Opinion
TSRCV154007226S
06-29-2016
Kirk Young v. Warden, State Prison
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Samuel J. Sferrazza, S.J.
The petitioner, Kirk Young, seeks habeas corpus relief in the form of withdrawal of his guilty pleas to sale of narcotics and conspiracy to sell narcotics, for which crimes he received a total, effective sentence of fourteen years imprisonment, suspended after the service of seven years, and five years probation. The parties agree that conviction for these crimes mandates deportation of the petitioner because he is a citizen of Trinidad and Tobago rather than a United States citizen. Presently, the petitioner is in the custody of the United States Immigration and Customs Enforcement Agency (ICE), and he has exhausted all administrative avenues to avoid an immigration court order that he be deported.
He first claims that his criminal defense counsel, Attorney Karen Haley, provided ineffective assistance by failing to inform him regarding the mandatory deportation that would result from his guilty pleas, which failure comprises constitutionally deficient representation under Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). He next avers that his due process rights were violated when Judge Thim, the judicial authority who canvassed his guilty pleas, also failed to warn him that his guilty plea convictions might generate adverse immigration consequences, which warning is required by General Statutes § 54-1j.
Due Process Claim
This claim is easily addressed. The petitioner entered his guilty pleas on August 9, 2010, and the only transcript for that day in evidence before this court shows that that proceeding lacked the advisement required by § 54-1j(a). The petitioner moved to vacate the convictions and withdraw his guilty pleas based on this omission on March 18, 2015. However, Judge Devlin determined that the criminal session of the Fairfield J.D. lacked subject matter jurisdiction to grant the motion because § 54-1j(c) expressly limits the trial court's authority to vacate pleas for noncompliance with subsection (a) to requests that are made " not later than three years after the acceptance of the pleas . . ." That decision comported with that rendered in State v. Ramos, 306 Conn. 125, 135-36, 49 A.3d 197 (2012). See also, State v. Barriga, 165 Conn.App. 686, 140 A.3d 292 (2016).
The petitioner seems to argue that, despite the three-year limit contained in § 54-1j(c), the statutory obligation to inform defendants of possible immigration problems stemming from convictions following guilty pleas creates a separate liberty interest, the violation of which is unbounded by the three-year statutory constraint. The court rejects this argument.
There is no constitutional nor common-law basis authorizing a trial court to exercise jurisdiction to grant a motion to vacate a judgment of conviction following a guilty plea, State v. Ramos, supra, 135. The petitioner points to no evidence, peculiar to his situation, that demonstrates that the statutory time restriction of § 54-1j(c) is unconstitutional as applied to him. No governmental action impaired the petitioner's opportunity to raise the breach of the warnings required by § 54-1j(a) within the three-year period afforded by § 54-1j(c).
The fact of deportation, alone, is insufficient to override the three-year deadline. In State v. Ramos, supra, the defendant had already been deported to Colombia when the motion was adjudicated. Yet, the clear failure to fulfill the obligation created by § 54-1j(a), coupled with actual adverse consequences, conferred no authority upon the trial court to vacate the conviction. Id.
In Barriga, supra, our Appellate Court recognized that restricting the time to assert such omissions was a reasonable endeavor by our legislature. " Furthermore, there is an obvious rationale behind the three-year limitation . . ." Id. " [T]here is a public interest in maintaining some finality to judgments." Id. " [W]itnesses are dead or cannot be found and physical evidence of crime has been destroyed." Id. " Public trust and confidence in the judiciary is sapped when cases are allowed to linger endlessly for years or decades in trial or appellate tribunals." Id.
As noted above, but for the enactment of the statutory procedure outlined in § 54-1j, there is no duty for the trial court, taking a guilty plea, to warn a defendant as to potential immigration difficulties. The legislative power to create such a duty implies the power to set boundaries for that duty, State v. Barriga, supra . Having failed to identify how the dictates of § 54-1j impair his liberty interest over and above the mere existence of the time bar set forth in § 54-1j(c), the petitioner's due process violation claim must fail.
Ineffective Assistance
Our Supreme Court has adopted the two-pronged Strickland test for evaluating ineffective assistance claims. Johnson v. Commissioner, 218 Conn. 403, 425, 589 A.2d 1214 (1991); Ostolaza v. Warden, 26 Conn.App. 758, 761, 603 A.2d 768 (1992). The Strickland criteria require that the petitioner demonstrate, by a preponderance of the evidence, both that his attorney's performance was substandard and that the outcome of the proceedings would have been different. Id.
As to the performance prong of Strickland, the petitioner must establish that trial counsel's representation fell below an objective standard of reasonableness. Johnson v. Commissioner, supra . This standard of reasonableness is measured by ordinary, professional competence. Id. The habeas court must make every effort to eliminate the distorting effects of hindsight and to reconstruct the circumstances surrounding counsel's conduct from that attorney's perspective at the time of the representation. Id.
The United States Supreme Court has also set forth the prejudice standard for weighing ineffective assistance claims with respect to the entry of guilty pleas. Hill v. Lockhart, 474 U.S. 52, 59-60, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). The criterion for the prejudice prong announced in Hill v. Lockhart, supra, was incorporated into our habeas law. Copas v. Commissioner, 234 Conn. 139, 156-57, 662 A.2d 718 (1995). Under these cases, the habeas petitioner must show that, but for counsel's unprofessional representation, the petitioner would have elected to have a trial rather than plead guilty. Id., at 151; Carraway v. Commissioner, 317 Conn. 594, 600, fn.6, 119 A.3d 1153 (2015).
In Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), the United States Supreme Court held, for the first time, that defense counsel in a criminal case renders constitutionally deficient assistance by failing to alert a noncitizen client that conviction of the crime to which he or she pleads guilty mandates deportation. Id. The Padilla decision " expressly did not alter or address the prejudice analysis under [ Strickland-Hill ]." Yong Wong Park v. U.S., 441 Fed.Appx. 18, 20 (2d Cir. 2011).
Applying these principles, the court determines that Attorney Haley provided ineffective assistance, as delineated by Padilla v. Kentucky, supra . The petitioner emigrated from Trinidad and Tobago in 1978 when he was eight years old. All of his immediate and extended family, including his children, now reside in the United States. He lacks any close familial or social connection with Trinidad and Tobago.
Had the petitioner known that his guilty plea convictions compel deportation, he never would have accepted the plea offer. The petitioner first learned of this mandate when ICE apprehended him when he was granted parole in 2014.
Although Attorney Haley testified at the habeas hearing that it has become her customary practice to inform all clients, citizens or otherwise, of potential immigration problems upon conviction, she has no specific recollection of advising the petitioner on this subject nor to when her practice became universal. She did recall that she adopted this protocol after " someone" told her it was important to do so.
It should be noted that the petitioner entered his guilty pleas on August 9, 2010, and the Padilla decision was announced on March 31, 2010, around four months earlier. The court finds that the probability that Attorney Haley's handling of the petitioner's case predated her modification of advice to clients regarding immigration consequences is significant and consistent with the petitioner's version of events.
Thus, the court finds that the petitioner has met his burden of proving, by a preponderance of the evidence, the deficient performance prong of the Strickland standard as explicated by Padilla .
The court also determines that the petitioner has proven the prejudice component of that test. Because no evidence was presented that anyone, including the judicial authority, warned the petitioner of possible deportation following conviction and because his lawyer failed to counsel him that immigration laws compelled his deportation, the petitioner had no reason to anticipate that result. As soon as he learned of that circumstance, he attempted to withdraw his guilty pleas to no avail. No tactical advantage appears to have been gained in this case by vacatur and withdrawal of the guilty pleas, such as might occur in a case where witnesses or evidence has disappeared or cannot be presented through secondary means. The petitioner faces the prospect of prolonged incarceration if convicted after trial. Given his life circumstances, the court finds his testimony regarding the fact that he never would have consented to a plea agreement that entailed mandatory deportation both sincere and accurate.
Consequently, the court grants the amended petition for habeas corpus relief by vacating his judgment of convictions, allowing withdrawal of his guilty pleas, and restoring his criminal case to the Part A docket of the Fairfield J.D. at Bridgeport.