Opinion
No. TSR CV 10 4003992 S
November 7, 2011
MEMORANDUM OF DECISION
The petitioner, Wil Y. Zavala, Jr., seeks habeas corpus relief in the form of vacating guilty pleas which he entered in 2008 and 2009 to two counts of burglary third degree, assault second degree, and assault third degree. These pleas arose from three criminal cases, and the petitioner received a total, effective sentence of five years imprisonment, execution suspended, and three years of probation. The petitioner asserts that his public defender, Attorney Amelia Ruggeri, rendered ineffective assistance by failing to apprise herself and the petitioner that the convictions resulting from these guilty pleas would, under federal immigration law, mandate his deportation.
Our Supreme Court has adopted the two-pronged Strickland test for evaluating ineffective assistance claims. Johnson v. Commissioner, 218 Conn. 403, 425 (1991); Ostolaza v. Warden, 26 Conn.App. 758, 761 (1992). The Strickland criteria requires 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 prevailing, professional norms. 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 (1985). The criterion for the prejudice prong announced in Hill v. Lockhart, supra, was incorporated into our habeas law. CT Page 23241 Copas v. Commissioner, 234 Conn. 139, 156-57 (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 and that the outcome was likely to be more successful. Id., 151.
It is undisputed that, under federal immigration law, the sentences imposed for the offenses to which the petitioner pleaded guilty, whether suspended or not, caused those offenses to be regarded as aggravated felonies. Also, the five-year sentence, even though suspended, renders a resident alien ineligible for programs or procedures which can avoid deportation, except for the deferral of removal available under the United Nations Convention Against Torture provisions.
The petitioner was born in Guatemala and immigrated to the United States with his family twelve years ago when he was nine years old. His parents had been human rights activists in Guatemala, and they sought possible asylum in the United States because of the threats posed to their family by forces of the Guatemalan government. The petitioner is now twenty-two years old, and, in 2007, he was granted status as a permanent resident alien as a political asylee.
On January 15, 2008, at G.A. 1 in Stamford, he pleaded guilty to two counts of burglary third degree and one count of assault second degree. He received concurrent sentences of five years incarceration, execution suspended, and three years probation on each count. On August 3, 2009, he pleaded guilty, in G.A. 1, to a new charge of assault third degree for which he received a concurrent sentence of one year incarceration, execution suspended, and two years of probation.
Sometime thereafter, the Adult Probation Department obtained violation of probation warrants for the petitioner, which warrants were executed in September 2010. As a consequence, the petitioner was taken into custody. Immigration and Customs Enforcement (ICE) was notified of this development, and, on September 23, 2010, the petitioner was detained in Boston to face removal proceedings. The Immigration Judge conducted a hearing and determined that the Connecticut convictions and sentences disqualified the petitioner from any relief from deportation except that afforded under the United Nations Convention Against Torture. The Immigration Judge, however, found that, under Article Third of that Convention document, the petitioner had proven that his return to Guatemala, more likely than not, would subject the petitioner to torture tolerated by the government of Guatemala. Consequently, the Immigration Judge ordered that the petitioner's removal to Guatemala be deferred.
The deferral of removal means that, while the petitioner remains in the United States for now, he could be deported from the United States and denied reentry in to the United States in the future. Homeland Security can seek termination of the petitioner's deferral if the political climate changes in Guatemala or if another country would accept the petitioner into its jurisdiction.
The petitioner specifically alleges that Attorney Ruggeri provided substandard representation by failing to advise him that his guilty pleas to burglary third degree, assault second degree, and assault third degree, and the suspended sentences imposed, would mandate deportation to Guatemala; and that she failed to negotiate a plea agreement which would avoid this outcome.
At the habeas trial, the petitioner testified that Attorney Ruggeri merely informed him that his guilty pleas might result in his deportation. Attorney Ruggeri testified, to the contrary, she explicitly told him multiple times that he definitely would be deported as a result of these pleas. She also averred that the petitioner expressed a preference for deportation over incarceration. The court need not resolve the dichotomy of recollection, however.
In Padilla v. Kentucky, 130 S.Ct. 1473 (2010), decided on March 31, 2010, the United States Supreme Court held, for the first time, that defense counsel in a criminal case renders constitutionally deficient, legal assistance by failing to advise a noncitizen defendant that conviction of the crime or crimes to which he or she pleads guilty mandates deportation. By so ruling, the United States Supreme Court reversed the decision of the Kentucky Supreme Court that held that adverse immigration consequences were collateral to a criminal proceeding and, therefore, could not form the basis for a claim of ineffective assistance through habeas corpus. Id., 18. However, the United States Supreme Court did not order the pleas be vacated, instead that Court remanded the matter to the state courts in order to address the question of whether the petitioner also satisfied the prejudice prong of the Strickland standard. Id., 12.
It must be observed that, in Padilla, the petitioner, seeking to have his guilty pleas vacated, also faced mandatory removal stemming from those pleas. If the prejudice component of the Strickland-Hill criteria were met by showing adverse immigration status impact alone, then the United States Supreme Court would have had no occasion to remand the habeas case to the Kentucky courts for evaluation of the prejudice question. The compulsory aspect of federal immigration laws would have been sufficient to warrant an order by the United States Supreme Court to the state courts to vacate the pleas. Instead, the Supreme Court determined that remand for further habeas proceedings regarding prejudice was necessary in order to adjudicate whether the petitioner could prove the existence of a reasonable probability of a different outcome in the petitioner's criminal case which would avoid mandatory deportation under federal immigration law.
In the present case, the court concludes that the petitioner has failed to meet his burden of establishing, by a preponderance of the evidence, that there exists a reasonable probability that, but for counsel's alleged misadvice regarding deportation, the outcome of his criminal cases would have produced a result which avoided mandatory removal under federal law. No persuasive evidence was proffered at the habeas trial on this issue.
The petitioner did offer the testimony of Attorney James Swaine, an experienced criminal defense and immigration lawyer, who opined that if Attorney Ruggeri neglected to communicate to the petitioner the mandatory removal consequences of the guilty pleas and recommended sentences, then the petitioner's immigration case and status would be prejudicial thereby. But, as noted above, under Padilla, the prejudice prong of the Strickland analysis must include consideration of the outcome of the criminal proceedings and how that outcome would bear on the petitioner's immigration status. In other words, it was incumbent upon the petitioner to prove, not merely that he would have rejected the plea offer, but also that there is a reasonable probability that his rejection of the offer would have produced a more favorable outcome in his criminal cases with respect to the effect on his immigration status. Niver v. Commissioner, 101 Conn.App. 1, 6 (2007).
The prejudice component of Strickland demands more than a showing that the petitioner would have elected to have a trial rather than plead guilty. Gonzalez v. Commissioner, 124 Conn.App. 740, 745 (2009). The habeas petitioner must also prove that, by having a trial or by rejecting the plea offer, the petitioner "would have received a more favorable sentence." Id. To establish prejudice the petitioner must show that he was "likely to have been successful at trial." State v. Aquino, 89 Conn.App. 395, 408 (2005).
The petitioner cannot rely on conjecture or speculation to prove prejudice in this sense. Gonzalez v. Commissioner, 127 Conn.App. 454, 458 (2011). The prejudice facet of Strickland must be established by "demonstrable realities." CT Page 23244 Id. No witness in this case offered an opinion on this point. Attorney Swaine indicated that in his own practice he generally attempts to convince the prosecutor and the judge to construct a disposition which would save his client from adverse immigration consequences. But he also noted that he was sometimes unsuccessful in this endeavor. He was never asked to analyze the particular circumstances of the petitioner's case and opine as to likelihood of achieving such a goal.
No evidence was adduced as to the prosecutor's willingness to accommodate such a disposition. The absence of such evidence has been cited by our Appellate Court as undermining a habeas petitioner's attempt to prove prejudice under the Strickland-Hill standard regarding guilty pleas. Gudino v. Commissioner, 123 Conn.App. 719, 725 (2010). Lacking any evidence regarding the strengths and/or weaknesses of the prosecution's case and the petitioner's defenses in his criminal case; regarding the receptiveness of the prosecutor to cooperate to minimize the chance for deportation; and regarding the trial counsel's willingness to approve such a disposition, the court cannot find that the petitioner has satisfied the prejudice prong of the Strickland standard as modified by Hill, Niver v. Commissioner, supra.
The petition is, therefore, denied.