360595 v. Warden (2012)

MEMORANDUM OF DECISION

The petitioner, Adrien Bakrina, brings this petition for a writ of habeas corpus claiming that his trial attorney was ineffective in failing to accurately advise him of the immigration consequences of his conviction after a guilty plea.   The court finds the issues for petitioner and vacates his pleas and convictions.

The court finds the following facts:  The petitioner, who is approximately 24 years old, is a permanent resident of the United States.   He is a native of the country of Albania.   In 1990, the petitioner's father fled from Albania to the United States after being mistreated during the communist rule.   Five years later in 1995, when the petitioner was seven years old, he and other family members joined the petitioner's father in the United States.   All of the petitioner's immediate family, including his three year-old-son and his fiancée, live in the Hartford area.   The petitioner has no family in Albania and does not speak the Albanian language.   At the time of his guilty plea, the petitioner had taken a semester off from college and had no criminal record.

On July 2, 2008, the petitioner was arrested and charged with robbery in the first degree in violation of General Statutes § 53a–134(a)(4) ¹ and conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a–48 and 53–134(a)(4), as well as other charges.   After serving 135 days in prison, on November 24, 2008, the petitioner pleaded guilty to the robbery and conspiracy charges with a recommendation by the state that the petitioner receive a sentence of seven years, execution suspended, three years probation.   During the trial court's canvass of the petitioner, the court, pursuant to General Statutes § 54–1j, asked the petitioner:  “And, if you are not a citizen of the United States, you could be deported, excluded from admission to the United States or denied naturalization.   Do you understand that?”   The petitioner responded:  “Yes, your honor.”

The trial court accepted the plea agreement and the petitioner was then released on a promise to appear.   On April 7, 2009, the petitioner was sentenced in accordance with the plea agreement to seven years, execution suspended, and three years probation.

While on probation on March 14, 2011, the petitioner was detained and held by federal immigration authorities and found to be removable as an alien, having been convicted of the particularly serious crime of first degree robbery.   Under federal law, a conviction of such a crime is an “aggravated felony,” and subjected the petitioner to mandatory removal, making him ineligible for most forms of relief under federal law.   See e.g. Ganzhi v. Holder, 624 F.3d 23 (2d Cir.2010).   The petitioner's challenge to the federal order of removal was denied and all of his appeals of that order have been exhausted.   As a result, the petitioner could be removed from United States and returned to Albania at any time.   He is presently being detained in a federal immigration facility in Massachusetts, pending deportation resulting from his convictions.

During the criminal proceedings and at the time the petitioner entered his guilty plea and was sentenced, the petitioner was represented by private counsel, Carmine Giuliano.   Mr. Giuliano admitted in an affidavit submitted with the petition in this case that he did not advise the petitioner about the immigration consequences of his plea.   At the trial in this case, Mr. Giuliano explained that although the state had a strong case against the petitioner, he believed that the petitioner had a defense to the charges.   Prior to trial, the state offered the petitioner, what counsel believed was a “good” plea offer, which the petitioner accepted, of seven years, execution suspended after time served and three years probation.

When trial counsel advised the petitioner regarding the plea offer and whether to accept it, he was not well versed in immigration issues, and did not know if the plea would result in deportation.   Giuliano believed, incorrectly, and advised the petitioner, that because the petitioner had lived in the United States for so long since he was seven years old, that he would be allowed to remain in the United States.   Giuliano advised the petitioner to accept the state's offer.   In addition, Giuliano told the petitioner that the court would canvass him concerning the plea and would ask him whether he understood that he could be removed from the United States if he was not a citizen.   Guiliano told the petitioner to respond “yes” to this question because he believed, incorrectly, that the length of time the petitioner resided in the United States was sufficient to avoid removal.   In fact, when the trial court asked the petitioner during the plea canvass if he understood that if he was not a citizen of the United States he could be removed under federal law, the petitioner say “yes,” consistent with his counsel's advice.

Under federal law, a nonresident of the United States convicted of an aggravated felony is subject to mandatory removal from the United States to which the various defenses to deportation do not apply.  8 U.S.C. § 1227(a)(2)(A)(iii);  Ganzhi v. Holder, supra, 624 F.3d 23.   Because the petitioner was convicted of an aggravated felony he was subject to mandatory removal and the length of time he lived in this country was irrelevant.

Trial counsel admitted at the trial in this case that he unknowingly provided the petitioner with the wrong advice regarding whether he would be deported, and that he now provides a more thorough advisement regarding immigration issues to his clients.

A. Standard

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).  ‘[Plea bargaining] leads to prompt and largely final disposition of most criminal cases;  it avoids much of the corrosive impact of enforced idleness during pretrial confinement for those who are denied release pending trial;  it protects the public from those accused persons who are prone to continue criminal conduct even while on pretrial release;  and, by shortening the time between charge and disposition, it enhances whatever may be the rehabilitative prospects of the guilty when they are ultimately imprisoned.’  (Internal quotation marks omitted.)   Statewide Grievance Committee v. Whitney, supra, 842.”  Copas v. Commissioner of Correction, 234 Conn. 139, 153–54, 662 A.2d 718 (1995).   See also Missouri v. Frye, 566 U.S. (2012);  Lafler v. Cooper, 566 U.S. (2012).

The decision to plead guilty is “ordinarily the most important single decision in any criminal case.”  Ebron v. Commissioner of Correction, 120 Conn.App. 560, 992 A.2d 1200, cert. granted 297 Conn. 912, quoting Boria v. Keane, 99 F.3d 492, 496–97 (2d Cir.1996), cert. denied, 521 U.S. 1118, 117 S.Ct. 2508, 138 L.Ed.2d 1012 (1997).  “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).

Because this cases involves an ineffective assistance claim involving a guilty plea it 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).   Under Strickland, supra, 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).   See also, Copas v. Commissioner, supra, 234 Conn. 139.

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 Supreme Court modified the test in Hill v. Lockhart, supra, 474 U.S. 56 to require the petitioner to 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;  Copas v. Commissioner, 234 Conn. 139, 163 (1995).

B. Retroactivity of Padilla v. Kentucky

In Padilla v. Kentucky, 559 U.S. 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), the United States Supreme Court held that trial counsel “must inform her client whether his plea carries a risk of deportation.”   The court explained that:  “[R]ecent changes in our immigration law have made removal nearly an automatic result for a broad class of noncitizen offenders.”  “The importance of accurate legal advice for noncitizens accused of crimes has never been more important ․ [A]s 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.”   The Supreme Court concluded that:  “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., 11–12.

Since Padilla was decided on March 31, 2010, more than two years after the petitioner plead guilty in this case, the court must decide the threshold question of whether the Supreme Court's holding in Padilla is retroactive and applicable to this case.   The court concludes that the Padilla court majority intended that its decision be applied retroactively.

The Supreme Court in Padilla v. Kentucky, supra, did not address the issue of the retroactivity of the decision, and that Court has yet to resolve the issue.   Courts across the country that have addressed the issue are split as to whether the holding in Padilla v. Kentucky is retroactive.²  Neither the Connecticut Supreme nor Appellate Courts have had occasion to decide the issue of retroactivity, nor has the Second Circuit Court of Appeals.³  Although other Connecticut state habeas courts have been presented with Padilla claims, those courts have, for various reasons, resolved those cases without the necessity of addressing the retroactively issue.   Quiroga v. Warden, Judicial District of Tolland, Docket No. 11–4004067, (February 16, 2012, Cobb, J.);   reargument denied, (February 24, 2012) (petitioner failed to show that his counsel's performance was deficient);  Zavala v. CSSD Office of Adult Probation, Superior Court, judicial district of Tolland, Docket No. CV10 4003992 (Nov. 7, 2011, Sferrazza, J.) [52 Conn. L. Rptr. 852] (2011 Ct.Sup. 23240) (failure to show prejudice);  Williams v. Warden, Superior Court, judicial district of Tolland, Docket No. CV10 4003422 S (Oct. 3, 2011, Bright, J.) (2011 Ct.Sup. 21149) (failure to show deficient performance and prejudice);  Zuberi v. Warden, Superior Court, judicial district of Tolland, Docket No. CV 09 4003118 (April 15, 2011, T. Santos, J.) (2011 Ct.Sup. 9567) (failure to show both deficient performance and prejudice);  Colas v. Warden, Superior Court, judicial district of Tolland, Docket No. CV CV09–4003287 (March 17, 2011, Mullarkey, J.) (011 Ct.Sup. 7269) (failure to show prejudice).   Thus, this is an issue of first impression for this court.

The petitioner urges this court to adopt the view annunciated by the Third Circuit Court of Appeals in United States v. Orocio, 645 F.3d 630, 643 (3rd Cir.2011), that Padilla did not establish a “new rule,” particularly in Connecticut where a court advisement regarding the immigration consequences of a plea has been required for two decades, and therefore, can be applied retroactively to this case.   See General Statutes § 54–1j.   The respondent urges this court to follow the decisions of the Seventh and Tenth Circuit Courts of Appeals and other courts that have concluded that Padilla announced a “new rule” of constitutional criminal procedure and under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), such a new rule cannot be applied retroactively to this case.   See Chaidez v. United States, 655 F.3d 684 (7th Cir.2011);  United States v. Chang Hong, (10th Cir.2011).

The Connecticut Supreme Court has followed Teague v. Lane, supra, 489 U.S. 288 in deciding whether a constitutional principle may be applied retroactively in criminal cases on collateral review.  Duperry v. Solnit, 261 Conn. 309, 318–19, 803 A.2d 287 (2002);  Johnson v. Warden, 218 Conn. 791, 797, 591 A.2d 407 (1991);  Larkin v. Commissioner of Correction, 45 Conn.App. 809, 814–15, 699 A.2d 207 (1997).   In Teague v. Lane, 489 U.S. 288, the Supreme Court clarified that a criminal defendant seeking to collaterally attack a conviction may not rely on a new constitutional rule of criminal procedure identified only after the date of the conviction became final.   A rule is “new” “if the result was not dictated by precedent existing at the time the defendant's conviction became final.”  United States v. Orocio, 645 F.3d 637, quoting Teague v. Lane, 489 U.S. 301.  “By contrast, an “old rule,” applies on both direct and collateral review and applies an old rule in a new context.   See Whorton v. Bockting, 549 U.S. 406, 416, 127 S.Ct. 1173, 167 L.Ed.2d 1 (2007).”  Id., 637.   A “new rule” may only be applied retroactively to cases on collateral review if one of two exceptions apply:  (1) the new rule places certain kinds of criminal conduct beyond the power of the criminal lawmaking authority to proscribe;  or (2) the new rule is a “water-shed rule [ ] of criminal procedure” that “alter[s] our understanding of the bedrock procedural elements that must be found to vitiate the fairness of a particular conviction.”  Teague v. Lane, supra, 489 U.S. 311 (emphasis in original) (internal quotation marks omitted).   Thus, if Padilla, supra, did not announce a “new rule” but merely applied an old rule in a new context then the petitioner is entitled to invoke the protection of Padilla even though his conviction had achieved finality prior to Padilla.   However, if Padilla announced a “new rule,” then the petitioner would have to show that it falls within one of the two Teague v. Lane exceptions.

Since Teague v. Lane, supra was decided, the Supreme Court decided Danforth v. Minnesota, 552 U.S. 264, 128 S.Ct. 1029, 169 L.Ed.2d 189 (2008), in which it explained that its decision in Teague v. Lane, was “tailored to the unique context of federal habeas and therefore had no bearing on whether States could provide broader relief in their own post conviction proceedings than required by that opinion.”   The Supreme Court found that the rule in Teague v. Lane was “intended to limit the authority of federal courts to overturn state convictions—not to limit a state court's authority to grant relief for violations of new rules of constitutional law when reviewing its own State's convictions.”  Id. Since no Connecticut appellate court has ruled on the Padilla retroactively question or determined whether a broader standard for assessing retroactivity in this context other than Teague v. Lane, supra, the court applies the Teague standard to this case.

The court is persuaded by the analysis contained in federal and state cases holding that the Padilla holding does not constitute a “new rule” but rather is an extension of the Strickland standard, and therefore may be applied retroactively.   See United States v. Orocio, 645 F.3d 630, 643 (3rd Cir.2011);  United States v. Chaidez, 730 F.Sup.2d 896 (N.D.Ill, 2010);  Marroquin v. United States, 2011 U.S. Dist. LEXIS 11406 (S.D.Tex.2011);  Commonwealth v. Clarke, 460 Mass. 30 (2011).   Because this court's decision is expedited,⁴ it does not set forth all of the arguments in support of applying Padilla retroactively, but refers the parties to the cases cited herein.

Suffice it to say that this court is persuaded by language in, and not in, the Padilla decision that evinces that Court's intent that the decision be applied retroactively.   First, the Padilla Court does not state that its holding is a “new rule” that is only to be applied to future cases, and applied its holding in that case.   The Supreme Court generally eschews applying a “new rule,” intended to be applied retroactively only, to the case in which the new rule is announced.   See Teague v. Lane, 489 U.S. 302–03.   Had the court in Padilla established a truly new rule meant to be applied prospectively only, it likely would not have applied the new rule in that case.  United States v. Chaidez, supra, 730 F.Sup.2d 903.   However, it did apply its holding to Padilla's case thus evincing the Padilla Court's intent that the case be applied retroactively.

In addition, in Padilla, the Court applied the well established Strickland standard in rendering its holding in that case and in doing so, discussed and applied well established “professional norms” on the necessity and importance of criminal defense counsel to advise their clients on the immigration consequences of their pleas.  Padilla v. Kentucky, supra, 9–11.   In particular, the court stated:  “It is quintessentially the duty of counsel to provide her client with available advice about an issue like deportation and the failure to do so ‘clearly satisfies the first prong of the Strickland analysis' “ Id., 13, quoting Hill, 474 U.S. 52, 62 (1985).

Also, the Padilla Court expressly rejected the Solicitor General's argument that the decision would open the “floodgates” to habeas petitions claiming ineffective assistance of counsel related to advice on immigration consequences, stating:  “It seems unlikely that our decision today will have a significant effect on those convictions already obtained as a result of plea bargains.   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.”  Padilla, supra, 15 (emphasis added.)   By this language, the Padilla Court acknowledged that its holding will be applied in cases, like this one, in which convictions have been obtained by way of a plea agreement.   However, the Court appears to suggest that since the professional norms across the country are such the counsel generally provides such advice concerning immigration consequences, there is not likely to be a “floodgates” problem.

Finally, since the enactment of General Statutes § 54–1j, criminal courts in Connecticut have included as part of their plea canvasses an advisement that “if the defendant is not a citizen of the United States, conviction of the offense for which the defendant has been charged may have the consequences of deportation or removal from the United States, exclusion from readmission to the United States or denial of naturalization, pursuant to the laws of the United States.” ⁵  “[T]he statute, on its face, turns on communication between the defendant and his attorney about immigration consequences.”   State v. Hall, 303 Conn. 527, 535 (2012).   Pursuant to § 54–1j, “[i]f the defendant has not discussed these possible consequences with the defendant's attorney, the court shall permit the defendant to do so prior to accepting the defendant's plea.”   In determining whether a defendant understands the possible immigration consequences of a plea, the court may justifiably rely on representations of defense counsel that he or she has explained such consequences to the defendant.  State v. Hall, supra, 303 Conn. 525 (Absent some indication to the contrary, a court is entitled to rely on counsel's representations on behalf of his or her client”).  “Clearly, then, based on the text of the statute, the legislature was primarily concerned with ensuring that defendants engage in a conversation with their counsel, not the court, regarding the immigration consequences of guilty pleas.”  Id., 536 (emphasis added).

The existence and application of § 54–1j is further evidence of an established professional norm in this state, that the defendant's counsel discuss the immigration consequences of his plea with the defendant.   Such a practice, while statutory, constitutes additional support for the view that, at least in Connecticut, the requirement that counsel advise his or her client regarding the immigration consequences of a plea agreement is not a “new rule” that breaks new ground.

Accordingly, for the foregoing reasons, the court finds that the decision in Padilla may be applied retroactively to this case.

C. Performance Prong of Strickland

Having found that the decision in Padilla v. Kentucky, supra, may be applied retroactively to this case, the court must decide whether the petitioner has established that counsel's conduct fell below the objective standard of reasonableness.  Strickland v. Washington, supra, 466 U.S. 687.   The court finds that the petitioner has met his burden to show that his counsel's conduct was constitutionally deficient.

The facts of this case are essentially the same as the facts in the Padilla case.   As in Padilla, the terms of the relevant federal immigration statutes are clear and explicit.   Under 8 U.S.C. § 1227(a)(2)(A)(iii), “[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable.”  “Aggravated felony” is defined in 8 U.S.C. § 1101(a)(43)(A) to include a theft or firearms offense in which the sentence is more than one year.   The charges here, robbery in the first degree under General Statutes § 53a–134(a)(4) involved a theft crime and a firearm and subjected the petitioner to more than one year in prison.   The offenses were therefore, deportable offenses under federal law.   Like in Padilla, petitioner's counsel could have “easily determined that his plea would make him eligible for deportation simply from reading the text of the statute ․” Id. Petitioner's counsel admitted here that he did know that a conviction for robbery in the first degree with a firearm would constitute a deportable offense under federal law.

Instead, like in Padilla, counsel provided the petitioner with the “false assurance that his conviction would not result in his removal from this country.”  Id. Attorney Guilaino told the petitioner that he would not be deported as a result of his plea to robbery in the first degree and conspiracy to commit robbery in the first degree because he had resided in the United States for such a long time.   This advice was contrary to federal law which provides that a conviction for a robbery first is considered an aggregated felony under federal law and subjected the petitioner to mandatory deportation.   There was no defense under federal law that the petitioner had been in this country since he was seven years old.   The petitioner relied on his counsel's advice and pleaded guilty to the charges.   As a result, the petitioner is now poised to be deported any day.

The Supreme Court found that counsel's conduct of misadvising the petitioner regarding the immigration consequences of his plea, defendant constituted deficient performance under Strickland.   The facts and holding of the Padilla cases are equally applicable to this case.

Accordingly, court concludes that the petitioner has met his burden to prove that counsel's conduct was constitutionally deficient under the performance prong of Strickland.⁶

D. Prejudice—Strickland as modified by Hill

To establish the prejudice prong in a case involving a guilty plea, under Strickland v. Washington, supra, 466 U.S. 668, as modified by Hill v. Lockhart, supra, 474 U.S. 59, the petitioner must show that:  “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.  Copas v. Commissioner, 234 Conn. 139, 163, 662 A.2d 718 (1995) A “reasonable probability” is a “standard of proof ‘somewhat lower’ than a preponderance of the evidence.”  Strickland, 466 U.S. at 694.   Under Hill v. Lockhart, supra, 474 U.S. 59, the court must decide “whether counsel's constitutionally ineffective performance affected the outcome of the plea process.”  Hill v. Lockhart, 474 U.S. at 59, 106 S.Ct. 366 (emphasis added).

Citing Copas v. Commissioner, supra, 234 Conn. 163, Gonzalez v. Commissioner, 124 Conn.App. 740, 6 A.3d 152 (2009), and State v. Aquino, 89 Conn.App. 395, 408, 873 A.2d 1075, appeal dismissed, 279 Conn. 293, 901 A.2d 1194 (2005), the state argues that the petitioner must also show that “he would have prevailed at trial to the extent that he would have been acquitted or sentenced to a term that did not meet the threshold for deportation.”   Aquino is not a habeas case, but rather a direct appeal from a decision denying the defendant's motion to withdraw his guilty plea, and was decided before the Supreme Court's decision in Padilla v. Kentucky, supra.   Neither Gonzalez v. Commissioner, supra, 124 Conn.App. 740 nor Copas v. Commissioner, 234 Conn. 139 involve claims of ineffective assistance based on counsel's providing incorrect advise on the immigration consequences of a plea agreement.  Gonzalez v. Commissioner, 124 Conn.App. 740 involved a general claim that counsel failed to communicate to him the charges and the possible courses of action and the court found that the petitioner produced no evidence of prejudice.

In Copas v. Commissioner, supra, the Supreme Court discussed and applied the Strickland–Hill standard to a petitioner's claim that counsel failed to investigate his case or advise him of the possible defenses.   The Supreme Court explained the Strickland–Hill test as follows:  “Although the first half of the Strickland test remains the same for determining ineffective assistance of counsel at the plea negotiation stage, the court modified the prejudice standard.   As in Strickland, the prejudice standard for plea negotiations is intended to determine whether, but for counsel's constitutionally deficient performance, the outcome of the plea process would have been different.   The court went on to require that ‘in order to satisfy the ‘prejudice’ requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.'  “ Copas v. Commissioner, 234 Conn. 156–7, citing Hill v. Lockhart, supra, 474 U.S. 57–8.

The state claims that in a guilty plea case such as this, and apparently in every case, the holdings in Copas and Hill require the petitioner to establish that he would have prevailed at trial or received a different sentence, in addition to proving that there was a reasonable probability that petitioner would have insisted on going to trial.   The court does not read these cases as broadly as the state.

In Hill, after setting forth the modified standard for establishing prejudice in a guilty plea case—that but for counsel's errors the petitioner would have insisted on going to trial—the court explained how that standard may be applied in certain cases involving deficient investigations and failure to advise the petitioner concerning potential affirmative defenses.   In doing so, the court in Hill explained that:  “In many guilty plea cases, the prejudice inquiry will closely resemble the inquiry engaged in by courts reviewing ineffective-assistance challenges to convictions obtained through trial.   For example, where the alleged error of counsel is a failure to investigate or discover potentially exculpatory evidence, the determination whether the error “prejudiced” the defendant by causing him to plead guilty rather than to go trial will depend on the likelihood that discovery of the evidence would have lead counsel to change his recommendation as to the plea.   This assessment, in turn, will depend in large part on a prediction whether the evidence likely would have changed the outcome of the trial.   Similarly, where the alleged error of counsel is a failure to advise the defendant of a potential affirmative defense to the crime charged, the resolution of the “prejudice” inquiry will depend largely on whether the affirmative defense likely would have succeeded at trial.   These predictions, of the outcome at a possible trial, where necessary, should be made objectively, without regard for the “idosyncrasies of the particular decision-maker.”  Id., 59 (emphasis added).

The above passage from Hill was intended to provide an example of how the modified prejudice standard was to be applied in certain types of common guilty plea habeas cases.   The Hill court's use of the words “many, “for example” and “where necessary” convince the court that the Hill standard for prejudice does not require that in every case the petitioner must predict a favorable trial outcome.⁷  In fact, the Supreme Court in Hill did not even require such a prediction in that case.   The Hill case did not involve a claim of failure to investigate or advise regarding potential affirmative defenses but rather involved counsel's erroneous advice regarding petitioner's eligibility for parole.   In finding that the petitioner had failed to prove prejudice, the court did make a finding that the petitioner established that he would have prevailed at trial, but found that:  “Petitioner did not allege in his habeas petition that, had counsel correctly informed him about his parole eligibility date, he would have pleaded not guilty and insisted on going to trial.   He alleged no special circumstances that might support the conclusion that he placed particular emphasis on his parole eligibility in deciding whether or not to plead guilty.   Indeed, petitioner's mistaken belief that he would become eligible for parole after serving one-third of his sentence would seem to have affected not only his calculation of the time he likely would serve if sentenced pursuant to the proposed agreement but also his calculation of the time he likely would serve if he went to trial and were convicted.”   Id., at, 60.

Copas v. Commissioner, 234 Conn. 139, upon which the state primarily applies to support his view that the petitioner must also show that he would prevail at trial, applied the holding in Hill. Because Copas involved claims that counsel was ineffective for failing to investigate and advise the petitioner of potential defenses, the Supreme Court applied the Hill court's direction as to how the prejudice prong should be applied in those types of cases.   Id., 163, n.19 (“Therefore, we interpret Hill to require the petitioner in this case to show that the defense that was not discovered or explained to him during the plea process would have likely resulted in either an acquittal or a more favorable sentence following a conviction of the charged offense or of a lessor included offense”).

Of course, in cases where the petitioner's claim in the failure to adequately investigate or advise him regarding affirmative defenses, even in a guilty plea case, it makes sense that the petitioner must show that what the investigation, if properly undertaken, would have revealed evidence helpful to the petitioner's defense and that could have made a difference at trial.   Such a prejudice analysis does not necessarily lend itself to all types of habeas guilty plea claims as the state appears to suggest.   See Strickland v. Washington, 466 U.S. at 693 (“Attorney errors come in an infinite variety ․”).

Thus, under Hill, what is clear is that to establish prejudice the petitioner must establish that “there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.”  Hill v. Lockhart, 474 U.S. 59.   The court does not agree that in this case of ineffective assistance of counsel in a guilty plea case the petitioner must also prove that he would prevail at trial.

The Supreme Court in Padilla, 130 S.Ct. 1486, did not reach the prejudice prong of the Strickland–Hill analysis because the lower court had not reached that issue.   It therefore remanded the case to the lower court to consider the prejudice prong in the first instance.   However, the Padilla court made several statements that are relevant to a determination of prejudice including that:  “[T]o obtain relief on this type of claim, a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances.”  Id., 14.   The court also stated 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.”  (Internal citations omitted.)  Id., citing INS v. St. Cyr, 533 U.S. 289, 323.

The Third Circuit discussed the prejudice prong in the context of a Padilla claim and determined that the appropriate inquiry is whether if the petitioner had been made aware of the mandatory deportation consequences of his plea, he would have reasonably chosen to go to trial even though he faced serious charges and significant exposure.  United States v. Orocio, supra, 645 F.3d 645.   The court explained:  “For the alien defendant most concerned with remaining in the United States, especially a legal permanent resident, it is not at all unreasonable to go to trial and risk a ten-year sentence and guaranteed removal, but with the chance of acquittal and the right to remain in the United States, instead of pleading guilty to an offense that, while not an aggravated felony, carries “presumptively mandatory” removal consequences.   Just as “the threat of [removal] 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,” id. at 1486, the threat of removal provides an equally powerful incentive to go to trial if a plea would result in removal anyway.”  Id., accord State v. Sandoval, 171 Wash.2d 163, 249 P.3d 1015, 1021–22 (2011).

The court finds that the petitioner has established prejudice.   In particular, had the petitioner's attorney correctly advised him that he would be removed from the United States if he pleaded guilty to the charge of robbery in the first degree, it is reasonably probable that he would not have accepted the plea and would have insisted on going to trial.   Such a decision would have been rational under the circumstances.   At the time of the plea, the petitioner was a young man of approximately 23 years old with a three-year-old son and fiancée in Connecticut.   He has no family or other ties in Albania.   He has chosen to fight his deportation and remain detained rather than agree to the deportation and be released from jail to Albania.   The petitioner testified credibly that he understands that if he prevails in this habeas case he would not be released but that his case would be returned to the trial court to begin over and is prepared to face the consequences.   Thus, had the petitioner known when he entered his plea that he would be deported, he could rationally have been more concerned about a near-certainty of multiple decades of banishment from the United States and his family than the possibility of a prison sentence.   See United States v. Orocio, supra, 645 F.3d 645.

In addition, petitioner's trial counsel testified at the habeas trial that he was developing a defense to the state's case.   Trial counsel received from the state a video of the robbery that confirmed that the petitioner was not in the store at the time of the robbery.   Based on this video and other evidence, trial counsel was developing a defense that the petitioner was not aware that his co-conspirators intended to commit a robbery.   He did not pursue that defense further after receiving what he believed was a “good” offer from the state, which the petitioner accepted based on his attorney's advice.   Having a viable defense to the charges further supports the court's finding that had counsel properly advised the petitioner regarding the immigration consequences of his plea, he could reasonably have decided to reject the plea and go to trial instead and that such a decision would have been rational under the circumstances.

At least one court has found that a court's canvass on immigration consequences can effectively undermine the petitioner's claim of prejudice regarding a claim that counsel failed to advise the client regarding immigration consequences.   See Marroquin v. United States, supra, 2011 U.S. Dist. LEXIS 11406.   While this court believes that, under certain circumstances, a court's canvass on an issue may cure an attorney's deficiency, it did not do so in this case.   Although the trial court gave a proper advisement under § 54–1j that the plea may have immigration consequences, the advisement was undermined by counsel's incorrect advice that he would not be deported, and further undermined by counsel's direction to the petitioner that when the court asked him about whether he understood the immigration consequences, that he simply say “yes.”   The petitioner understandably followed his attorney's advice in responding to the court's question.

Accordingly, the court concludes that given the severity of the deportation consequences in this case and the fact that the petitioner had a defense to the charges, it would have been a reasonable and rational decision for the petitioner to reject the plea and take his chances at trial.   In fact, he would have had nothing to lose.  Copas v. Commissioner, 234 Conn. 139.   Thus, the court finds that but for his counsel's incorrect advice, it was reasonably probable that the petitioner would not have plead guilty and would have insisted on going to trial and that such a decision would have been rational under the circumstances.  Hill v. Lockhart, 474 U.S. 52;  Padilla v. Kentucky, supra, 14.

CONCLUSION

For the foregoing reasons, the court grants the petition for writ of habeas corpus and vacates the petitioner's pleas and convictions.   The case is returned to the trial court for further proceedings.

So ordered.

Cobb, J.

FOOTNOTES

FN1. Robbery in the first degree is a class B felony.   Subsection 53a–134(a)(4) includes the element that the defendant “displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm ․”.  FN1. Robbery in the first degree is a class B felony.   Subsection 53a–134(a)(4) includes the element that the defendant “displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm ․”

FN2. United States v. Orocio, 645 F.3d 630 (3d Cir.2011) (Padilla not a new rule);  United States v. Hong, 10–6294 (10th Cir.9–1–2011) (Padilla established a new rule);  Chaidez v. United States, 655 F.3d 684 (7th Cir.2011) (Padilla established a new rule).   The respondent's brief includes additional cases from other states and federal courts finding both that the Padilla case is and is not retroactive..  FN2. United States v. Orocio, 645 F.3d 630 (3d Cir.2011) (Padilla not a new rule);  United States v. Hong, 10–6294 (10th Cir.9–1–2011) (Padilla established a new rule);  Chaidez v. United States, 655 F.3d 684 (7th Cir.2011) (Padilla established a new rule).   The respondent's brief includes additional cases from other states and federal courts finding both that the Padilla case is and is not retroactive.

FN3. As recently as January 1, 2012, the Second Circuit “express[ed] no opinion as to the merits of any challenge Hill could bring to his state conviction under Padilla, 130 S.Ct. 1473, whether as a habeas action, a writ of audita querela, a writ of error coram nobis, or on some other ground.   We note only that it is an open question in this circuit whether the rule articulated in Padilla applies retroactively and that our sister circuits have reached divergent conclusions on this issue.   Compare United States v. Orocio, 645 F.2d 630, 640–42 (3d Cir.2011) (holding that Padilla is retroactively applicable on collateral review), with Chaidez v. United States, 655 F.3d 684, 687–94 (7th Cir.2011) (holding that Padilla announced a ‘new rule’ under Teague v. Lane, 489 U.S. 288 (1989), and, as such, does not apply retroactively).”   Hill v. Holder, 10–1791, n.2 (2nd Cir.2012).   Federal district courts in the Second Circuit addressing the retroactivity of Padilla have not held that Padilla applies retroactively.   Rosales v. Artus, No 10–CV–2742 (E.D.N.Y. Aug. 30, 2011) (to extend Padilla recognized a new rule, does not apply retroactively to cases on collateral review);  Ellis v. United States, 806 F.Sup.2d 538 (E.D.N.Y. June 3, 2011) (nothing in Padilla indicates it is to be applied retroactively);  United States v. Obonaga, 10–CV–2951 (E.D.N.Y. June 30, 2010) (assumes Padilla applies retroactively).   These decisions are not binding on this court..  FN3. As recently as January 1, 2012, the Second Circuit “express[ed] no opinion as to the merits of any challenge Hill could bring to his state conviction under Padilla, 130 S.Ct. 1473, whether as a habeas action, a writ of audita querela, a writ of error coram nobis, or on some other ground.   We note only that it is an open question in this circuit whether the rule articulated in Padilla applies retroactively and that our sister circuits have reached divergent conclusions on this issue.   Compare United States v. Orocio, 645 F.2d 630, 640–42 (3d Cir.2011) (holding that Padilla is retroactively applicable on collateral review), with Chaidez v. United States, 655 F.3d 684, 687–94 (7th Cir.2011) (holding that Padilla announced a ‘new rule’ under Teague v. Lane, 489 U.S. 288 (1989), and, as such, does not apply retroactively).”   Hill v. Holder, 10–1791, n.2 (2nd Cir.2012).   Federal district courts in the Second Circuit addressing the retroactivity of Padilla have not held that Padilla applies retroactively.   Rosales v. Artus, No 10–CV–2742 (E.D.N.Y. Aug. 30, 2011) (to extend Padilla recognized a new rule, does not apply retroactively to cases on collateral review);  Ellis v. United States, 806 F.Sup.2d 538 (E.D.N.Y. June 3, 2011) (nothing in Padilla indicates it is to be applied retroactively);  United States v. Obonaga, 10–CV–2951 (E.D.N.Y. June 30, 2010) (assumes Padilla applies retroactively).   These decisions are not binding on this court.

FN4. Because all of the petitioner's immigration appeals have been exhausted, the petitioner could be deported any day..  FN4. Because all of the petitioner's immigration appeals have been exhausted, the petitioner could be deported any day.

FN5. In Padilla, the Supreme Court found it significant that Connecticut and other states already require that court canvasses include a warning regarding possible immigration warnings and cites to § 54–1j.   599 U.S. n.15, along with other similar statutes in other states..  FN5. In Padilla, the Supreme Court found it significant that Connecticut and other states already require that court canvasses include a warning regarding possible immigration warnings and cites to § 54–1j.   599 U.S. n.15, along with other similar statutes in other states.

FN6. Based on trial counsel's admission that he misadvised the petitioner, even the respondent did not contest the performance prong of the test..  FN6. Based on trial counsel's admission that he misadvised the petitioner, even the respondent did not contest the performance prong of the test.

FN7. Indeed, if such a prediction were required in every guilty plea case, there would have been no need for the Supreme Court to modify the prejudice standard it established in Strickland for habeas cases after a trial on the merits, as that standard already requires the petitioner to prove that “there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different.”   Strickland v. Washington, 466 U.S. 668.   Moreover, in Hill, the focus of the inquiry is the impact on the “plea process,” not the trial process.  Hill v. Lockhart, 474 U.S. at 59..  FN7. Indeed, if such a prediction were required in every guilty plea case, there would have been no need for the Supreme Court to modify the prejudice standard it established in Strickland for habeas cases after a trial on the merits, as that standard already requires the petitioner to prove that “there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different.”   Strickland v. Washington, 466 U.S. 668.   Moreover, in Hill, the focus of the inquiry is the impact on the “plea process,” not the trial process.  Hill v. Lockhart, 474 U.S. at 59.

Cobb, Susan Quinn, J.