Nester Quiroga v. Warden (2012)

MEMORANDUM OF DECISION

The petitioner, Nester Quiroga, has brought this petition for habeas corpus claiming that his trial counsel was ineffective in not advising him with respect to the immigration consequences of his decision to plead guilty.   The court finds that the petitioner has failed to establish his burden to prove that the petitioner's trial counsel's conduct was deficient and therefore, denies the petition.

The matter was heard on an expedited basis on February 15, 2012 because the petitioner is presently in the custody of federal immigration authorities and subject to deportation any day.¹  At the habeas trial, the petitioner presented testimony from the following witnesses:  assistant state's attorney Mitchell Rubin, public defender Amelia Ruggeri, Attorney Anthony Collins, expert witness attorney Christopher Caldwell, Laura Batista, the petitioner's sister, Leida Lugo, petitioner's girlfriend and the mother of his son, and the petitioner.   A number of exhibits were also admitted.

Based on this evidence, the court finds the following facts:  On March 11, 2008, the petitioner entered a plea of guilty to larceny in the first degree and possession of narcotics stemming from two separate arrests and informations.   The trial court accepted the parties' plea agreement and sentenced the petitioner on each of the two dockets to two years incarceration, execution suspended, and three years probation.   The two sentences ran concurrent to one another for a total effective sentence of two years, execution suspended, and three years probation.   Prior to the petitioner's plea, he had been released on a promise to appear and therefore, had not been incarcerated for any period of time prior to the plea on any of the underlying charges.

The petitioner was represented at all times prior to and at the plea and sentencing proceedings by public defender Amelia Ruggeri.

At the time of the petitioner's plea, he was not a United States citizen but was a legal resident of the United States.   He was born in Uruguay and left there when he was five years old.   The petitioner has lived in the United States since he was twelve or thirteen years old.   Attorney Ruggeri was aware of the petitioner's status when she represented him.

Consistent with General Statutes 54–1j, during the plea canvass, the trial court questioned the petitioner as to the possible immigration consequences of his plea.   In particular, the trial court asked the petitioner:  “Do you understand that if you are not a U.S. citizen your pleas may result in your deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States?”   The petitioner responded “yes.”

At the trial in this case, Attorney Ruggeri had no recollection of her representation of the petitioner, but testified from certain notes she made in her file and from her general practices at the time of her representation of the petitioner.   Attorney Ruggeri discussed with the petitioner that he apply for the pretrial CADAC program to avoid a conviction, but the petitioner declined, stating that he did not want to undergo drug treatment.   Accordingly, Attorney Ruggeri did not pursue this option on the petitioner's behalf.   Because the petitioner had a prior record involving driving under the influence, he was not eligible for the acceleration rehabilitation program.

In March 2008 at the time the plea in this case was negotiated and imposed, Attorney Ruggeri had been trained regarding the immigration consequences of convictions on noncitizens of this United States and used and applied a set of guidelines that accurately set forth the immigration consequences of certain convictions.   Ruggeri considered the immigration issues important to the advice she provided to her clients.   Her practice consisted mostly of individuals facing possible deportation due their status in this country and the nature of their offenses.

Ruggeri's file in this case indicated that she discussed with the petitioner a number of times that, based on his status as a non-resident and the nature of the charges, he faced the possibility of deportation.

Ruggeri believed that as to the larceny and possession charges, the state had strong evidence to prove the petitioner's guilt.   As to the possession charge, petitioner was stopped for trespassing and found to have narcotics in his possession.   As to the larceny charge, the petitioner had initially lied about taking the vehicle, then confessed to taking it and the state had a video that showed that the petitioner did not return the vehicle.   The petitioner indicated that he loaned the vehicle to a drug source in exchange for drugs.   If the petitioner were found guilty on the two charges after a trial, his total exposure was twenty-seven years.

At the time of the petitioner's arrest he had a drug addiction, which started several years earlier after he was diagnosed with multiple sclerosis.

On March 11, 2008, after Attorney Ruggeri received from the state the plea offer of two years, execution suspended, three years probation and consistent with her general practice, she advised the petitioner that if he pleaded guilty to the larceny and possession charges and accepted a possible two-year sentence that he would be subject to mandatory deportation at some time in the future when the immigration authorities became aware of the convictions.   Her view was that the offer was good because it did not involve any jail time, but she left the ultimate decision as to whether to accept or reject the plea offer to the petitioner.

Although a conviction for possession of narcotics was a deportable offense under federal law, as to that charge, the petitioner would be able to assert a defense.   There was no such defense as to the larceny first conviction, because the petitioner's sentence was for more than one year.²

Ruggeri did not proffer a counter-offer or attempt to obtain a different offer from the prosecutor or judge that would avoid the mandatory deportation on the aggravated charge of larceny first and she expressed no strategic reason for not doing so.

When the petitioner was arrested on the charges, he was released on a promise to appear and therefore did not spend any time in prison prior to the disposition of his case by his plea of guilty.

After the petitioner was sentenced, he was released to probation for a three-year period.   While on probation, the petitioner committed another drug crime and on August 7, 2010, was charged with a violation of probation.

The petitioner hired Anthony Collins to represent him on the charge of violation of probation and to advise him on immigration issues.   Attorney Collins told the petitioner that there was no viable immigration defense to the petitioner's conviction for larceny in the first degree due to his two-year sentence, and advised him that the only legal avenue the petitioner had to avoid deportation was to seek a modification of the sentence on the larceny in connection with the violation of probation hearing.   Attorney Collins called Attorney Ruggeri to discuss the issue with her, seek her advice and determine if she could have any influence with the court in altering the original sentence to avoid the deportation consequences.   Ruggeri was unwilling to help, indicating that “I did not have to know that back then.”

Collins had a pretrial with assistant state's attorney Rubin and Judge Comerford to discuss a possible resolution.   Both Rubin and Judge Comerford told Collins that immigration issues should be addressed during the plea negotiation process and not after a sentence was imposed in accordance with a plea agreement, and refused to entertain plea negotiations on new charges that would alter the previously imposed sentence on the underlying charges.   The petitioner then pleaded guilty to the violation of probation and received a one-year sentence.   The court is not clear as to the resolution of the new drug charge, except that there was testimony that it was a deportable offense.

While incarcerated related to the violation of probation, the petitioner claims that he became aware that his prior convictions had immigration consequences and came to the attention of the federal immigration authorities.   At the time of the habeas hearing in this case the petitioner was being held in a federal facility in the state of Alabama awaiting deportation.   After his last request for a continuance of deportation pending the outcome of this habeas trial was denied, the petitioner could be deported from this country any day.   Once deported, and due to the nature of his offense, he will not be allowed to return to this country under federal law.

Collins, an expert on immigration law matters, believed that based on petitioner's years in this country, family connections, health issues, and lack of prior serious record, that petitioner would have a strong probability to prevail on a cancelation on of his deportation if he did not have the aggravated larceny conviction on his record.   He believed this to be true even though the petitioner subsequently violated his probation by committing another drug offense which would also subject the petitioner to deportation.

The petitioner presented the testimony of Attorney Christopher Caldwell, who testified as an expert witness.   Caldwell specializes in criminal defense matters with immigration consequences.   He expressed his view that since 2004, after the Second Circuit's decision in Abimbola v. Ashcroft, 378 F.3d 173 (2nd Cir.2004), defense attorneys in Connecticut have been on notice that conviction of a larceny accompanied by a sentence of a year or more, is considered an “aggregated felony” under federal law, and if a defendant is convicted and sentenced to a year or more that he would be subject to deportation.   Accordingly, Caldwell's view is that defense attorneys are and have been since the Abimbola decision was issued to advise clients as to the immigration consequences of such a plea.   This view was consistent with Attorney Ruggeri's testimony that in 2007 and 2008 she was aware that that a conviction for a larceny in the first degree subjected a defendant to deportation, that she was trained on immigration consequences of convictions.

In Attorney Caldwell's view in 2008, criminal defense attorneys should have been aware of a defendant's immigration status and the immigration consequences of a conviction and that defense attorneys have a duty to attempt to negotiate or craft plea deals that result in the minimum immigration or deportation consequences.   He opined that once Ruggeri knew of the immigration consequences of a conviction for larceny first, that she should have presented counteroffers to the state that would avoid automatic mandatory deportation.   For example, in this case, trial counsel could have pursued a counter-offer with the state or the court that the petitioner receive a prison sentence on the narcotics charge to which he would have a defense to deportation and a fine or conditional discharge on the larceny first.   Caldwell believed that such a strategy would be effective in this case because the state was not seeking jail on either charge and with respect to the larceny, the property had been returned and the petitioner paid restitution.   Caldwell also indicated that the petitioner should have been advised about these potential plea strategies prior to his accepting the plea.

Caldwell also indicated that in his experience knowing Rubin and Judge Commerford and having been involved in similar plea negations, had they been approached with reasonable alternatives prior to the plea and sentence, they would have been open to such a counter-offer.

Attorney Rubin was the assistant state's attorney in this matter and testified that he had no present recollection of the petitioner's case.   Although he testified that his offer was not intended to result in the petitioner's deportation, there was no evidence, because neither side asked him, that Rubin made any other offers in this case or would have been receptive to crafting a plea deal in this case that would result in the petitioner avoiding deportation by limiting his deportation exposure.

The petitioner also testified at trial.   He testified that the first time he learned of any offer was on March 11, 2008, the day he entered his plea of guilty, and that prior to entering his plea, Attorney Ruggeri did not inform him that the convictions would result in possible deportation.   He claims that trial counsel told him “today is your lucky day” because “you do not have to go to jail.”   She expressed her view that the offer was a good one and he should take it.   When the court warned the petitioner about potential immigration consequences of his convictions, the petitioner claims that he did not believe that those consequences applied to him because Ruggeri had not told him about any such consequences.   Petitioner claims that had he known that he would be subject to mandatory deportation, he would not have pleaded guilty under the terms of the plea offer and would have opted to go to trial.   In addition, had he know there were other potential plea strategies, he would have opted to pursue them, even if such an alternative sentence would involve time in prison.

In his petition, the petitioner claims that his trial counsel, Attorney Ruggeri, failed to (1) adequately research the legal issue of the petitioner's immigration status and the risk of deportation/removal;  (2) accurately advise the petitioner about the risk of deportation/removal and (3) failed to make the petitioner's immigration status and the risk of deportation/removal part of the plea bargaining process.   For relief, the petitioner seeks an order of this court vacating the judgment of conviction.

The court agrees with the parties that because this case involves an ineffective assistance claim involving a guilty plea this case is governed by Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) as modified by Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).

It is now well established that “[a] criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings.  Strickland v. Washington, [466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ].   This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution.  Baez v. Commissioner of Correction, 34 Conn.App. 236, 242–43, 641 A.2d 147, cert. denied, 231 Conn. 905, 906, 648 A.2d 149 (1994).   Pretrial negotiations implicating the decision of whether to plead guilty is a critical stage in criminal proceedings;  Colson v. Smith, 438 F.2d 1075, 1078 (5th Cir.1971);  and plea bargaining is an integral component of the criminal justice system and essential to the expeditious and fair administration of our courts.  Blackledge v. Allison, 431 U.S. 63, 71, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977);  see Statewide Grievance Committee v. Whitney, 227 Conn. 829, 842, 633 A.2d 296 (1993).

“Although this decision [to plead guilty] is ultimately made by the defendant, the defendant's attorney must make an informed evaluation of the options and determine which alternative will offer the defendant the most favorable outcome.   A defendant relies heavily upon counsel's independent evaluation of the charges and defenses, applicable law, the evidence and the risks and probable outcome of a trial.   The right to effective assistance of counsel includes an adequate investigation of the case to determine facts relevant to the merits or to the punishment in the event of conviction.  Siemon v. Stoughton, 184 Conn. 547, 556 n.3, 440 A.2d 210 (1981).”  Copas v. Commissioner, supra, 234 Conn. 154.

“The longstanding test for determining the validity of a guilty plea is ‘whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.’  North Carolina v. Alford, 400 U.S. 25, 31 [91 S.Ct. 160, 27 L.Ed.2d 162] (1970);  see Boykin v. Alabama, 395 U.S. 238, 242 [89 S.Ct. 1709, 23 L.Ed.2d 274] (1969);  Machibroda v. United States, 368 U.S. 487, 493 [82 S.Ct. 510, 7 L.Ed.2d 473] (1962).”  Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).

To establish his claim of ineffective assistance, the petitioner has the burden to show that “(1) counsel's representation fell below an objective standard of reasonableness, and (2) counsel's deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance.”  (Emphasis in original.)  Johnson v. Commissioner of Correction, 285 Conn. 556, 575, 941 A.2d 248 (2008).   The Connecticut Supreme Court has explained that:  “The first prong requires a showing that ‘counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the [s]ixth [a]mendment.'  “ Johnson v. Commissioner, supra, 285 Conn. 576, quoting Strickland v. Washington, supra, 466 U.S. 687.   With respect to the prejudice prong applied to claims of ineffective assistance when the conviction resulted from a guilty plea, the petitioner must demonstrate “that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial.”  Johnson v. Commissioner of Correction, supra, 285 Conn. 576, quoting Hill v. Lockhart, supra, 474 U.S. 59.

In Padilla v. Kentucky, 599 U.S. 130 S.Ct. 1473 (2010), the United States Supreme court held that trial counsel “must inform her client whether his plea carries a risk of deportation.” ³

On this record, the court cannot find that trial counsel made errors so serious that she was not functioning as the ‘counsel’ guaranteed the defendant by the sixth amendment.   The court credits the testimony of Attorney Ruggeri that she was sufficiently knowledgeable about the immigration consequences of convictions on non-citizen criminal defendants, having received training on those issues from the public defender's office.   She also had available to her thorough and extensive guidelines provided by the public defender's office to assess the possible immigration consequences when representing non-citizen defendants in criminal proceedings.   Attorney Ruggeri routinely used and applied those guidelines when representing non-citizen defendants, and used the guidelines in this case to determine that the plea offer in this case, if accepted and imposed, would have deportation consequences.   In particular, she correctly advised the petitioner that if he pleaded guilty to the charge of larceny in the first degree and accepted a sentence of two years, that he was subject to mandatory deportation.   As to the possession charge, Ruggeri advised the petitioner that conviction of that charge was at a minimum a deportable offense.

The court credits the petitioner's testimony that Attorney Ruggeri told him that the offer was “a good one” because it did not include any period of incarceration However, the court does not credit the petitioner's claim that Attorney Ruggeri did not advise him about that he could be deported if he accepted this plea offer.

The court's decision not to credit the petitioner on this point is influenced by the fact that the petitioner refused to pursue a CADAC application pursuant to General Statutes § 17a–696 because he did not want to undergo drug treatment.   His counsel had made the petitioner aware of the risks of a conviction on the charges.   The CADAC program, if granted by the court and successfully completed by the petitioner, could have resulted in no convictions and therefore no deportation consequences.   The petitioner's decision to forgo a program that could result in the dismissal of the charges and therefore no conviction record, demonstrates that the petitioner was not concerned with the possible immigration consequences of his situation.   The petitioner's claim that is also belied by the fact that the trial court expressly warned the petitioner during the plea canvass that if he was not a United States citizen, which he was not, his conviction could result in deportation consequences.   The petitioner responded to the trial court's inquiry on this point that he understood, and did not alert the court to any concerns he may have had with respect to the impact of the plea on his immigration status.   The court concludes that petitioner did not raise any concerns with the court because he understood the risk and chose to accept the plea agreement of no jail time.⁴

Thus as to the petitioner's first two claims—failure to research the immigration issues and provide accurate advise to the petitioner about the risks of deportation—the court finds that he has not met his burden to prove that his counsel's conduct fell below the objective standard of reasonableness.

The petitioner's third claim is that Attorney Ruggeri's conduct fell below the objective standard of reasonableness because she failed to pursue an alternative plea offer or make a counteroffer to the state that would take into consideration the petitioner's immigration status and result in a more favorable outcome for the petitioner that would allow him to avoid or minimize immigration impacts.   The court is not aware of any legal authority, and the petitioner has not provided any, that imposes such a duty on defense counsel in the context of a claim of ineffective assistance of counsel pertaining to a plea, or as is the case here that imposes such a duty on defense counsel to avoid deportation consequences.

While such an approach could be advantageous, the court cannot say that it was deficient for Attorney Ruggeri not to do so here.   The fact is that she was presented with an offer from the state, she presented that offer to the defendant, as she is required to do, she correctly advised him that if he accepted the offer, he could be deported, that the offer was a good offer because it did not contain jail time and that the decision to accept or reject the offer was his decision.   Knowing this information, the petitioner accepted the offer, after a full and proper canvass by the court on the deportation issue.

Additionally, the petitioner has presented no evidence, other than the suppositions of Attorney Caldwell that the state had made, was prepared to make a different offer or would be receptive to a counter-offer that would minimize the deportation consequences on this petitioner.   Attorney Rubin testified in this case but was not asked if he would have agreed to a disposition that would have resulted in an unconditional discharge or fine on the larceny first charge in order to assist the petitioner avoid immigration consequences.⁵  Without such an offer in hand, or at least a concession by the state that it would have considered such an approach in this case, the court can hardly find trial counsel's conduct deficient in failing to advise her client that such a speculative offer was a viable option in this case.   See e.g. Gudino v. Commissioner, 123 Conn.App. 719, 724, cert. denied 299 Conn. 905, 10 A.3d 522 (2010).

Accordingly, the court finds that the petitioner has not met his burden to prove that trial counsel's conduct was deficient on his third claim.

Having determined that trial counsel's conduct was not deficient, it is not necessary for the court to determine the second prong of the test that the petitioner was prejudiced.  Faraday v. Commissioner of Correction, 107 Conn.App. 769, 773, 946 A.2d 891 (2008) (failure to prove either the performance or prejudice prong is fatal to a habeas petition).

Accordingly, the petition is denied.   So ordered.

Cobb, J.

FOOTNOTES

FN1. Because the petitioner was subject to deportation at any time, the court expedited its decision in this case..  FN1. Because the petitioner was subject to deportation at any time, the court expedited its decision in this case.

FN2. The relevant federal authorities are:  8 U.S.C. § 1101, 1226, 1227 and 1229b..  FN2. The relevant federal authorities are:  8 U.S.C. § 1101, 1226, 1227 and 1229b.

FN3. Courts are split as to whether the holding in Padilla v. Kentucky is retroactive.   Neither the Connecticut Supreme Court, the United States Supreme Court nor the second circuit has decided this issue.   In view of the testimony of both Attorneys Ruggeri and Caldwell that it was the standard practice of attorneys in Connecticut to advise non-citizens as to immigration consequences in 2008, and this court's decision that trial counsel properly advised the petitioner regarding immigration consequences of his plea, the court does not have to decide whether Padilla v. Kentucky, 130 S.Ct. 1473 (2010), decided two years after the plea in this case, is retroactive and applicable to this case..  FN3. Courts are split as to whether the holding in Padilla v. Kentucky is retroactive.   Neither the Connecticut Supreme Court, the United States Supreme Court nor the second circuit has decided this issue.   In view of the testimony of both Attorneys Ruggeri and Caldwell that it was the standard practice of attorneys in Connecticut to advise non-citizens as to immigration consequences in 2008, and this court's decision that trial counsel properly advised the petitioner regarding immigration consequences of his plea, the court does not have to decide whether Padilla v. Kentucky, 130 S.Ct. 1473 (2010), decided two years after the plea in this case, is retroactive and applicable to this case.

FN4. The court points out that while it is possible that the federal authorities may have attempted to deport the petitioner had he not been subsequently arrested and incarcerated, it is clear in this case that the petitioner is in his present predicament because while on probation for the underlying crimes, he was arrested and charged with a new drug possession offense which resulted in a violation of probation.   That violation resulted in a prison sentence which alerted the federal authorities to his prior convictions which were deportable offenses under federal law.   Thus, it was only after his violation of probation that the federal authorities placed a detainer on him and actively sought to deport him..  FN4. The court points out that while it is possible that the federal authorities may have attempted to deport the petitioner had he not been subsequently arrested and incarcerated, it is clear in this case that the petitioner is in his present predicament because while on probation for the underlying crimes, he was arrested and charged with a new drug possession offense which resulted in a violation of probation.   That violation resulted in a prison sentence which alerted the federal authorities to his prior convictions which were deportable offenses under federal law.   Thus, it was only after his violation of probation that the federal authorities placed a detainer on him and actively sought to deport him.

FN5. Larceny in the first degree is a B felony which subjects a criminal defendant to a sentence of 1–20 years.   Under federal law if a defendant receives a possible sentence of more than 1 year, it is considered an aggravated felony and the defendant is subject to mandatory deportation.   Here, therefore, in order avoid that result on this charge, the petitioner would have need to receive and unconditional discharge or fine, because under Connecticut law, a B felony requires a minimum of a one-year sentence.  General Statutes § 53a–35..  FN5. Larceny in the first degree is a B felony which subjects a criminal defendant to a sentence of 1–20 years.   Under federal law if a defendant receives a possible sentence of more than 1 year, it is considered an aggravated felony and the defendant is subject to mandatory deportation.   Here, therefore, in order avoid that result on this charge, the petitioner would have need to receive and unconditional discharge or fine, because under Connecticut law, a B felony requires a minimum of a one-year sentence.  General Statutes § 53a–35.

Cobb, Susan Quinn, J.