357245 v. Warden (2013)

MEMORANDUM OF DECISION

On August 9, 2011, the petitioner, Naddia Cohen, filed a petition for a writ of habeas corpus challenging her conviction in docket number CR07–0607585, judicial district of Hartford, and which was amended on November 29, 2012.   The amended petition raises claims in three counts, although count three (actual innocence) was withdrawn at trial.   The remaining counts allege first that the petitioner's guilty plea was not voluntary, knowing or intelligent, and second that counsel rendered ineffective assistance.   The respondent's amended return denies the petitioner's material allegations and that she is entitled to relief, as well as that the petitioner is barred by procedural default from raising the claim in count one.   The reply to the return asserts ineffective assistance of counsel as the cause and prejudice for the procedural default.

The parties appeared before this court on August 8, 2013, for a trial on the merits.   The petitioner, her expert Attorney Jason Gans, and her former defense counsel, Attorney William Gerace, presented testimony.   Additionally, several documents were entered into evidence.   For the reasons articulated more fully below, the petition for a writ of habeas corpus is denied.

DISCUSSION

The petitioner was arrested and charged with one count of possession of over four ounces of marijuana in violation of General Statutes § 21a–279(b) and one count of possession of more than one kilo of marijuana with intent to sell in violation of General Statutes § 21a–278(b).  The offense date for both charged offenses is September 21, 2006.   The petitioner initially was represented by other counsel but eventually retained Attorney Gerace.   On April 3, 2008, the petitioner and Attorney Gerace appeared before the court, White, J., for a change of plea as a result of a plea agreement reached with the state.

In accordance with the terms of a Garvin plea agreement,¹ the petitioner entered a plea of guilty to one count of possession with intent to sell a controlled substance in violation of General Statutes § 21a–277(b), and guilty to one count of possession of more than one kilo of marijuana with intent to sell in violation of General Statutes § 21a–278(b).  The court accepted the pleas to both counts and thoroughly explained the conditional plea agreement to the petitioner.   The court also indicated that it was going to release the petitioner from incarceration and continue the matter for a presentence investigation (PSI) report and a possible alternative to incarceration plan (AIP).   If the petitioner received a favorable PSI, the court was inclined, but not committed, to letting the petitioner withdraw her plea to the § 21a–278(b) charge, thus proceeding only on the § 21a–277(b) charge, and impose a fully suspended sentence.   Any failure by the petitioner to appear in court on the sentencing date or acquire new criminal cases based on judicial findings of probable cause would result in a term of incarceration between the mandatory minimum of five years to serve and up to the maximum of twenty years.   After the state indicated for the record the factual bases for the two offenses, the court canvassed the petitioner about her guilty pleas and concluded that they were made knowingly, voluntarily and with the assistance of competent counsel.   The court's canvass included asking the petitioner if she understood that if she is not a citizen of the United States, her conviction might lead to her exclusion from the United States, her deportation or the denial of naturalization privileges.   The petitioner answered in the affirmative when asked about these possible deportation and immigration consequences.

The petitioner and counsel subsequently appeared before Judge White on August 14, 2008, for sentencing.   Based upon the PSI report, counsel's comments and the petitioner's remarks, the court permitted the petitioner to withdraw her plea to the § 21a–278(b) count and imposed a sentence of five years, suspended, and three years of probation with the conditions contained in the AIP on the one remaining count, § 21a–277(b).  It is noteworthy that Judge White on several occasions emphasized that the petitioner had not been completely forthright in the PSI interview and with her comments directed at the court for sentencing.   Despite these reservations, Judge White imposed the sentence in accordance with terms of the plea agreement.

The petitioner filed the present habeas corpus petition several days prior to completing her three-year term of probation.   Although the petitioner was not in federal custody facing deportation at the time she filed the habeas corpus petition or even at the time of trial, nor had she at the time of trial even received any notification from federal authorities regarding immigration status or deportation, the petitioner nevertheless potentially faces both denial of her status as a permanent resident when she renews her Green Card in 2017 and deportation.   Given that the petitioner's concern and goal is to prevent deportation and negative immigration consequences, the court has serious reservations whether the petitioner's claims are ripe for adjudication because it still remains speculative as to what, if anything, will happen.   The court acknowledges that the petitioner presented testimony from Attorney Gans, who specializes in immigration law, and who stated that the petitioner is virtually assured of encountering immigration and deportation problems in 2017, when she must go through the process of renewing her Green Card. Nevertheless, such problems have not arisen.   The court will, in spite of its reservations, address the petitioner's claims on their merits.²  The petitioner's claims in this matter, although enumerated in two counts, have become merged through the affirmative defense of procedural default and the petitioner's alleged cause and prejudice (i.e., ineffective assistance of counsel).   The petitioner conceded that the claim premised on Padilla v. Kentucky, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), was foreclosed by Chaidez v. United States, 133 S.Ct. 1103, 185 L.Ed.2d 149 (2013), and withdrew her Padilla claim.   See also Alcena v. Commissioner of Correction, 146 Conn.App. 370, 373–75 (2013) (per curiam);  Saksena v. Commissioner of Correction, 145 Conn.App. 152, 158–59 (2013);  Gonzalez v. Commissioner of Correction, 145 Conn.App. 28, 33 (2013) (where petitioner's conviction became final in 2005, Padilla did not apply).³  Consequently, the petitioner's remaining allegations can be distilled down to assertions that Attorney Gerace coerced or induced the petitioner into pleading guilty, specifically as premised on his purported promise that he would obtain a pardon, which would eliminate the petitioner's immigration and deportation problems.

As to any claims that the petitioner was somehow coerced or induced by representations made by Attorney Gerace, the court concludes such claims are without merit.  “ ‘In Strickland [v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ], the United States Supreme Court enunciated the two requirements that must be met before a petitioner is entitled to reversal of a conviction due to ineffective assistance of counsel.   First, the [petitioner] must show that counsel's performance was deficient ․ Second, the [petitioner] must show that the deficient performance prejudiced the defense ․ Unless a [petitioner] makes both showings, it cannot be said that the conviction ․ resulted from a breakdown in the adversarial process that renders the result unreliable ․

“ ‘Moreover, [i]n Hill v. Lockhart, [474 U.S. 52, 57–58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) ], the court determined that the same two-part standard applies to claims arising from the plea negotiation process and that the same justifications for imposing the prejudice requirement in Strickland were relevant in the context of guilty pleas.   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 ․ [I]n 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.’  (Citations omitted;  internal quotation marks omitted.)  Niver v. Commissioner of Correction, 101 Conn.App. 1, 3–4, 919 A.2d 1073 (2007).”   Alcena v. Commissioner of Correction, supra, 146 Conn.App. 372–73.

The petitioner in the present matter testified that she did not want to plead guilty but did so because Attorney Gerace informed her that he would “get her a pardon,” which would take care of her immigration problems.   According to the petitioner, she expected that she would not face immigration problems because when she completed probation, she would go to Attorney Gerace's office and he would obtain a pardon.   The petitioner went to see Attorney Gerace in 2011 after she successfully completed probation, which Attorney Gerace had informed her must occur before she could seek a pardon.   The petitioner further testified that when she went to see Attorney Gerace in 2011, he indicated he would help her with the paperwork and that she would have to send it off.   The petitioner became upset and began crying because she thought that Attorney Gerace would assist her through the entire process of getting a pardon.   She then went to see Attorney Jason Gans, who specializes in immigration law, because she wanted assistance with the pardon.   Attorney Gans informed her that a pardon would not be any help to her.

Attorney Gerace testified that he has practiced law, primarily criminal law, for over thirty years, and has handled thousands of cases, whether resolved by plea or trial, during that timeframe.   According to Attorney Gerace, the petitioner's primary concern, when he was retained, was to get out of prison, where she was being held after initially posting bond but then was considered a flight risk after her then husband fled the country.   He was also aware that the petitioner was concerned about the immigration consequences if she were convicted.

Attorney Gerace's general practice, according to his testimony, is to refer a client with concerns about immigration consequences to an attorney who specializes in immigration law.   Attorney Gerace categorically denied ever having advised any client that they would or would not be deported.   Attorney Gerace also adamantly denied that he and the petitioner had a conversation about a pardon and how it might impact deportation and immigration.   The discussion about a pardon, according to Attorney Gerace, arose in the context of the petitioner being a restaurant and bar owner and permittee, her real estate properties, conducting business, as well as her involvement in civic and community organizations.   That is, the pardon only had to do with her personal standing in the community and business concerns, not immigration or deportation.   The petitioner's options were very limited, according to Attorney Gerace, and he testified that he advised her that she could either go to trial and likely get convicted, thereby facing a mandatory five- or eight-year prison term and assured deportation, or enter a plea for a fully suspended sentence such as she did and take a chance on being deported.   The petitioner chose the plea agreement.

Resolving the petitioner's claims distills down to a determination of credibility.   The petitioner faces potential severe consequences stemming from her criminal conviction and has previously had her forthrightness called into question by the sentencing court.   The court finds that Attorney Gerace, a highly experienced criminal defense attorney and officer of the court, would not expose his reputation and his livelihood to serious claims that he violated the Rules of Professional Conduct, face disciplinary actions for violations thereof, and face malpractice claims or other consequences negatively impacting his ability to practice law.   This court cannot fathom any attorney, let alone an attorney as experienced as Attorney Gerace, promising a client that he would obtain a pardon to induce the client to pleading guilty to criminal charges.   Pardons are acts of pure clemency and at the discretion of the entity that has power to pardon.   See, e.g., State v. Luzietti, 230 Conn. 427, 439, 646 A.2d 85 (1994);  McLaughlin v. Bronson, 206 Conn. 267, 271, 537 A.2d 1004 (1988).

Additionally, the court does not find the petitioner's testimony credible, when she asserts that she would not have taken the plea, but rather would have risked a trial, while facing a mandatory minimum sentence of five years to serve, with a potential of up to twenty years to serve if convicted of violating General Statutes § 21a–278(b).  A review of the underlying facts indicates that the State had a very strong case against the petitioner and her then husband.   Approximately 55 pounds of marijuana was seized and there were indications that the petitioner was in the process of removing the marijuana from the residence apparently in an attempt to avoid detection, when she learned that the police were about to serve a search warrant.   Based on the significant amount of marijuana that was seized and the petitioner's actions, the court has very little doubt that had she gone to trial and been convicted, she would have received a heavy sentence.   The court finds the testimony of Attorney Gerace persuasive that the petitioner's primary concern was to be released from incarceration.   Based on the underlying facts and the testimony during the habeas trial, the court does not believe that the petitioner would have risked facing a potential term of incarceration of up to 27 years in prison, if convicted of both counts.

The court credits the testimony of Attorney Gerace over the petitioner's and concludes that the petitioner has failed to prove deficient performance and, therefore, the claim of ineffective assistance must fail.

CONCLUSION

Based upon the foregoing, the court denies the claims in the petition for a writ of habeas corpus.   Judgment shall enter for the respondent.   Counsel for the petitioner shall file a judgment file with the clerk within thirty days of the date of this decision.

It is so ordered.

Kwak, J.

FOOTNOTES

FN1. “A Garvin agreement is a conditional plea agreement that has two possible binding outcomes, one that results from the defendant's compliance with the conditions of the plea agreement and one that is triggered by the defendant's violation of a condition of the agreement.”  State v. Rosado, 92 Conn.App. 823, 825 n.3, 887 A.2d 917 (2006);  State v. Stevens, 85 Conn.App. 473, 474 n.2, 857 A.2d 972, cert. granted on other grounds, 272 Conn. 902, 863 A.2d 695 (2004).   The source of the plea name is State v. Garvin, 242 Conn. 296, 699 A.2d 921 (1997)..  FN1. “A Garvin agreement is a conditional plea agreement that has two possible binding outcomes, one that results from the defendant's compliance with the conditions of the plea agreement and one that is triggered by the defendant's violation of a condition of the agreement.”  State v. Rosado, 92 Conn.App. 823, 825 n.3, 887 A.2d 917 (2006);  State v. Stevens, 85 Conn.App. 473, 474 n.2, 857 A.2d 972, cert. granted on other grounds, 272 Conn. 902, 863 A.2d 695 (2004).   The source of the plea name is State v. Garvin, 242 Conn. 296, 699 A.2d 921 (1997).

FN2. A discussion of the speculative nature of her problems is virtually indistinguishable from a discussion of collateral consequences being insufficient to support claims of ineffective assistance of counsel.   The United States Supreme Court in Padilla said some collateral consequences such as deportation are sufficiently serious to warrant including them under the protective umbrella of Strickland..  FN2. A discussion of the speculative nature of her problems is virtually indistinguishable from a discussion of collateral consequences being insufficient to support claims of ineffective assistance of counsel.   The United States Supreme Court in Padilla said some collateral consequences such as deportation are sufficiently serious to warrant including them under the protective umbrella of Strickland.

FN3. The petitioner heavily relies on another trial court decision, Bakrina v. Warden, Superior Court, judicial district of Tolland, Docket No CV–11–4004238–S (April 12, 2012) [53 Conn. L. Rptr. 889], in support of her claims in the present matter.   The habeas court in Bakrina concluded, prior to the release of Chaidez, that Padilla applied retroactively and granted habeas relief.   Consequently, because the Chaidez addressed the issue of retroactivity contrary to cases such as Bakrina, this court finds Bakrina to be both distinguishable and unpersuasive..  FN3. The petitioner heavily relies on another trial court decision, Bakrina v. Warden, Superior Court, judicial district of Tolland, Docket No CV–11–4004238–S (April 12, 2012) [53 Conn. L. Rptr. 889], in support of her claims in the present matter.   The habeas court in Bakrina concluded, prior to the release of Chaidez, that Padilla applied retroactively and granted habeas relief.   Consequently, because the Chaidez addressed the issue of retroactivity contrary to cases such as Bakrina, this court finds Bakrina to be both distinguishable and unpersuasive.

Kwak, Hunchu, J.