Opinion
CV104003992S
12-14-2016
Wil Zavala (CT#379083) (MA#38512) v. Warden
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Vernon D. Oliver, J.
The petitioner, WIL ZAVALA, initiated this petition for a writ of habeas corpus, claiming that his underlying trial counsel provided him ineffective legal representation during pre-trial negotiations and at the time of his guilty pleas regarding potential immigration consequences. On remand from the Appellate Court, he seeks an order of this court vacating his convictions and returning the matter to the criminal court for further proceedings. The respondent denies the substance of the claims and has filed a motion to dismiss the proceedings based on recent developments in habeas corpus jurisprudence. The court finds, pursuant to Connecticut Practice Book § 23-29(2), that the petition fails to state a claim upon which relief can be granted and DISMISSES the petition.
I
Procedural History
The following findings of the Appellate Court, including the order for remand, are relevant to a disposition of the instant petition:
In 2008, the petitioner pleaded guilty to two counts of burglary in the third degree and one count of assault in the second degree and was sentenced to concurrent terms of five years incarceration, execution suspended, and three years probation. With regard to a separate incident, the defendant pleaded guilty in 2009 to assault in the third degree and was sentenced to a term of one year incarceration, execution suspended, and two years probation.
The petitioner thereafter filed a petition for a writ of habeas corpus alleging ineffective assistance of counsel on the part of the attorney who had represented him at the 2008 and 2009 plea proceedings. He alleged that the attorney had failed to advise him that his guilty pleas would subject him to mandatory deportation from the United States, where he was a lawful permanent resident, to his native country of Guatemala. In denying the petition, on the ground of failure to establish the prejudice prong of an ineffective assistance of counsel claim under Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the habeas court applied the standard for determining prejudice set forth in Copas v. Commissioner of Correction, 234 Conn. 139, 151-57, 662 A.2d 718 (1995). Upon reaching that conclusion, the habeas court did not decide whether the petitioner had established the performance prong of ineffective assistance of counsel. The habeas court granted certification to appeal, and this appeal followed.
Following oral argument in this court, we stayed the appeal pending our Supreme Court's decision in Carraway v. Commissioner of Correction, 317 Conn. 594, 119 A.3d 1153 (2015). In Carraway, the Supreme Court held that the prejudice standard enunciated in Copas had been overruled sub silentio Id. at 596, 119 A.3d 1153. Following the release of the decision in Carraway, we ordered the parties to submit supplemental briefs on the applicability of that case to this appeal. In his supplemental brief, the petitioner argues that the present case should be remanded to the habeas court for further proceedings in which the issue of prejudice can be determined by application of the standard enunciated in Carraway and Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). The respondents do not disagree, nor do we. The habeas court applied the prejudice standard stated in Copas . Subsequent to that decision, the Supreme Court in Carraway held that Copas had been overruled and was no longer applicable.
The judgment is reversed and the case is remanded to the habeas court for further proceedings according to law.
Zavala v. Office of Adult Probation et al., 161 Conn.App. 207, 127 A.3d 1064 (2015). On remand, the petitioner submitted the exhibits from the previous habeas trial, an evaluation of the petitioner performed by forensic psychologist John Daignault, as well as his curriculum vitae, and the testimony of the petitioner and underlying counsel Amelia Ruggeri.
During the previous habeas trial, the trial court, Sferrazza, J., took testimony from the same witnesses, in addition to others. At that trial, the witnesses testified as follows:
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.Zavala v. CSSD Office of Adult Probation, Superior Court, Judicial District of Tolland, TSR-CV10-40033992-S (Nov. 7, 2011) [52 Conn.L.Rptr. 852, ].
On remand, the petitioner testified that he and Attorney Ruggeri did discuss the fact that the petitioner was not a citizen, however, she did not use the word " mandatory" in advising him of potential deportation consequences. He also testified that, had he known of the deportation consequences related to his conviction for aggravated felonies, he would not have plead guilty. His testimony on cross-examination was inconsistent with his direct testimony when he stated that he and underlying counsel " didn't discuss immigration."
Attorney Ruggeri testified similarly to her previous testimony, that she was aware of the petitioner's immigration status, that he was charged with aggravated felonies and specifically advised him that he would " definitely" be deported based on his pleas.
II
Discussion
In Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), the United States Supreme Court addressed the obligations of counsel during the plea bargaining process as to immigration consequences. The court wrote that: " The landscape of federal immigration law has changed dramatically over the last 90 years. While once there was only a narrow class of deportable offenses and judges wielded broad discretionary authority to prevent deportation, immigration reforms over time have expanded the class of deportable offenses and limited the authority of judges to alleviate the harsh consequences of deportation. The drastic measure of deportation or removal . . . is now virtually inevitable for a vast number of noncitizens convicted of crimes" (internal quotation marks omitted).
The court further noted that " [t]hese changes to our immigration law have dramatically raised the stakes of a noncitizen's criminal conviction. The importance of accurate legal advice for noncitizens accused of crimes has never been more important. These changes 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." Padilla v. Kentucky, supra, 559 U.S. 356. The 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., 358-359.
Finally, the court concluded that " [t]here will, therefore, undoubtedly be numerous situations in which the deportation consequences of a particular plea are unclear or uncertain. The duty of the private practitioner in such cases is more limited. 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., 369. " The 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. (Internal citation omitted.) (Internal quotation marks omitted.) Id., 374.
In Connecticut, the Supreme Court has held that the ruling in Padilla cannot be applied retroactively under state or federal law. Thiersaint v. Commissioner of Correction, 316 Conn. 89, 111 A.3d 829 (2015). That Court left for another day consideration of the issue of whether " gross misadvice" from counsel as to immigration consequences provides an exception to the retroactivity ruling in Thiersaint . The facts of this case do not compel this Court to consider that issue.
Most recently, on the issue of mandatory deportation for aggravated felonies, the Connecticut Supreme Court has held that " [a]lthough Padilla requires that counsel explain the meaning of federal law, it does not require counsel to predict whether or when federal authorities will pursue the client in order to carry out the deportation proceedings required by law. Nevertheless if counsel chooses to give advice or the client inquires about federal enforcement practices, counsel must still convey to the client that once federal authorities apprehend the client, deportation will be practically inevitable under federal law." Budziszewski v. Commissioner of Correction, 322 Conn. 504, 142 A.3d 243 (2016).
III
Motion to Dismiss
On remand, the respondent has filed a motion to dismiss the petition, asserting that the petitioner's claim fail to state a claim upon which habeas corpus relief can be granted as the pleas and convictions in the underlying matters pre-dated Padilla and, as such, counsel was under no affirmative duty to convey advice concerning immigration consequences to a criminal defendant. Between the decision of the first habeas court and the remand from the Appellate Court, the Connecticut Supreme Court decided Thiersaint, as discussed above. The petitioner's objection fails to offer any viable argument to distinguish this matter from the authority of Thiersaint .
This Court finds the facts in the instant matter fall squarely within the ambit of Thiersaint . To the extent the petitioner asserts that he relied on gross misadvice from underlying counsel, this Court resolves the issue in favor of the respondent by finding that the more credible and consistent evidence came from Attorney Ruggeri. The advice provided by counsel was not gross misadvice, as argued by the petitioner, but was in fact, as it relates to the substance of the claims in the petition, factually correct and legally accurate. This Court, were it to consider the merits, would find that the petitioner has failed to establish deficient performance.
IV
Conclusion
For the foregoing reasons, the court DISMISSES the petition for writ of habeas corpus. Judgment shall enter for the respondent.