Opinion
No. CV 09 4003118S
April 15, 2011
MEMORANDUM OF DECISION
On July 9, 2009, the petitioner, Muhoza Zuberi, filed a petition for a writ of habeas corpus, which was amended on June 10, 2010. The petitioner claims that he was denied the effective assistance of trial counsel in violation of the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the constitution of Connecticut in the following ways: (1) trial counsel failed to ensure that the petitioner's plea was made knowingly, intelligently and voluntarily in that he failed to advise the petitioner that his immigration status could be implicated by his plea of guilty and that his plea of guilty made him subject to deportation and (2) trial counsel failed to advise the petitioner concerning the consequences of his plea and of his right to withdraw his plea under certain circumstances. He is seeking to have his guilty plea vacated. For reasons stated more fully below, the petition is denied.
The matter came to trial on September 14, 2010. The Court heard testimony from the petitioner, Attorney Judy Ann Stevens, the state's attorney who prosecuted the underlying criminal matter, and Attorney Thomas Paoletta, the petitioner's trial counsel. The petitioner entered into evidence the transcript of his plea hearing. The petitioner and the respondent filed posttrial briefs on March 8, 2011 and March 21, 2011, respectively.
The Court has reviewed all of the testimony and evidence and makes the following findings of fact.
FINDINGS OF FACT
1. The petitioner was the defendant in a criminal case in the judicial district of Bridgeport under docket number CR06-0221095. He was charged with possession of narcotics in violation of General Statutes § 21a-279(a), possession with intent to sell in violation of General Statutes § 21a-278(b) and possession with intent to sell within 1500 feet of a school, a public housing project or a licensed child day care center in violation of General Statutes § 21a-278a(b).
2. On April 30, 2007, pursuant to a plea agreement, the petitioner entered a guilty plea to the charge of possession of narcotics. The trial court, Clifford, J., canvassed the petitioner and found his plea to be knowingly and voluntarily made with the assistance of competent counsel. The trial court did not advise the petitioner that the possible consequence of his plea, if he were not a citizen of the United States, might be deportation.
Petitioner's Exhibit [Exh.] 1, p. 5.
There is no reference to an advisement regarding the potential for deportation in Petitioner's Exh. 1.
3. In exchange for his guilty plea, the petitioner received a sentence of three years suspended and three years probation.
Petitioner's Exh. 1, p. 6.
4. Attorney Thomas Paoletta represented the petitioner at the plea hearing. Attorney Paoletta has been employed by the public defender's office from the time of his admission to the Connecticut Bar in 1996 to the present. He represents about two to three hundred people per month. Because of these large numbers he has always used a systematic method and standard talk for each client, which includes an advisement concerning the possible consequences of conviction of a felony if a person is not a citizen of the United States. He does this for every client he represents.
5. Attorney Paoletta does not recall specifically advising the petitioner about the possible consequence of deportation when he pleaded guilty to the charge in the instant case. He stated, however, that he would have so advised the petitioner as part of his regular procedure.
6. Attorney Paoletta also represented the petitioner on an earlier domestic assault matter to which he had pleaded guilty on May 17, 2006 and had been placed in an alternative to incarceration program. At the time he pleaded guilty to those charges, Attorney Paoletta stated that he would have likewise advised him about the possible consequence of deportation as part of his regular procedure.
7. At the time the petitioner pleaded guilty to the drug charge in the instant case, he had already been sentenced on the assault matters to a sentence of two years to serve, having failed to meet the conditions of the alternative to incarceration program. After a period of plea bargaining on the drug charges, the petitioner did not hesitate to take the offer of three years suspended and three years probation. He was facing a possible maximum penalty of thirty years on all three charges, and the two charges not prosecuted carried a minimum mandatory period of eight years.
8. Additional facts will be discussed as needed.
DISCUSSION
"A habeas petitioner can prevail on a constitutional claim of ineffective assistance of counsel [only if he can] establish both (1) deficient performance, and (2) actual prejudice . . . For ineffectiveness claims resulting from guilty verdicts, we apply the two-pronged standard set forth in Strickland [ v. Washington, 466 U.S. 668, 688-89, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984] . . . For ineffectiveness claims resulting from guilty pleas, we apply the standard set forth in Hill [v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985] . . . which modified Strickland's prejudice prong . . . To satisfy the performance prong, the petitioner must show that counsel's representation fell below an objective standard of reasonableness . . . To satisfy the prejudice prong, the petitioner must show a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." (Internal quotation marks omitted.) Williams v. Commissioner of Correction, 117 Conn.App. 510, 519-20, 978 A.2d 1167 (2009). Additionally, the petitioner must show that he likely would have fared better had he gone to trial. See, e.g., Copas v. Commissioner of Correction, 234 Conn. 139, 151, 662 A.2d 718 (1995) (" Hill requires the petitioner to demonstrate that he would not have pleaded guilty, that he would have insisted on going to trial, and that the evidence that had been undiscovered or the defenses he claims should have been introduced were likely to have been successful at trial"). "A reviewing court can find against a petitioner on either ground, whichever is easier." (Internal quotation marks omitted.) Williams v. Commissioner of Correction, supra, 520.
In his amended petition, the petitioner claims that Attorney Paoletta rendered ineffective assistance by failing to advise him that his immigration status could be implicated by his guilty plea and that his guilty plea made him subject to deportation.
The petitioner also claims that Attorney Paoletta rendered ineffective assistance by failing to advise him of his right to withdraw his plea pursuant to General Statutes § 54-1j, as the trial court failed to personally instruct him on the possible immigration consequences of his guilty plea. The petitioner did not present any evidence on this claim and did not directly address it in his posttrial brief. Accordingly, this Court finds that the petitioner has abandoned this claim. See Raynor v. Commissioner of Correction, 177 Conn.App. 788, 796-97, 981 A.2d 517 (2009), cert. denied, 294 Conn. 926, 986 A.2d 1053 (2010) ("[r]eviewing courts are not required to review issues that have been improperly presented to th[e] court through an inadequate brief . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly").
At the time of the petitioner's plea, failure to advise a client about the immigration consequences of his or her guilty plea did not constitute ineffective assistance, as immigration consequences were regarded as collateral consequences of a guilty plea. See, e.g., State v. Aquino, 89 Conn.App. 395, 406-07, 873 A.2d 1075 (2005), rev'd on other grounds, 279 Conn. 293, 901 A.2d 1194 (2006) ("in Connecticut, immigration consequences are collateral consequences of a guilty plea. Accordingly, the failure to advise as to that collateral consequence does not constitute deficient assistance"). Subsequent to the petitioner's plea, the Supreme Court of the United States decided the case of Padilla v. Kentucky, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), wherein it held that failure to inform a client whether his or her plea carries a risk of deportation can constitute deficient performance under Strickland. Consequently, to find deficient performance in the petitioner's case, this court would have to give full retroactive application to Padilla. Courts in other jurisdictions that have considered whether to apply Padilla retroactively have reached different conclusions. Compare Miller v. State, 196 Md.App. 658, 11 A.3d 340 (2010) (declining to apply Padilla retroactively) with People v. De Jesus, 30 Misc.3d 1203A (N.Y.Sup.Ct., December 24, 2010) (applying Padilla retroactively). Given the evidence presented, however, it is not necessary for this court to reach the issue of whether to apply Padilla retroactively.
At the habeas trial, the petitioner testified that he met with Attorney Paoletta more than seven times but that Attorney Paoletta never advised him about the immigration consequences of his guilty plea. Attorney Paoletta testified that although he does not recall specifically advising the petitioner regarding the immigration consequences of his guilty plea, it has been his practice for the last fourteen years to advise all of his clients that their guilty plea could have serious negative immigration consequences regardless of whether he questions their citizenship. Accordingly, he testified he would have advised the petitioner about the possible immigration consequences of his plea at time of his plea.
This Court finds that Attorney Paoletta more likely than not advised the petitioner about the immigration consequences of his guilty plea. As noted by the Supreme Court: "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 . . . We should, therefore, presume that counsel satisfied their obligation to render competent advice at the time their clients considered pleading guilty." (Citation omitted.) Padilla v. Kentucky, supra, 130 S.Ct. 1485. Besides his own self-serving testimony, the petitioner has not presented any evidence to overcome this presumption and show that Attorney Paoletta deviated from his usual practice in the petitioner's case.
In any event, even if this Court were to presume deficiency in Attorney Paoletta's representation, the petitioner's claim would still fail, as he has not made the required showing of prejudice. This court recognizes 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." Padilla v. Kentucky, supra, 130 S.Ct. 1483. However, in the petitioner's case, it is far from clear that, but for Attorney Paoletta's alleged failure to inform him of the immigration consequences of his guilty plea, he would have rejected the plea bargain and insisted on going to trial. Additionally, had the petitioner gone to trial, it is not likely he would have fared any better.
As testified to by the petitioner at the habeas trial, all the offers extended to him included a period of incarceration. He accepted the plea bargain that he did because it consisted of a sentence suspended in favor of probation. Attorney Paoletta testified that the offer was very reasonable and that the petitioner appeared satisfied with it and did not hesitate to take it. The three drug charges against the petitioner exposed him to thirty years incarceration. While Attorney Paoletta indicated that he got the prosecution to drop the possession with intent to sell charges after he did an investigation of the petitioner's case, there was no indication from him or the petitioner that the petitioner had any viable defenses to the possession charge, which alone exposed him to seven years incarceration. Accordingly, if the petitioner went to trial, in all likelihood, he would have been convicted of at least the possession charge, sentenced to a more lengthy sentence and still faced deportation. It is also worth noting that at the time the petitioner pleaded guilty to the drug charge, he had already pleaded guilty to an earlier domestic assault matter and received a two-year sentence, which in and of itself may have exposed him to deportation. See 8 U.S.C. § 1227(a)(2)(E)(i) ("[a]ny alien who at any time after admission is convicted of a crime of domestic violence . . . is deportable"). In light of the above, this Court finds that the petitioner has not made the required showing of prejudice.
CONCLUSION
Based on the foregoing, the petition for a writ of habeas corpus is DENIED. Judgment may enter in favor of the respondent. Should the petitioner wish to appeal, counsel shall submit a judgment file to the clerk within thirty days.