Opinion
H15NCR100254654
03-11-2016
State of Connecticut v. Pawel Sienkiewicz
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON MOTION TO DISMISS PETITIONER'S WRIT OF ERROR CORAM NOBIS
Maureen M. Keegan, J.
On June 19, 2015, the petitioner, Pawel Sienkiewicz, filed a petition for a writ of error coram nobis in which he alleges the following. On July 12, 2013, the petitioner pleaded guilty to assault in the third degree in violation of General Statutes § 53a-61 and was sentenced to one year of incarceration pursuant to a plea agreement with the state. On or around December 17, 2014, when the petitioner was no longer in state custody for his conviction, the petitioner was taken into the custody of Immigration and Customs Enforcement (ICE), at which time removal proceedings were commenced against him. Thereafter, the petitioner learned for the first time that his conviction would have serious immigration consequences, including ineligibility for adjustment of status or for cancellation of removal. The petitioner alleges that there is no other adequate remedy provided by law to correct the injustice resulting from his conviction and that he was not aware of the factual and legal bases of his claim at any time that an alternative remedy, namely, a motion to vacate his guilty plea, a petition for a new trial, and/or a writ of habeas corpus, was available to him. In his prayer for relief, the petitioner requests that the court issue a writ of error coram nobis voiding or vacating his judgment on the grounds that (1) the petitioner's constitutional right to due process was violated, and/or (2) the petitioner's constitutional right to the effective assistance of trial counsel was violated.
The petitioner's conviction was upheld in State v. Sienkiewicz, 162 Conn.App 407, cert. denied, 320 Conn. 924 (SC 150278 3/2/16).
On November 19, 2015, the state filed a motion to dismiss his petition for a writ of error coram nobis on the ground that the petitioner cannot demonstrate that no other form of relief was available to him pursuant to State v. Stephenson, 154 Conn.App. 587, 108 A.3d 1125 (2015). On November 23, 2015, the petitioner filed an objection to the motion to dismiss, and on November 30, 2015, the state filed a reply memorandum of law. The matter was assigned to Shortall, J., for a hearing and then reassigned to Keegan, J. The parties presented argument on March 10, 2016.
" A writ of error coram nobis is an ancient common-law remedy which authorized the trial judge, within three years, to vacate the judgment of the same court if the party aggrieved by the judgment could present facts, not appearing in the record, which, if true, would show that such judgment was void or voidable . . . The facts must be unknown at the time of the trial without fault of the party seeking relief . . . A writ of error coram nobis lies only in the unusual situation [in which] no adequate remedy is provided by law . . . Moreover, when habeas corpus affords a proper and complete remedy the writ of error coram nobis will not lie." (Citations omitted; internal quotation marks omitted.) State v. Das, 291 Conn. 356, 370-71, 968 A.2d 367 (2009). " The errors in fact on which a writ of error [coram nobis] can be predicated are few . . . This can be only where the party had no legal capacity to appear, or where he had no legal opportunity, or where the court had no power to render judgment." (Internal quotation marks omitted.) Hubbard v. Hartford, 74 Conn. 452, 455, 51 A. 133 (1902). " [O]ur Supreme Court expressly has indicated that a writ of error coram nobis can only vacate a judgment if brought within three years of the date of judgment." (Internal quotation marks omitted.) State v. Simpson, 153 Conn.App. 742, 746, 103 A.3d 1002 (2014).
In the present case, the state does not dispute that the petitioner filed his petition in a timely manner, within three years of his guilty plea. In order for the court to have jurisdiction over the petition, however, the petitioner must also show that no other form of adequate relief is available to him. Moreover, if the petitioner had a legal remedy available to him but failed to pursue it, then the court does not have jurisdiction to reach the merits of his claims now via a petition for a writ of error coram nobis. See State v. Stephenson, supra, 154 Conn.App. 592 (" Because the petitioner could have raised any of his current claims in a habeas petition, he had a legal remedy available to him, and, therefore, the court did not have jurisdiction to reach the merits of the petition for a writ of error coram nobis").
The state argues that because the petitioner here could have filed a petition for a writ of habeas corpus prior to the completion of his sentence in the underlying case, he had a legal remedy available to him, and thus the court does not have jurisdiction to review his petition for a writ of error coram nobis. In response, the petitioner argues that the petition for a writ of error coram nobis is the proper vehicle by which to bring his claims because habeas relief was never available to him, in that " [o]nly after the petitioner was out of the custody of the commissioner of correction did he learn from federal immigration authorities that they were rescinding discretionary relief due to his conviction in this case"; thus, the petitioner argues, he " did not sleep on his rights while he was in custody on the assault conviction."
Although the petitioner tries to frame his argument around the first time he learned of the precise immigration consequences resulting from his guilty plea, which he contends took place after he was released from custody when the habeas court no longer had jurisdiction to decide a habeas petition, the true essence of his argument is that he did not realize the seriousness of the possible immigration consequences of his plea until they actually happened to him. Thus, despite the petitioner's attempt to illustrate a difference between the facts of his case and those of countless other non-citizen defendants, no distinction is warranted. If the petitioner wished to claim that he suffered a violation of his rights to due process and effective assistance of counsel at the trial level stemming from the level of specificity to which he was made aware and/or understood the immigration risks of his plea, the factual bases for such claims existed at the time the petitioner was serving his sentence for his conviction. As the state cited in its reply memorandum of law, Stephenson made clear that " the trial court's jurisdiction [to hear a petition for a writ of error coram nobis] is not dependent on the reason that the petitioner failed to exhaust other available legal remedies, but, rather, on the mere existence thereof." Therefore, because the petitioner could have raised any of his current claims in a petition for a writ of habeas corpus, he had a legal remedy available to him. Accordingly, the court does not have jurisdiction to reach the merits of the petition for a writ of error coram nobis.
The habeas court does not have jurisdiction to hear a petition if the petitioner is no longer in state custody. See Guerra v. State, 150 Conn.App. 68, 78, 89 A.3d 1028, cert. denied, 314 Conn. 903, 99 A.3d 1168 (2014) (" Because the petitioner's sentence had been served fully by the time his petition was filed, the habeas court properly concluded that the petitioner was not in custody at that time, within the meaning of [General Statutes] § 52-466, and thus dismissed his petition for lack of subject matter jurisdiction.").
The state's motion to dismiss is granted.