Nester Quiroga v. Warden (2012)

MEMORANDUM OF DECISION MOTION TO REARGUE

On February 16, 2012, after a full day of trial, this court denied the petitioner's expedited petition for a writ of habeas corpus and issued a written memorandum of decision.   The petitioner had claimed in his amended petition that his trial attorney was ineffective in failing 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) make the petitioner's immigration status and the risk of deportation/removal part of the plea bargaining process.   The court found that the petitioner had failed establish his claims on the performance prong of the standard annunciated in Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

On February 21, 2012, the petitioner filed a motion to reargue the court's decision, asserting that the court “overlooked” certain “important principles of law” specifically that:  (1) “attorneys have a duty to fully advise their clients regarding plea offers” under Sanders v. Commissioner of Correction, 83 Conn.App. 543, cert. denied 271 Conn. 914 and Ebron v. Commissioner of Correction, 120 Conn.App. 560, cert. granted, 297 Conn. 912 (2010);  and (2) that under Padilla v. Kentucky, 559 U.S., 130 S.Ct. 1473 (2010), defense counsel's duty to advise a client regarding immigration consequences includes the “duty to make a client's immigration status part of the plea bargaining process.

The respondent filed an opposition memorandum to the petitioner's motion to reargue on February 22, 2012.   On February 23, 2012, the court heard argument on the motion to reargue.¹  Having reviewed the briefs and heard the arguments of the parties, the court grants the motion to reargue but denies the relief requested and affirms its memorandum of decision dated February 16, 2012.

The court disagrees that it overlooked the issues raised by the petitioner in his motion to reargue in its memorandum of decision, but clarifies its decision on these points.   While it cannot be disputed that Sanders v. Commissioner of Correction, supra, 83 Conn.App. 543 and Ebron v. Commissioner of Correction, supra, 120 Conn.App. 560 provide that plea offers must be fully and meaningfully explained by trial counsel to a defendant, these cases are otherwise inapplicable to this case.²  Neither Ebron or Sanders involved deportation issues generally or the precise issue in this case—that is, whether trial counsel properly advised the petitioner that he should seek to negotiate a better plea offer to avoid the immigration consequences of the plea offer or was required to make immigration consequences part of the plea bargaining process.   In fact, the United States Supreme Court has only recently held that defense counsel must advise clients on the deportation consequences of a plea offer.  Padilla v. Kentucky, supra, 559 U.S. Thus, Sanders and Ebron are factually distinct from this case.

The petitioner also claims that the court overlooked certain language in Padilla v. Kentucky, supra, that he argues supports his novel claim that counsel had a “duty to make a client's immigration status part of the plea bargaining process.”   The petitioner reads too much into this passage from Padilla, which provides:

Finally, informed consideration of possible deportation can only benefit both the State and noncitizen defendants during the plea-bargaining process.   By bringing deportation consequences into this process, the defense and prosecution may well be able to reach agreements that better satisfy the interests of both parties.   As in this case, a criminal episode may provide the basis for multiple charges, of which only a subset mandate deportation following conviction.   Counsel who possesses the most rudimentary understanding of the deportation consequences of a particular criminal offense may be able to plea bargain creatively with the prosecutor in order to craft a conviction and sentence that reduce the likelihood of deportation, as by avoiding a conviction for an offense that automatically triggers the removal consequence.   At the same time, the threat of deportation may provide the defendant with a powerful incentive to plead guilty to an offense that does not mandate that penalty in exchange for a dismissal of a charge that does.

Padilla v. Kentucky, supra, 559 U.S.

This language from Padilla is dicta only, reflecting the Supreme Court's view as to the possible positive consequences of its holding to the plea bargaining process.   This language does not oblige counsel, or prosecutors, to bring these issues into the plea bargaining process, or hold that counsel's failure to do so would constitute deficient performance.   In its memorandum of decision, this court noted that seeking to avoid deportation consequences through the plea bargaining process “could be advantageous,” but stated that it could not “say that it was deficient for [trial counsel] not to do so here.”

Other than the above quoted dicta in Padilla, the petitioner did not provide the court with any authority, and the court is not aware of any authority, that placed a duty on trial counsel in 2008 to specifically make deportation issues part of the plea negotiation process or generally to seek to negotiate any particular plea.   Absent such authority, this court is unable to stretch the limited holding in Padilla v. Kentucky to establish a new duty on trial counsel.

The actual holding of Padilla was as follows:  “[W]e now hold that counsel must inform her client whether his plea carries a risk of deportation.”  Id. Stated another way, in the opinion the Supreme Court stated:  “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, as it was in this case, the duty to give correct advice is equally clear.”  Id. In Padilla v. Kentucky, supra, trial counsel gave the defendant the wrong advice that he did not have to worry about his immigration status, when, in fact, the offense he was charged with was clearly a deportable offense.  Id.

In this case, this court found that trial counsel expressly advised the petitioner that if he accepted the plea offer, he was subject to mandatory deportation.   This was correct advice on the larceny charge.   As to the possession charge, there was some confusion as to whether trial counsel told the petitioner that he would be subject to mandatory deportation with no defense or that it was a deportable offense under federal law.   In any event, trial counsel properly informed the petitioner that he risked deportation if he accepted the plea offer, which is precisely what Padilla requires.

Additionally, stretching the holding of Padilla as the petitioner posits would require this court to break new legal ground in this area by requiring counsel to make the deportation consequences of a plea part of the plea bargaining process and to advise a defendant to hold out for a possible speculative plea.   Such a holding should not be applied to counsel's conduct in this case because the events in this case took place two years prior to the date Padilla was decided by the Supreme Court.   Just as counsel's failure to advance a novel legal theory cannot be the basis of a finding of ineffective assistance of counsel, the court cannot impose on counsel new obligations to advise clients not previously articulated by any court or other authority.   See, e.g., Ledbetter v. Commissioner of Correction, 275 Conn. 451, 461–2 (2005), cert. denied sub nom.  Ledbetter v. Lantz, 546 U.S. 1187, 126 S.Ct. 1368, 164 L.Ed.2d 77 (2006).

Accordingly, having allowed reargument, the court denies the relief requested and affirms its February 16, 2012 memorandum of decision.

Cobb, J.

FOOTNOTES

FN1. Counsel for the petitioner informed the court prior to argument on February 23, 2012, that based on her best information, the petitioner was still in the United States and had not yet been deported..  FN1. Counsel for the petitioner informed the court prior to argument on February 23, 2012, that based on her best information, the petitioner was still in the United States and had not yet been deported.

FN2. The petitioner's position on the application of Ebron and Sanders has been confusing at best.   During oral argument on February 15, 2012, when the court raised these cases, the petitioner's counsel expressly disavowed their applicability to this case.   In his motion to reargue, however, petitioner cited these cases in support of a number of contentions.   At argument on his motion to reargue, the petitioner explained that the Appellate Court's prejudice analysis in Ebron and Sanders is not relevant here but its analysis on the performance prong is applicable..  FN2. The petitioner's position on the application of Ebron and Sanders has been confusing at best.   During oral argument on February 15, 2012, when the court raised these cases, the petitioner's counsel expressly disavowed their applicability to this case.   In his motion to reargue, however, petitioner cited these cases in support of a number of contentions.   At argument on his motion to reargue, the petitioner explained that the Appellate Court's prejudice analysis in Ebron and Sanders is not relevant here but its analysis on the performance prong is applicable.

Cobb, Susan Quinn, J.