); United States v. Chang Hong, (10th Cir.2011).
The Connecticut Supreme Court has followed Teague v. Lane, supra, 489 U.S. at 288 in deciding whether a constitutional principle may be applied retroactively in criminal cases on collateral review. Duperry v. Solnit, 261 Conn. 309, 318-19, 803 A.2d 287 (2002); Johnson v. Warden, 218 Conn. 791, 797, 591 A.2d 407 (1991); Larkin v. Commissioner of Correction, 45 Conn.App. 809, 814-15, 699 A.2d 207 (1997). In Teague v. Lane, 489 U.S. 288, the Supreme Court clarified that a criminal defendant seeking to collaterally attack a conviction may not rely on a new constitutional rule of criminal procedure identified only after the date of the conviction became final. A rule is ‘ new’ ‘ if the result was not dictated by precedent existing at the time the defendant's conviction became final.’ United States v. Orocio, 645 F.3d 637, quoting Teague v. Lane, 489 U.S. 301. " By contrast, an ‘ old rule, ’ applies on both direct and collateral review and applies an old rule in a new context. See Whorton v. Bockting, 549 U.S. 406, 416, 127 S.Ct. 1173, 167 L.Ed.2d 1 (2007)." Id., 637. A " new rule" may only be applied retroactively to cases on collateral review if one of two exceptions apply: (1) the new rule places certain kinds of criminal conduct beyond the power of the criminal lawmaking authority to proscribe; or (2) the new rule is a " water-shed rule [ ] of criminal procedure" that " alter[s] our understanding of the bedrock procedural elements that must be found to vitiate the fairness of a particular conviction." Teague v. Lane, supra, 489 U.S. at 311 (emphasis in original) (internal quotation marks omitted). Thus, if Padilla, supra, did not announce a " new rule" but merely applied an old rule in a new context then the petitioner is entitled to invoke the protection of Padilla even though his conviction had achieved finality prior to Padilla. However, if Padilla announced a " new rule, " then the petitioner would have to show that it falls within one of the two Teague v. Lane exceptions.
Since Teague v. Lane, supra was decided, the Supreme Court decided Danforth v. Minnesota, 552 U.S. 264, 128 S.Ct. 1029, 169 L.Ed.2d 189 (2008), in which it explained that its decision in Teague v. Lane, was " tailored to the unique context of federal habeas and therefore had no bearing on whether States could provide broader relief in their own post conviction proceedings than required by that opinion." The Supreme Court found that the rule in Teague v. Lane was " intended to limit the authority of federal courts to overturn state convictions— not to limit a state court's authority to grant relief for violations of new rules of constitutional law when reviewing its own State's convictions." Id. Since no Connecticut appellate court has ruled on the Padilla retroactively question or determined whether a broader standard for assessing retroactivity in this context other than Teague v. Lane, supra, the court applies the Teague standard to this case.
The court is persuaded by the analysis contained in federal and state cases holding that the Padilla holding does not constitute a " new rule" but rather is an extension of the Strickland standard, and therefore may be applied retroactively. See United States v. Orocio, 645 F.3d 630, 643 (3rd Cir.2011); United States v. Chaidez, 730 F.Supp.2d 896 (N.D.Ill., 2010); Marroquin v. United States, 2011 U.S.Dist. LEXIS 11406 (S.D.Tex.2011); Commonwealth v. Clarke, 460 Mass. 30 (2011). Because this court's decision is expedited, it does not set forth all of the arguments in support of applying Padilla retroactively, but refers the parties to the cases cited herein.
Suffice it to say that this court is persuaded by language in, and not in, the Padilla decision that evinces that Court's intent that the decision be applied retroactively. First, the Padilla Court does not state that its holding is a " new rule" that is only to be applied to future cases, and applied its holding in that case. The Supreme Court generally eschews applying a " new rule, " intended to be applied retroactively only to the case in which the new rule is announced. See Teague v. Lane, 489 U.S. 302-03. Had the court in Padilla established a truly new rule meant to be applied prospectively only, it likely would not have applied the new rule in that case. United States v. Chaidez, supra, 730 F.Supp.2d at 903. However, it did apply its holding to Padilla's case thus evincing the Padilla Court's intent that the case be applied retroactively.
In addition, in Padilla, the Court applied the well established Strickland standard in rendering its holding in that case and in doing so, discussed and applied well established " professional norms" on the necessity and importance of criminal defense counsel to advise their clients on the immigration consequences of their pleas. Padilla v. Kentucky, supra, at 9-11. In particular, the court stated: " It is quintessentially the duty of counsel to provide her client with available advice about an issue like deportation and the failure to do so ‘ clearly satisfies the first prong of the Strickland analysis' " Id. 13, quoting Hill, 474 U.S. 52, 62 (1985).
Also, the Padilla Court expressly rejected the Solicitor General's argument that the decision would open the " floodgates" to habeas petitions claiming ineffective assistance of counsel related to advice on immigration consequences, stating: " It seems unlikely that our decision today will have a significant effect on those convictions already obtained as a result of plea bargains. For at least the past 15 years, professional norms have generally imposed an obligation on counsel to provide advice on the deportation consequences of a client's plea." Padilla, supra, at 15 (emphasis added.) By this language, the Padilla Court acknowledged that its holding will be applied in cases, like this one, in which convictions have been obtained by way of a plea agreement. However, the Court appears to suggest that since the professional norms across the country are such the counsel generally provides such advice concerning immigration consequences, there is not likely to be a " floodgates" problem.
Finally, since the enactment of General Statutes § 54-1j, criminal courts in Connecticut have included as part of their plea canvasses an advisement that " if the defendant is not a citizen of the United States, conviction of the offense for which the defendant has been charged may have the consequences of deportation or removal from the United States, exclusion from readmission to the United States or denial of naturalization, pursuant to the laws of the United States." " [T]he statute, on its face, turns on communication between the defendant and his attorney about immigration consequences." State v. Hall, 303 Conn. 527, 535 (2012). Pursuant to § 54-1j, " [i]f the defendant has not discussed these possible consequences with the defendant's attorney, the court shall permit the defendant to do so prior to accepting the defendant's plea." In determining whether a defendant understands the possible immigration consequences of a plea, the court may justifiably rely on representations of defense counsel that he or she has explained such consequences to the defendant. State v. Hall, supra, 303 Conn. at 525 (Absent some indication to the contrary, a court is entitled to rely on counsel's representations on behalf of his or her client"). " Clearly, then, based on the text of the statute, the legislature was primarily concerned with ensuring that defendants engage in a conversation with their counsel, not the court, regarding the immigration consequences of guilty pleas." Id., 536. (Emphasis added.)
The existence and application of § 54-1j is further evidence of an established professional norm in this state, that the defendant's counsel discuss the immigration consequences of his plea with the defendant. Such a practice, while statutory, constitutes additional support for the view that, at least in Connecticut, the requirement that counsel advise his or her client regarding the immigration consequences of a plea agreement is not a " new rule" that breaks new ground.
Accordingly, for the foregoing reasons, the court finds that the decision in Padilla may be applied retroactively to this case.Bakrina v. Warden, Docket No. 114004238S, Judicial District of Tolland (April 12, 2012, Cobb, J.) (footnotes included).
United States v. Orocio, 645 F.3d 630 (3d Cir.2011) (Padilla not a new rule); United States v. Hong, 10-6294 (10th Cir.9-1-2011) ( Padilla established a new rule); Chaidez v. United States, 655 F.3d 684 (7th Cir.2011) ( Padilla established a new rule). The respondent's brief includes additional cases from other states and federal courts finding both that the Padilla case is and is not retroactive.
As recently as January 1, 2012, the Second Circuit " express[ed] no opinion as to the merits of any challenge Hill could bring to his state conviction under Padilla, 130 S.Ct. 1473, whether as a habeas action, a writ of audita querela, a writ of error coram nobis, or on some other ground. We note only that it is an open question in this circuit whether the rule articulated in Padilla applies retroactively and that our sister circuits have reached divergent conclusions on this issue. Compare United States v. Orocio, 645 F.2d 630, 640-42 (3d Cir.2011) (holding that Padilla is retroactively applicable on collateral review), with Chaidez v. United States, 655 F.3d 684, 687-94 (7th Cir.2011) (holding that Padilla announced a ‘ new rule’ under Teague v. Lane, 489 U.S. 288 (1989), and, as such, does not apply retroactively)." Hill v. Holder, 10-1791, n. 2 (2nd Cir.2012). Federal district courts in the Second Circuit addressing the retroactivity of Padilla have not held that Padilla applies retroactively. Rosales v. Artus, No 10-CV-2742 (E.D.N.Y. Aug. 30, 2011) (to extend Padilla recognized a new rule, does not apply retroactively to cases on collateral review); Ellis v. United States, 806 F.Supp.2d 538 (E.D.N.Y. June 3, 2011) (nothing in Padilla indicates it is to be applied retroactively); United States v. Obonaga, 10-CV-2951 (E.D.N.Y. June 30, 2010) (assumes Padilla applies retroactively). These decisions are not binding on this court.
Because all of the petitioner's immigration appeals have been exhausted, the petitioner could be deported any day.
In Padilla, the Supreme Court found it significant that Connecticut and other states already require that court canvasses include a warning regarding possible immigration warnings and cites to § 54-1j. 599 U.S., n. 15, along with other similar statutes in other states [sic].
The court notes that the issue of whether Padilla v. Kentucky is retroactive is presently before the United States Supreme Court. Chaidez v. United States, 655 F.3d 684 (7th Cir.2011), cert. granted, 2012 WL 1468539 (U.S. Apr. 30, 2012). Chaidez was argued before the United States Supreme Court on November 1, 2012.
The court sees no reason to depart from its prior analysis on the issue of the retroactivity of Padilla v. Kentucky, supra, at 559 U.S.
The respondent's assertion in his post-trial brief that this court asked the parties to " presume" that Padilla's holding is retroactive and applies to this case, is inaccurate. This court provided the parties with its prior decision in which it found that Padilla's holding is retroactive. The court specifically told the respondent that despite the court's prior holding on retroactivity, it would keep an open mind on the issue if the respondent wished to raise any additional arguments. Bakrina v. Warden, Docket No. 114004238S, Judicial District of Tolland (April 12, 2012, Cobb, J.). The respondent has chosen not to address the retroactivity issue in its post-trial brief, and therefore, this court sees no reason to revisit its prior holding on this issue of retroactivity.
C. Performance Prong
Having found that the decision in Padilla v. Kentucky, supra, may be applied retroactively to this case, the court must decide whether the petitioner has established that counsel's conduct fell below the objective standard of reasonableness. Strickland v. Washington, supra, 466 U.S. at 687. The court finds that the petitioner has met his burden to show that his counsel's conduct was constitutionally deficient.
In Padilla v. Kentucky, supra, at 559 U.S. the Supreme Court stated that: " [t]he severity of deportation— ‘ the equivalent of banishment or exile, ’ ... only underscores how critical it is for counsel to inform her noncitizen client that he faces a risk of deportation." Id. (Internal citation and footnote omitted.) " Preserving the client's right to remain in the United States may be more important to the client than any potential jail sentence ... Likewise, we have recognized that ‘ preserving the possibility of discretionary relief from deportation ... would have been one of the principal benefits sought by defendants deciding whether to accept a plea offer or instead to proceed to trial ... We expected that counsel who were unaware of the discretionary relief measures would follo[w] the advice of numerous practice guides to advise themselves of the importance of this particular form of discretionary relief." Id. (Internal citations and quotations omitted.) The Supreme Court concluded that it is therefore, " quintessentially the duty of counsel to provide her client with available advice about an issue like deportation and the failure to do so ‘ clearly satisfies the first prong of the Strickland analysis.’ "
In assessing trial counsel's performance in advising noncitizen defendants, the Supreme Court in Padilla annunciated a two-tiered analytical framework, the application of which depends on whether the immigration consequences are " truly clear" under the law or whether the law uncertain. 559 U.S. Where the law is " not succinct or straightforward, " counsel's duty is limited to doing " no more than advis[ing] a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences." Id. However, where the law is " truly clear, as it was in this case, the duty to give correct advice is equally clear." Id.; State v. Gaitan, 209 N.J. 339, 37 A.3d 1089 (2012) (Padilla established a two-tiered analytical structure for assessing counsel's conduct which depends on whether the deportation consequences are certain or less clear); Hernandez v. State (Fla. Supreme Court, November 11, 2012) (United States Supreme Court " specified that depending on the clarity and certainty of the deportation consequence, defense counsel's duty to advice under Padilla may be heightened.").
As in Padilla, the petitioner here was charged with a drug trafficking offense that clearly constituted an " aggravated felony" under federal law, and would result in certain and mandatory deportation from the United States. 559 U.S. The Supreme Court found that " Padilla's counsel could have easily determined that his plea would make him eligible for deportation simply from reading the text of the statute, which addresses not some broad classification of crimes but specifically commands removal for all controlled substance convictions except for the most trivial of marijuana offences ... The consequences of Padilla's plea could easily be determined from reading the removal statute, his deportation was presumptively mandatory and his counsel's advice was incorrect." Id. Because the immigration consequences were " truly clear, " the Supreme Court held counsel to the higher standard requiring that he provide " correct advice" regarding the immigration consequences. Because counsel in Padilla did not provide correct advice to his client, the court found counsel's conduct constitutionally deficient. Id. (counsel incorrectly advised Padilla, that because he had been in the country so long, he did not have to worry about immigration consequences).
As in Padilla, the petitioner in this case was charged with a drug trafficking crime which petitioner's counsel could have " easily determined" from reading the statutes would result in presumptive mandatory deportation and ineligible to seek discretionary relief. Therefore, under Padilla, Attorney Imhoff's conduct must be assessed under the stricter standard as to whether he provided the petitioner " correct advice." Because the law was clear and succinct, merely informing the petitioner that there was a risk of deportation would not be sufficient under Padilla in this case. See Hernandez v. State of Florida, supra (" Given that the deportation consequence was truly clear, " [petitioner's] counsel had a commensurate duty to provide the ‘ correct advice’ ").
The issue then is whether Attorney Imhoff provided the petitioner ‘ with " correct advice" regarding the immigration consequences of his plea to possession with intent to sell under § 21a-277(a). The court concludes that he did not. The court finds that although Attorney Imhoff had a general knowledge of immigration law, he was unaware of the specific consequences of the petitioner's plea in this case and as a result was unable to, and did not, provide clear and accurate advice. Instead, Attorney Imhoff gave the petitioner incomplete, unspecific and incorrect advice regarding the immigration consequences of his plea. Had Attorney Imhoff known the specific immigration consequences of the petitioner's, he would not have deemed it necessary for the petitioner to consult with an attorney versed in immigration law.
In particular, the advice was incorrect because it allowed for the possibility that the petitioner could prevail at a subsequent immigration proceeding, when in fact deportation was a virtual certainty. See United States v. Bonilla, 637 F.3d 980, 984 (9th Cir.2011) (" A criminal defendant who faces almost certain deportation is entitled to know more than that it is possible that a guilty plea could lead to removal; he is entitled to know that it is a virtual certainty"); Ex parte Romero, 351 S.W.3d 127, 131 (Tex.App.2011) (" Because the deportation consequences was truly clear, trial counsel had a duty to inform [the defendant] of the specific consequences of his plea"); Hernandez v. State of Florida, supra (advice that the petitioner's plea " could/may" affect immigration status, when deportation is presumptively mandatory is insufficient).
It was also incomplete as Attorney Imhoff should have informed, but did not, the petitioner that his conviction under § 21a-277(a) constituted an aggravated felony under federal immigration law, and therefore, is a deportable offense. As a result of that conviction, the petitioner would be mandatorily detained by federal immigration authorities pending deportation proceedings after he completed his state sentence, would not be eligible to seek a viable discretionary relief from removal, and his removal was a virtual certainty. Advising the petitioner, who was indigent and incarcerated, to obtain and consult with an immigration attorney, when he had no ability or resources to do so, was a further error and did not cure counsel's incomplete and incorrect advice. See People v. Garcia, 29 Misc.3d 756, 907 N.Y.S.2d 398 (2010).
Had trial counsel been better informed of the immigration consequences, he could have sought to reach an agreement that would satisfy both parties. As the United States Supreme Court stated: " Counsel who possess the most rudimentary understanding of the deportation consequences of a particular criminal offense may be able to plea bargain creatively with the prosecutor in order to craft a conviction and sentence that reduce the likelihood of deportation as by avoiding a conviction for an offense that automatically triggers the removal consequence. At the same time, the threat of deportation may provide the defendant with powerful incentive to plead guilty to an offense that does not mandate that penalty in change for a dismissal of a charge that does." Padilla v. Kentucky, supra, at 559 U.S. Attorney Imhoff did not raise the issue of the petitioner's certain deportation with the court or the prosecutor, a tactic used by attorneys knowledgeable of immigration laws, like the petitioner's attorney experts and sanctioned by the Supreme Court in Padilla.
Accordingly, the court concludes that the petitioner has met his burden to prove that counsel's conduct was constitutionally deficient under the performance prong of Strickland.
D. Prejudice— Strickland as modified by Hill
To establish the prejudice prong in a case involving a guilty plea under Strickland v. Washington, supra, 466 U.S. at 668, as modified by Hill v. Lockhart, supra, 474 U.S. at 59, the petitioner must show that: " that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial." Johnson v. Commissioner of Correction, supra, 285 Conn. at 576, quoting Hill v. Lockhart, supra, 474 U.S. at 59. A " reasonable probability" is a " standard of proof ‘ somewhat lower’ than a preponderance of the evidence." Strickland, supra, 466 U.S. at 694. Under Hill v. Lockhart, supra, 474 U.S. 59, the court must decide " whether counsel's constitutionally ineffective performance affected the outcome of the plea process. " Hill v. Lockhart, supra, 474 U.S. at 59, (emphasis added).
The Supreme Court in Padilla, supra, 130 S.Ct. at 1486, did not reach the prejudice prong of the Strickland-Hill analysis because the lower court had not reached that issue. It therefore remanded the case to the lower court to consider the prejudice prong in the first instance. However, the Padilla court made several statements that are relevant to a determination of prejudice including that: " [T]o obtain relief on this type of claim, a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances. " Id. 14 (emphasis added). The court also stated that: " [p]reserving the client's right to remain in the United States may be more important to the client than any potential jail sentence." (Internal citations omitted.) Id., citing INS v. St. Cyr, 533 U.S. 289, 323; see United States v. Orocio, supra, 645 F.3d at 645 (the appropriate inquiry is whether if the petitioner had been made aware of the mandatory deportation consequences of his plea, he would have reasonably chosen to go to trial even though he faced serious charges and significant exposure).
The respondent appears to adopt this view that to establish prejudice, the petitioner must prove that his decision to reject the plea and proceed to trial would be rational under the circumstances. Respondent's Br. p. 15. The respondent does not argue in this case, as he has in other cases, that to prove prejudice, in addition to proving that he would have rejected the plea and insisted on a trial, the petitioner must prove that he would have prevailed at trial or been sentenced to a term that did not meet the threshold for deportation. Because the petitioner does not ask the court to impose what it deems a heightened standard in this case, it is unnecessary for this court to address it. The court notes, however, that it has previously held that the imposition of the additional requirement that the petitioner prove that he would have been successful at trial, does not apply to the unique circumstances of a Padilla claim. See Bakrina v. Warden, supra; accord, Padilla v. Commonwealth of Kentucky, (2011-CA 000553-MR (Ky.App. September 28, 2012) (" Padilla had to demonstrate that he rationally would have insisted on a trial, not that an acquittal at a trial was likely. The Supreme Court has ‘ never required an affirmative demonstration of likely acquittal at such a trial as the sine qua non of prejudice’ "). Although the petitioner does not have to prove that he would have prevailed at trial part of the prejudice prong in a Padilla case, the strength of the state's case and petitioner's potential success at trial are factors that the habeas court should consider in determining whether the petitioner's decision to reject a plea and insist on a trial was rational under Padilla. This court has considered these factors in this case and determined that they are outweighed by the other factors the court has considered.
On remand, applying the standards annunciated in Padilla v. Kentucky the Court of Appeals for the Commonwealth of Kentucky found that the determination of prejudice depends on the facts of the particular case and whether " a rational defendant would have rejected the plea offer and insisted on going to trial." Padilla v. Commonwealth of Kentucky, (2011-CA 000553-MR (Ky.App. September 28, 2012). The Kentucky Court of Appeals concluded that " although not the exclusive factor when determining whether a particular defendant's decision to insist on a trial would have been rational, the immigration consequences of a guilty plea can be the predominate factor. See Padilla, 130 S.Ct. at 1483. The court must determine whether the defendant's rejection of the plea offer would have been a rational choice, even if not the best choice. Necessarily, the court must consider the importance a particular defendant places upon preserving his or her right to remain in this country. A noncitizen defendant with significant ties to this country may rationally be willing to take the risk of a trial while the same decision by one who has resided in the United States for a relatively brief period of time or has no family or employment in this country may be irrational." Id. Applying this standard and factors on remand, the Kentucky court found that Mr. Padilla had been prejudiced by his counsel's incorrect advice.
The Third Circuit has similarly explained: " For the alien defendant most concerned with remaining in the United States, especially a legal permanent resident, it is not at all unreasonable to go to trial and risk a ten-year sentence and guaranteed removal, but with the chance of acquittal and the right to remain in the United States, instead of pleading guilty to an offense that, while not an aggravated felony, carries ‘ presumptively mandatory’ removal consequences. Just as ‘ the threat of [removal] may provide the defendant with a powerful incentive to plead guilty to an offense that does not mandate that penalty in exchange for a dismissal of a charge that does, ’ id. at 1486, the threat of removal provides an equally powerful incentive to go to trial if a plea would result in removal anyway." Id., accord State v. Sandoval, 171 Wash.2d 163, 249 P.3d 1015, 1021-22 (2011); People v. Picca, 97 A.D.3d 170, 183, 947 N.Y.S.2d 120 (2012).
Applying this standard and factors here, the court finds that the petitioner has established that it would have been rational for him to reject the plea offer and insist on a trial. The petitioner testified that had his attorney correctly advised him that he would be deported, he would not have accepted the plea and would have insisted on going to trial. He also indicated that he would have risked spending significantly more time in jail in this country rather than be deported to Haiti. The respondent argues that the petitioner's claim is irrational because the state had a strong case against the petitioner, and that Attorney Imhoff negotiated a good plea deal for the petitioner that included no mandatory minimums.
The court agrees that the plea deal negotiated by Attorney Imhoff, reducing the charges to a single charge with minimal jail time and no mandatory minimum, was a good one for a citizen defendant who did not face certain and permanent deportation. However, for a noncitizen defendant who faces the unique and severe additional consequence of removal from the United States, the petitioner's right and desire to stay in the United States " may be more important to the client than any potential jail sentence." Padilla v. Kentucky, supra, at 559 U.S. citing INS v. St. Cyr, 533 U.S. 289, 323 (2001). Had immigration consequences been factored into the plea negotiations— which they were not— " trial counsel may have obtained a plea agreement that would not have the consequence of mandatory deportation." Padilla v. Commonwealth of Kentucky, (2011-CA 000553-MR (Ky.App. September 28, 2012). Taking such a chance of holding out for a better plea, as Attorney Collins opined, would also have been rational. See Id.
The petitioner has been a permanent resident of the United States for almost twenty years. His longtime partner and young daughter live in Connecticut and are citizens of the United States. The petitioner has no family connections in Haiti any longer. Given his visible and permanent physical disability, the petitioner would face certain discrimination and virtually no heath care. As a criminal deportee to Haiti, the petitioner would be detained for an undermined and significant amount of time in a local lock up or the national penitentiary where he would be subject to deplorable and inhumane conditions. Those conditions would be significantly worse for the petitioner due to his physical healthcare needs resulting from his disability. With no family in Haiti, the petitioner would not be provided food or water, unless from other prisoners and could be detained indefinitely.
In addition, evidence in the record demonstrates that the petitioner may have had a defense of drug dependency to the state's case, which trial counsel did not pursue. He took no steps to develop the defense, or seek to obtain a pretrial diversionary program based on the petitioner's substance abuse. The petitioner's expert witness, Attorney Caldwell testified that attempting to develop such a defense was critical both to the plea bargaining process and to any potential trial, if held. Thus, while the state had a strong case and the petitioner faced significant exposure, the existence of a possible defense to the charges supports the court's rationality determination.
Finally, the respondent claims, without citing any legal authority, that the trial court's question regarding the possible risk of deportation resulting from the petitioner's plea, during the plea canvass was sufficient to cure Attorney Imhoff's deficient performance in this case. The court rejects this claim.
Here, the trial court complied with its statutory obligation under General Statutes § 54-1j to inquire of the petitioner, before accepting his plea, whether he " understands that if [he] is not a citizen of the United States, conviction of the offense for which the defendant has been charged may have the consequences of deportation or removal from the United States, exclusion from readmission to the United States or denial of naturalization pursuant to the laws of the United States." Although the court may rely on the responses of the petitioner at the time he responded to the trial court's plea canvass, Toles v. Commissioner of Correction, 113 Conn.App. 717, 967 A.2d 576, cert. denied, 293 Conn. 906, 978 A.2d 1114 (2009), a proper court canvass does not negate trial counsel's responsibility to provide objectively reasonable representation and advice to the defendant under the Sixth Amendment right to counsel. See Lafler v. Cooper, supra, at 566 U.S. (" An inquiry into whether rejection of a plea is knowing and voluntary, however, is not the correct means by which to address a claim of ineffective assistance of counsel").
In particular, Section 54-1j is concerned with the " communication between the defendant and his attorney about immigration consequences" and " ensuring that defendants engage in a conversation with their counsel, not the court, regarding the immigration consequences of guilty pleas." State v. Hall, 303 Conn. 535, 527 (2012). The court's inquiry under § 54-1j is the same in every case and is therefore necessarily general to apply to every criminal defendant entering a plea, and is not intended to advise any individual defendant regarding the particular immigration consequences of a plea. Moreover, the court's general and unspecific inquiry as to the possible " risk" of immigration consequences is similar to Attorney Imhoff's general and unspecific advice to the petitioner. That advice, as found supra, was constitutionally deficient in this case as to Imhoff under Padilla v. Kentucky, supra, at 559 U.S. Thus, the court's general inquiry here could not be said to have cured the attorney's failure to specifically and correctly advise the petitioner as to the near certainty of deportation under the circumstances of this case. See Hernandez v. State of Florida, (Fla., Supreme Court November 11, 2012) (Although a court canvass may contribute to the totality of the circumstance that the petitioner is aware that there is a possibility of deportation, it cannot cure prejudice resulting from counsel's deficiency).
Accordingly, the court concludes that given the severity of the deportation consequences to the petitioner in this case, it would have been a reasonable and rational decision for the petitioner to reject the plea and take his chances at trial. In fact, he would have had nothing to lose. Thus, the court finds that but for his counsel's incorrect advice, it was reasonably probable that the petitioner would not have plead guilty and would have insisted on going to trial and that such a decision would have been rational under the circumstances. Hill v. Lockhart, supra, 474 U.S. at 52; Padilla v. Kentucky, supra.
CONCLUSION
For the foregoing reasons, the court grants the petition for writ of habeas corpus and vacates the petitioner's plea and conviction in docket number CR06-113619, Superior Court, Judicial District of Stamford/Norwalk, Geographic Area # 20. The case is returned to the trial court for further proceedings.
So ordered.