David Taylor v. Warden (2014)

MEMORANDUM OF DECISION

I. Procedural History

The petitioner was the defendant in a matter pending in the New Haven Judicial District under docket no.   CR99–127929 where he was charged with the crime of murder under General Statutes § 53a–54a.   At all relevant times during proceedings before the trial court, the petitioner was represented by Attorneys Beth Merkin and Mary Hazelkamp of the Division of Public Defender Services.   On September 12, 2001, the petitioner entered a plea of guilty to the charge of murder, under the Alford doctrine,¹ in exchange for an agreed upon sentence of twenty-five years incarceration.   On November 30, 2001, following the preparation of a presentence investigation report (“PSI”), the court, Fasano, J., sentenced the petitioner to the agreed sentence of twenty-five years.

Since his guilty plea, the petitioner has filed numerous habeas actions attempting to attack.²  The first habeas, under docket number CV03–004061, was denied following a trial on the merits.   Taylor v. Warden, Judicial District of Tolland at Rockville, Docket No. CV03–0004061 (October 18, 2004, Fuger, J.), rev'd and remanded in part, 94 Conn.App. 772, 895 A.2d 246 (2006), appellate court rev'd and appeal dismissed, 284 Conn. 433, 936 A.2d 611 (2007).   The petitioner subsequently brought another habeas action alleging ineffective assistance against Attorney D'Onofrio for his representation in the first habeas.   This second action was given docket no.   CV08–4002555 and Attorney Laljeebhai Patel was appointed to represent the petitioner.   Attorney Patel ultimately filed what is commonly referred to as an Anders motion, seeking to withdraw from representing the petitioner.³  The court, Solomon, J., granted Attorney Patel's Anders motion and, on December 2, 2009, dismissed the petition pursuant to Practice Book (Rev.2009) § 23–42(a).⁴

The instant petition for writ of habeas corpus was filed on August 15, 2011.   After the appointment of counsel, an amended petition containing eleven counts was filed, however, only two survived following this court's July 16, 2013, ruling (# 127.00) on the respondent's motion to dismiss (# 119.00).   The court subsequently granted the petitioner's motion to amend his petition to add non-substantive allegations and to correct certain errors.   The petitioner filed a Third Amended Petition, the operative petition, on September 7, 2013, count one alleging ineffective assistance against Attorney Michael D'Onofrio for his representation during the petitioner's first habeas trial and count two alleging ineffective assistance against Attorney Laljeebhai Patel for failing to properly represent the petitioner during the pendency of the habeas under docket CV08–4002555.   The respondent filed a return on October 16, 2013, generally denying the claims in the petition and asserting the special defenses of procedural default and res judicata.   The matter was tried before the court between October 21 and 23, 2013.   Additional procedural details will be related as necessary throughout the body of this decision.

II. Law and Discussion

Respondent's First Special Defense—Procedural Default

“[A] habeas court generally should decide the threshold issue of cause and prejudice when it is raised as a defense because, in the ordinary case, failing to do so undermines the prudential considerations that the cause and prejudice rule was designed to promote.”  Taylor v. Commissioner of Correction, 284 Conn. 433, 447 n.18, 936 A.2d 611 (2007).   The substance of the respondent's argument is that the petitioner is procedurally defaulted from pursuing his claim of ineffective assistance against Attorney Patel for his representation in CV08–4002555, because the only issue he raised on appeal was the court's dismissal of that petition without giving him the opportunity for an evidentiary hearing.   In other words, the respondent's argument is that the petitioner failed to raise any direct challenge to the underlying factual and legal findings the court made in reaching the decision to grant Attorney Patel's Anders motion to withdraw.⁵

Although some of the claims made by the respondent in the previous motion to dismiss already addressed the substance of the Anders proceedings, this special defense presents a slightly different question than the one raised in that proceeding.   In denying the previous motion to dismiss, this court determined that the petitioner's claims were not res judicata, because the habeas court had not actually passed on the merits of the claims within CV08–4002555 when it granted Attorney Patel's motion to withdraw.   Instead, this court found that the habeas court had only passed upon the representations made by Attorney Patel in his pleadings and affidavits as to whether the merits of the petitioner's claims should actually be litigated.   Taylor v. Warden, Superior Court, judicial district of Tolland at Rockville, docket no.   CV12–4004709 (July 16, 2013, Newson, J.).   In support of this special defense, however, the respondent argues that the petitioner has procedurally defaulted on his claim of ineffective assistance against Attorney Patel, because, whether or not he was given the opportunity for a proper evidentiary hearing before that petition was dismissed, he also had the right to appeal the court's decision to allow Attorney Patel to withdraw as counsel, but failed to do so.   Put simply, the respondent claims that the habeas court would not have allowed Attorney Patel to withdraw if it had found that he had failed to adequately and thoroughly investigate the possibility of asserting meritorious claims on behalf of the petitioner.   Therefore, it is the respondent's position that the petitioner's failure to specifically challenge the portion of the court's ruling allowing Attorney Patel to withdraw on appeal prevents him from raising issues related to Attorney Patel's performance for the first time in this habeas action.⁶

Failure to raise a constitutional claim at the trial level or on direct appeal prior to bringing a habeas action constitutes procedural default.  Barile v. Commissioner of Correction, 80 Conn.App. 787, 788, 837 A.2d 827, cert. denied, 268 Conn. 915, 847 A.2d 310 (2004).  “When a respondent seeks to raise an affirmative defense of procedural default, the rules of practice require that he or she must file a return to the habeas petition alleg[ing] any facts in support of any claim of procedural default ․ or any other claim that the petitioner is not entitled to relief.  Practice Book § 23–30(b).  If the return alleges any defense or claim that the petitioner is not entitled to relief, and such allegations are not put in dispute by the petition, the petitioner shall file a reply.  Practice Book § 23–31(a).   The reply shall allege any facts and assert any cause and prejudice claimed to permit review of any issue despite any claimed procedural default.  Practice Book § 23–31(c) ․ The appropriate standard for reviewability of [a procedurally defaulted claim] ․ is the cause and prejudice standard.   Under this standard, the petitioner must demonstrate good cause for his failure to raise a claim at trial or on direct appeal and actual prejudice resulting from the impropriety claimed in the habeas petition ․ [T]he cause and prejudice test is designed to prevent full review of issues in habeas corpus proceedings that counsel did not raise at trial or on appeal for reasons of tactics, inadvertence or ignorance ․ Once the respondent has raised the defense of procedural default in the return, the burden is on the petitioner to prove cause and prejudice ․” (Alterations in original.)  Saunders v. Commissioner of Correction, 137 Conn.App. 493, 498–99, 48 A.3d 728 (2012).  “Failing to recognize the factual or legal basis for a claim or failing to raise a claim despite recognizing it does not constitute cause for a procedural default.”   (Citation omitted;  quotation marks omitted.)  Chaparro v. Commissioner of Correction, 120 Conn.App. 41, 49, 990 A.2d 1261, cert. denied, 297 Conn. 903, 994 A.2d 1287 (2010).   However, “[i]f a petitioner can prove that his attorney's performance fell below acceptable standards, and that, as a result, he was deprived of a fair trial or appeal, he will necessarily have established a basis for ‘cause’ and will invariably have demonstrated ‘prejudice.’   “ (Alteration in original.)  Caban v. Commissioner of Correction, 113 Conn.App. 165, 173, 965 A.2d 601, cert. denied, 292 Conn. 901, 971 A.2d 40 (2009).  “Because [c]ause and prejudice must be established conjunctively, [the court may] dispose of this claim if the petitioner fails to meet either prong.”  (Alteration in original;  citation omitted.)  Chaparro, supra, 120 Conn.App. 48.

The respondent's claim of procedural default in the present case fails for two reasons.   First, as this court addressed in some detail in its decision on the respondent's previous motion to dismiss (# 119.00), the decision by the prior habeas court to grant Attorney Patel's motion to withdraw addressed only the representations made within the affidavits and pleadings filed by Attorney Patel averring that he was not able to locate any non-frivolous claims to pursue, but that decision did not address or rule upon the actual merits of the claims contained in that petition nor did it address the substance of Attorney Patel's performance in representing the petitioner.  Taylor v. Warden, supra, Superior Court, judicial district of Tolland at Rockville, docket no.   CV12–4004709.   Even if the petitioner had appealed the court's decision to allow Attorney Patel to withdraw, the appealable issue would not have been Attorney Patel's performance in representing the petitioner, but would have resulted in the Appellate Court's de novo review of the record to make an independent determination on whether the information contained in the record warranted granting Attorney Patel's motion to withdraw.   E.g., Lorthe v. Commissioner of Correction, 103 Conn.App. 662, 673–76, 931 A.2d 348, cert. denied, 284 Conn. 939, 937 A.2d 696 (2007).⁷  Therefore, procedural default is not applicable to the petitioner's claims here, because the subject of Attorney Patel's performance—what he did or, more importantly, allegedly did not do—was not, and could not have been, the subject of any issue the petitioner might have raised in his appeal from that decision.  Id.

The second reason the respondent's claim of procedural default fails is, even if we were to assume that the subject of Attorney Patel's performance could have been raised in the appeal from CV08–4002555, the holdings in cases such as Johnson v. Commissioner, 285 Conn. 556, 941 A.2d 248 (2008), make resorting to the “cause” and “prejudice” analysis required by a procedural default special defense unnecessary, because the petitioner has raised a claim of ineffective assistance against Attorney Patel.

We conclude that the same reasoning [we applied in Valeriano v. Bronson, 209 Conn. 75, 83–84, 546 A.2d 1380 (1988) that an allegation of ineffective assistance against appellate counsel constitutes sufficient allegations of ‘cause’ and ‘prejudice’ for purposes of meeting a special defense of procedural default] applies when a petitioner who has not moved to withdraw his guilty plea pursuant to Practice Book § 39–27(4), or challenged his plea on direct appeal, brings a habeas claim alleging ineffective assistance of trial counsel.   In such cases, the court need not apply the cause and prejudice test ․ in determining whether to grant the habeas petition because application of the two-pronged test in Strickland v. Washington, as modified for guilty plea cases by Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, L.Ed.2d 203 (1985), accomplishes the same result.   As we stated in Valeriano, [i]f a petitioner can prove that his attorney's performance fell below acceptable standards, and that, as a result, he was deprived of a fair trial or appeal, he will necessarily have established a basis for cause and will invariably have demonstrated prejudice.

Johnson v. Commissioner of Correction, supra, 285 Conn. 571–72.   Therefore, the respondent's claim of procedural default also fails because it is inapplicable in the present case.  Id.

Respondent's Second Special Defense—Res Judicata

The respondent next raises the special defense of res judicata.   The respondent, relying on the case of Sekou v. Warden, 216 Conn. 678, 690, 583 A.2d 1277 (1990), which held that “the failure to pursue unmeritorious claims cannot be considered conduct falling below the level of reasonably competent representation,” argues that Judge Solomon's decision to grant Attorney Patel's motion to withdraw in CV08–4002555 constitutes a finding that there were no nonfrivolous claims for him to pursue on behalf of the petitioner.   It is the respondent's argument that, since a necessary finding for this court to grant the petitioner relief on his claim of ineffective assistance against Attorney Patel would be that there was some non-frivolous issue that the petitioner could have prevailed upon but for Attorney Patel's failure to adequately investigate and litigate the matter, an issue the respondent claims that Judge Solomon was required to determine before granting the Anders motion to withdraw, the doctrine of res judicata should now prohibit the petitioner from litigating this issue again.

The respondent's claim is simply the reformulation of an argument the respondent made in support of its pretrial motion to dismiss (# 119.00) this same count.   In denying that motion, this court said the following:

The respondent asserts that the claim of ineffective assistance against Attorney [D'Onofrio] is subject to dismissal on grounds of res judicata as well, because in a habeas action brought by the petitioner subsequent to CV03–0004061 under Docket No. CV08–4002555, which contained claims of ineffective assistance against Attorney [D'Onofrio], the petitioner's counsel was allowed to withdraw after filing an Anders motion and the court, Solomon, J., subsequently dismissed the matter pursuant Practice Book (Rev.2009) § 23–42(a).   The petitioner's counsel in that matter was Attorney Laljeehbai Patel.   The respondent's assertion is that the granting of the Anders motion and subsequent dismissal represents a judicial determination that there were no meritorious claims to be presented in that action.   In other words, the respondent is asserting that this court should accept the decision to grant the Anders motion to withdraw and to dismiss CV08–4002555, at least with respect to any claims of ineffectiveness against Attorney [D'Onofrio], as if it were a finding on the merits that Attorney [D'Onofrio] had in fact provided the petitioner with constitutionally sufficient representation.   The respondent further argues that, since the petitioner was provided an opportunity to object to the Anders motion and to the dismissal of his complaint, the doctrine of res judicata should prohibit him from re-litigating those issues again here.   Said another way, the respondent's position is that the dismissal of the petition in CV08–4002555 constituted a judicial determination that there was no reasonable basis to believe that any claim that could be pursued on behalf of the petitioner would result in habeas relief if heard on its merits, so res judicata should prohibit the petitioner from reasserting them here.   The respondent's arguments, however, are misguided ․

A hearing on an Anders motion in the habeas context does not, in fact, address the substance of the evidence or witnesses that might support or defeat the claims in the petition, as tested through the presentation of sworn testimony in an adversarial setting, but really only addresses the substantially one-sided assertions of counsel as to the non-existence of evidence and witnesses to support those claims, or, if evidence or witnesses do exist, that there is no good faith basis to require them to be presented at a trial.  United States v. Whitley, 503 F.3d 74, 77 (2d Cir.2007).   Although a petitioner must be given an opportunity to object to the Anders motion and to file his own brief;  Id.;   the petitioner in the present case being incarcerated, as most petitioners are, and without access to his own investigator, the advice of counsel as to law and strategy to defeat the Anders motion, or the ability to compel the attendance of witnesses and the production of evidence that might contradict the assertions made by counsel in the Anders motion, this limited opportunity does not compare at all to the full and fair opportunity to litigate those issues contemplated by the doctrine of res judicata as applied in the habeas context.  “[I]n the habeas context, in the interest of ensuring that no one is deprived of liberty in violation of his or her constitutional rights ․ the application of the doctrine of res judicata ․ [is limited] to claims that actually have been raised and litigated in an earlier proceeding.”  Carter v. Commissioner of Correction, 133 Conn.App. 387, 393, 35 A.2d 1088 (2012).   The petitioner in the present case has not had a prior opportunity to litigate the claim of ineffective assistance he now asserts against Attorney [D'Onofrio], because CV08–4002555 was dismissed pursuant to a pretrial motion.  Id. Therefore, the doctrine of res judicata is inapplicable to those claims.  Id.

Taylor v. Warden, supra, Superior Court at Rockville, docket no.   CV12–4004709.   In its present formulation, all the respondent has done is to shift the focus of its argument as to what the meaning of Judge Solomon's decision to grant the Anders motion in CV08–4002555 means.   In the motion to dismiss, the respondent's claim was that Judge Solomon's determination that there were no non-frivolous claims for Attorney Patel to pursue was akin to a prior judicial determination that Attorney D'Onofrio had, in fact, provided the petitioner with constitutionally sufficient representation in the first habeas, whereas the respondent's argument now is that it should be accepted as a judicial determination that Attorney Patel, in investigating possible claims against Attorney D'Onofrio, provided constitutionally sufficient representation in the second habeas.   The same reasoning this court applied in denying the motion to dismiss, which was that the decision on the Anders motion did not address the merits or substance of any of the petitioner's claims or his attorney's performance, would apply here, and there is no need for the court to address the matter further.  Taylor v. Warden, supra.   The claims are not barred by the doctrine of res judicata.

Count One—Ineffective Assistance Against Attorney Michael D'Onofrio

The petitioner asserts numerous reasons in support of his claim that Attorney Michael D'Onofrio provided ineffective representation during the petitioner's first habeas, the essence of those claims being that Attorney D'Onofrio failed to pursue numerous claims of ineffectiveness against his defense attorneys beyond those presented in the first habeas regarding his mental health status at the time of the plea and whether they had failed to properly advise him of the elements of the offense to which he entered his plea and the possible consequences thereof.  “[T]he [petitioner] must show that counsel's representation fell below an objective standard of reasonableness.”  Hill v. Lockhart, 474 U.S. 52, 57, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).  “[T]he performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances.”  Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).   Even if the petitioner is able to show that Attorney D'Onofrio's performance was constitutionally deficient, he must also meet the second prong of the test, which “focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process.   In other words, in order to satisfy the second prong of the test, the petitioner 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.”  Hill v. Lockhart, supra, 474 U.S. 59;  see also, Johnson v. Commissioner of Correction, 285 Conn. 556, 576, 941 A.2d 248 (2008).  “In its analysis, a reviewing court may look to the performance [1st] prong or to the prejudice [2nd] prong, and the petitioner's failure to prove either is fatal to a habeas petition.”  Hall v. Commissioner of Correction, 124 Conn.App. 778, 783, 6 A.3d 827 (2010), cert. denied, 299 Conn. 928, 12 A.3d 571 (2011).

Additionally, where, as in the present case, a petitioner is alleging ineffective assistance against his habeas attorney, “[t]o succeed in his bid for a writ of habeas corpus, the petitioner must prove both (1) that his appointed habeas counsel was ineffective, and (2) that his trial counsel was ineffective.   A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction ․ has two components.   First, the defendant must show that counsel's performance was deficient ․ Second, the defendant must show that the deficient performance prejudiced the defense.   Unless a defendant makes both showings, it cannot be said that the conviction ․ resulted from a breakdown in the adversary process that renders the result unreliable ․ Only if the petitioner succeeds in what he admits is a herculean task will he receive a new trial.”  Lozada v. Warden, 223 Conn. 834, 842–43, 613 A.2d 818 (1992).   If the petitioner fails to meet his burden of proving both prongs of the Hill v. Lockhart test as to either his former habeas counsel or his former trial counsel, then this claim will fail.  Id.

In general, the court finds that the petitioner's defense counsel, Attorneys Hazelkamp and Merkin, fully and thoroughly reviewed all possible legal options with the petitioner during the course of their representation.   Specifically, the court finds that they fully advised the petitioner regarding the evidence the State had against him, shared the statements and reports the State provided through the discovery process, advised the petitioner on the possible course of a trial and theories of defense, including the defense of extreme emotional disturbance and the possibility of conviction on a lesser included offense, possible plea agreement options, and as to all of his various rights, including his right to testify or to remain silent.   The court further finds that defense counsel's representation of the petitioner in the present case easily met the Strickland/Hill constitutional standard.  Strickland v. Washington, supra, 466 U.S. 688.   Since the petitioner has failed to prove that defense counsel rendered ineffective assistance in regards to these matters, he cannot meet his burden of proof to establish a claim of ineffective assistance against Attorney D'Onofrio on these grounds as a matter of law, and his claims fail.  Lozada v. Warden, supra, 223 Conn. 842–43.⁸

To address some of the specific claims, however, the petitioner also alleges that Attorney D'Onofrio failed to raise a claim that defense counsel withheld crime scene photographs from him during the course of the representation, a claim this court finds to be without merit.   First, again, the court credits the testimony of defense counsel that they shared all pertinent discovery materials they received with the petitioner.   Defense counsel did testify that some of the more disturbing close-up photographs of the victim's body and wounds may have been withheld from the petitioner to avoid unduly upsetting him, because he still expressed deep feelings for her, but that the sum and substance of the photographic evidence was otherwise shared with him.   In a case such as the present, where the manner and cause of death of the victim was never in question,⁹ the decision of defense counsel to withhold close-up shots of the victim's body in lieu of less graphic photographs depicting the same scenes does not equate to constitutionally deficient performance, because the petitioner was not deprived of any information that a reasonable defense attorney would have considered might affect the course of the defense or any of the petitioner's decisions.  Strickland v. Washington, supra, 466 U.S. 688.

Even if the withholding of a few select photographs from the petitioner could be found to have been deficient performance, however, the petitioner has also failed to establish that not seeing every single crime scene photograph effected his decision to enter his guilty plea.   Again, the petitioner confessed to killing the victim (see, footnote 9), and failed to present any claim or evidence during the habeas trial that there was anything within those photographs allegedly withheld from him that would have proven his innocence or caused him to reject the plea offer and proceed to trial.   Therefore, the petitioner has failed to prove that he was prejudiced.  Hill v. Lockhart, supra, 474 U.S. 59.   Again, since the petitioner cannot meet his burden of establishing that he received ineffective assistance from his defense counsel, his claim of ineffective assistance against Attorney D'Onofrio fails as a matter of law.  Lozada v. Warden, supra, 223 Conn. 842–43.¹⁰

The petitioner has also failed to establish that Attorney D'Onofrio was ineffective for failing to raise a claim that defense counsel was ineffective for not providing him with a copy of the report prepared by the psychologist who evaluated him in anticipation of presenting a defense of extreme emotional disturbance at trial.   Attorney Merkin testified that it was her normal practice not to share the specific contents of such reports with her clients when her intent is to present a defense based on the client's mental health status, in case her client may have to testify.¹¹  The reasonable inference from her testimony was that she did not want her client to be exposed to being cross examined about how much of his testimony was from memory and how much was in order to match the findings in the report.   In other words, Attorney Merkin made a strategic decision related to a potential trial issue, and the petitioner has presented nothing to overcome the strong presumption that this strategic decision was a reasonable one for counsel to have made under the circumstances.  Boyd v. Commissioner of Correction, 130 Conn.App. 291, 297–98, 21 A.3d 969, 974, cert. denied, 302 Conn. 926, 28 A.3d 337 (2011).¹²  Therefore, the petitioner has failed to establish that defense counsel's performance was constitutionally deficient with respect to this claim, which means that his claim of ineffectiveness against Attorney D'Onofrio fails as a matter of law.  Lozada v. Warden, supra, 223 Conn. 842–43.

The petitioner next claims that Attorney D'Onofrio was ineffective for failing to present a claim that defense counsel was ineffective for having failed to advise the petitioner that he could ask questions of the court at the time of his plea.   First, the petitioner has failed to cite to any constitutional provision, statutory citation or other legal authority that provides that a valid plea canvas requires a defendant to be notified that he has the right to ask questions of the court.  “Under Boykin [v. Alabama, 395 U.S. 238, 242–44, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) ], in order for a plea to be knowingly, voluntarily and intelligently made, a trial court is required to advise a defendant that his plea operates as a waiver of three fundamental constitutional rights—jury trial, confrontation and self-incrimination.”   State v. Badgett, 200 Conn. 412, 418, 512 A.2d 160 (1986).   As discussed above, this court has already found that defense counsel fully and adequately advised the petitioner about all of his rights in connection with the entry of his guilty plea.   Since the claim being made here by the petitioner does not implicate one of the core constitutional rights discussed in Boykin, defense counsel's failure to advise him on that issue would not constitute deficient performance.  Hill v. Lockhart, supra, 474 U.S. 59.   The petitioner also failed to present any evidence before this court about specific questions or answers he claims would have resulted in a change in his decision to continue forward with his guilty plea.   Therefore, even if such a right to ask questions of the court existed, the petitioner has failed to prove that he was prejudiced by not being advised.  Johnson v. Commissioner of Correction, supra, 285 Conn. 576.¹³  As such, the petitioner has failed to establish a claim of ineffective assistance against his defense attorneys;  Hall v. Commissioner of Correction, supra, 124 Conn.App. 783;  which, again, means that his claim of ineffective assistance against Attorney D'Onofrio fails as a matter of law.   Lozada v. Warden, supra, 223 Coon. 842–43.¹⁴

The petitioner also claims that defense counsel failed to advise him that, if convicted on the lesser charge of manslaughter, or any crime of equal or less significance, he would have been eligible for deportation parole pursuant to General Statutes § 54–125d after serving only 50% of any sentence imposed.   That statute, in conjunction with a 1997 agreement between the State of Connecticut Board of Pardons and Parole and the United States Immigration and Naturalization Service (“INS”), allows foreign-born nationals convicted of deportable crimes at the state level to be eligible to be paroled directly to the custody of INS for deportation after serving as little as 50% of their sentence.  (Exhibit A—Agreement.)   According to the testimony of John Dafeo of the Connecticut Board of Pardons and Parole, however, not a single parole has been granted under this agreement since its inception.   The simple reason for its lack of use, according to Mr. Dafeo, is that to parole a violent offender for deportation purposes after only 50% of their sentence, when Connecticut's Truth in Sentencing Act, General Statutes § 54–125a,¹⁵ would require such a violent offender to serve at least 85% his sentence before becoming eligible for parole, at which time the offender would likely be subject to deportation proceedings anyway, does not make sense.

Since the deportation parole agreement has never been used or approved in its existence, the petitioner's claim that he could have obtained a significantly earlier release from his present incarceration if defense counsel had made use of it is, at best, novel and speculative, and defense counsel cannot be found to have provided deficient representation for failing to raise or pursue novel and speculative legal theories.  Ledbetter v. Commissioner of Correction, 275 Conn. 451, 461–62, 880 A.2d 160 (2005).   The fact that no such parole has ever been approved in the twenty-five years this agreement has been in existence would also defeat any claim the respondent might make that he was prejudiced, because there is no reasonable probability to believe that the petitioner would have obtained relief even had defense counsel made an application.  Strickland v. Washington, supra, 466 U.S. 95 (“An assessment of the likelihood of a result more favorable to the defendant must exclude the possibility of arbitrariness, whimsy, caprice, ‘nullification,’ and the like”).   Again, therefore, the petitioner fails to meet his burden of proving that defense counsel was ineffective;  Hall v. Commissioner of Correction, supra, 124 Conn.App. 783;  so his claim of ineffective assistance against Attorney D'Onofrio must also fail.  Lozada v. Warden, supra, 223 Conn. 842–43.

The petitioner next claims that Attorney D'Onofrio was ineffective for failing to prosecute a claim that his defense attorneys were ineffective for failing to advise him that he could have moved to withdraw his plea or, after receiving a letter from the petitioner post-sentencing, for failing to advise him that he could appeal his conviction.¹⁶  The court finds that the petitioner did not notify either of his defense counsel that he wished to withdraw his plea at any time before he was sentenced.   The court also finds that Attorney Hazelkamp testified credibly that her first communication of any kind from the petitioner expressing any dissatisfaction with his plea was not until he sent her a letter approximately three months after sentencing.

This claim does not require extensive discussion.   First, with limited exceptions that are not applicable here, a defendant only has the legal ability to move to withdraw a guilty plea, and the trial court only has jurisdiction to consider such a claim, up until the conclusion of the hearing at which the sentence was imposed.  State v. Das, 291 Conn. 356, 362–63, 968 A.2d 367 (2009).   The petitioner's first communication that he wished to withdraw his plea, some ninety days after sentencing, was obviously after the conclusion of the hearing at which he was sentenced.   Defense counsel surely cannot be found to have been deficient for failing to take action on an issue they were not made aware, nor had any reason to be aware of, of until it was legally too late to act.  Strickland v. Washington, supra, 466 U.S. 688.   Again, therefore, both of the petitioner's claims here fail.  Hall v. Commissioner of Correction, supra, 124 Conn.App. 783.

The petitioner's next claim is that Attorney D'Onofrio was ineffective for failing to raise a claim that defense counsel was ineffective for failing to properly advise him that he would be deported from the United States if he entered a guilty plea to the crime of murder.   The court finds this claim to be wholly frivolous and contradicted by the evidence submitted during the habeas trial.   Not only were all parties, including the petitioner, well aware that he was going to be deported as a result of his conviction, defense counsel, with the petitioner's full knowledge, actually attempted to work out a deal as part of the plea agreement that would have resulted in the petitioner being transferred back to his home country of England to serve out his sentence.   Counsel's efforts included Attorney Hazelkamp contacting numerous authorities in England, including the British consulate, to see if it was possible to work out an international prisoner transfer.   There is no question in the present case that the petitioner was well aware that, one way or another, he would be sent back to England as a result of this conviction.   What the petitioner was really complaining about, which came out during the course of the testimony and arguments, was that his attorneys were not able to have him “transferred” to England under negotiated terms as part of his sentence, as opposed to being deported after the sentence was completed under terms and conditions beyond his control.   In the present case, the petitioner was fully aware of the potential immigration consequences, and counsel went to extreme lengths to try to arrange a transfer agreement that would minimize the impact on him, but the relevant law enforcement authorities simply would not sign off on it.   Under such circumstances, there was no deficiency in counsel's performance.  Hill v. Lockhart, supra, 474 U.S. 59.   Also, as the petitioner has failed to present his own evidence that there was any reasonable probability that some better outcome would have resulted had counsel used other means, he has also failed to show any prejudice.  Id. As such, this claim also fails.  Hall v. Commissioner of Correction, supra, 124 Conn.App. 783.

The petitioner next claims that Attorney D'Onofrio was ineffective for failing to raise a claim that his defense attorneys were ineffective for failing to advise him that he could have appealed his guilty plea.   First, there has never been an application filed to appeal the petitioner's conviction.   Therefore, this issue is not ripe for adjudication.   Janulawicz v. Commissioner of Correction, (2013) (SC18790, Oct. 8, 2013) (“[T]he petitioner's habeas petition is not ripe for adjudication in view of the fact that the petitioner's injury is contingent on this court's denial of a motion to file a late petition for certification, a motion that the petitioner has never filed”).   Even if the matter were ripe for adjudication, however, the petitioner's claim would still fail.  “[T]o show prejudice [when counsel fails to apprise a defendant of his or her appellate rights], a defendant must demonstrate that there is a reasonable probability that, but for counsel's deficient failure to consult with him about an appeal, he would have timely appealed.”  Ghant v. Commissioner of Correction, 255 Conn. 1, 10, 761 A.2d 740 (2000).   In the present case, even assuming for purposes of argument that the letter and other communications defense counsel received from the petitioner after sentencing should have been considered as a basis for appealing his conviction, those communications were not delivered by the petitioner until nearly three months after he was sentenced, which was well beyond any applicable appeal period.   E.g., General Statutes § 54–95 and Practice Book § 61–3 et seq.   Therefore, even if this issue was ripe for adjudication, defense counsel would not be found to have rendered deficient performance for failing to file a timely appeal.  Ghant v. Commissioner of Correction, supra, 255 Conn. 10.   As such, the petitioner's claim would still fail.  Hall v. Commissioner of Correction, supra, 124 Conn.App. 783.

The claims made by the petitioner in paragraphs 5i and j both allege, although in slightly different ways, that Attorney D'Onofrio was ineffective for failing to raise a claim that the trial court failed to advise the petitioner of his right to remain silent during the plea canvass.   As discussed above, one of the material elements of a valid plea canvass is that the court addresses the defendant in open court to determine that he is knowingly waiving three core constitutional rights, one of which is the right against self-incrimination.   State v. Badgett, supra, 200 Conn. 418.  “Because it cannot be presumed from a silent record that the decision to plead guilty was the product of the defendant's full understanding of what the plea connotes and of its consequences ․ the federal constitution requires that the record of the plea canvass indicate the voluntariness of any waiver of the three core constitutional rights [implicated by the guilty plea].   To ensure that this constitutional requirement is satisfied, the trial court is obliged to comply with the dictates of Practice Book §§ [39–19 and 39–20] which enumerate the responsibilities of the court in conducting the plea canvass.   However, because the determination as to whether a plea has been knowingly and voluntarily entered entails an examination of all of the relevant circumstances ․ the plea may satisfy constitutional requirements even in the absence of literal compliance with the prophylactic safeguards of Practice Book §§ [39–19 and 39–20].   Thus, although the trial court [may fail to strictly comply by asking the defendant a specific question about each of the three core constitutional rights he is waiving], that fact alone is not dispositive of the defendant's constitutional claim.   We must determine, instead, whether, in light of all of the circumstances evident from the record before us, the trial court's failure to inform the defendant ․ rendered his guilty plea unknowing or involuntary.   Our inquiry, therefore, must focus upon the effect, if any, that the trial court's noncompliance with [the] Practice Book ․ had on the defendant's ability to make a fully informed and voluntary plea decision.”  (Citations omitted;  internal quotation marks omitted.)  State v. Domain, 235 Conn. 679, 686–88, 668 A.2d 1333 (1996).  “[O]nly substantial, rather than literal, compliance with § 39–20 is required in order to validate a defendant's plea of guilty ․ [T]he test for substantial compliance is whether, in light of all of the circumstances, the trial court's literal compliance with § 39–20 would have made any difference in the trial court's determination that the plea was voluntary.   See State v. Domain, supra, 235 Conn. at 688, 668 A.2d 1333 (test for substantial compliance with § 39–19 is whether accurate information would have made any difference in defendant's decision to enter guilty plea).”  State v. Ocasio, 253 Conn. 375, 380, 751 A.2d 825 (2000).

In the present case, the trial court did fail to comply strictly with the requirements of the practice book, in that the petitioner was never specifically asked during the plea canvass whether he understood that he was giving up his right to remain silent and to not incriminate himself by pleading guilty.  (Exhibit 1, Transcript of State v. Taylor, September 12, 2001.)   Notwithstanding that omission, however, this court finds that examination of the entire record in the present case reveals that literal compliance with Practice Book § 39–20 would not have made any difference in the trial court's determination that the petitioner entered his plea knowingly and voluntarily nor would a specific notification to the petitioner that he was waiving his right to remain silent have made any difference in his decision to enter his guilty plea.  Ocasio, supra, 253 Conn. 380.

First, as this court has found earlier in this decision, defense counsel thoroughly advised the petitioner as to all of his rights and options regarding whether to take his case to trial or to enter a plea.   This matter was literally on the eve of trial when the petitioner made the decision to enter his guilty plea, and the contemplated defense at trial was going to be the affirmative defense of extreme emotional disturbance, which, as eluded to by defense counsel, would most likely have required the petitioner to take the witness stand.   Under those circumstances, this court does not find it an unreasonable leap of logic to presume that part of the conversation the petitioner had with counsel regarding the likely defense strategy also included an advisement to the petitioner that he had the right not to testify, to avoid incriminating himself, but that in order to establish the defense of extreme emotional disturbance he would be taking the stand and effectively admitting to the substance of the alleged criminal acts, but claiming that he committed them under an altered state of mind.   Additionally, the transcript in the present case shows that the petitioner entered his plea under the Alford doctrine.   Alford allows a defendant to accept a plea agreement while still refusing to admit to the facts alleged by the State that constitute the crime.  (See footnote 1.) This concept is not a simple one to understand and indicates to this court that the petitioner was fully aware that he had a right maintain his silence and not to incriminate himself.   This court finds that, even had the trial court specifically inquired whether the petitioner understood he was giving up his right to remain silent, it would not have made a difference in his decision to move forward with the entry of his guilty plea.  Id.;  see also, Hill v. Lockhart, supra, 474 U.S. 59.   The testimony in the present case made it clear that the petitioner was not prepared to proceed to trial on this matter and that he made the conscious decision to accept the plea agreement of twenty-five years in order to avoid the possibility that he might have been effectively sentenced to spend the remainder of his natural life in prison had he been convicted of the crime of murder after a trial.   As such, the petitioner was not prejudiced by the trial court's failure to specifically inquire whether he understood that he was waiving his right to remain silent, and his claims under paragraphs 5i and j fail.  Hall v. Commissioner of Correction, supra, 124 Conn.App. 783.

The petitioner's final claim against Attorney D'Onofrio is that he failed to raise a claim that the trial court failed to ascertain during the plea canvass whether the petitioner was aware of the immigration consequences of his conviction, as required General Statutes § 54–1j.¹⁷  Although the trial court did inquire whether the petitioner was aware that his guilty plea could have consequences on his immigration status here in the United States;  (Exhibit A, p. 11, lines 4–9);  it is the petitioner's contention that the trial court had an obligation above and beyond simply warning him of the possible consequences.   It is the petitioner's claim that the trial court was obligated to specifically notify him that deportation was a near certainty based on the charge for which he was being convicted.

The petitioner's claim is meritless.   The petitioner entered his guilty plea on September 21, 2001.   At the time of his plea, immigration consequences resulting from a conviction, regardless of how definite, were considered to be collateral consequences, about which defense counsel and the court were only required to warn a defendant prior to the acceptance of his guilty plea.   See, e.g., Niver v. Commissioner of Corrections, 101 Conn.App. 1, 4–5, 919 A.2d 1073 (2007) (citing, State v. Aquino, 89 Conn.App. 395, 403–04, 873 A.2d 1075 (2005), rev'd on other grounds, 279 Conn. 293, 901 A.2d 1194 (2006)).   Some nine years after the petitioner entered his plea, Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 1486–87, 176 L.Ed.2d 284 (2010), was decided, which held that counsel was required to specifically advise clients when conviction of a certain offense fell within the realm of charges that would result in mandatory deportation under federal law.  Id. The holding in Padilla, however, only applied to convictions that had not become final before its release.  Chaidez v. United States, 133 S.Ct. 1103, 1113, 185 L.Ed.2d 149 (2013) (“[D]efendants whose convictions became final prior to Padilla [ ] cannot benefit from its holding”).  Padilla and Chaidez addresses only the obligations of defense counsel, and there is no case or statute this court is aware of, before or since, that imposes a duty upon the court to go beyond the warning required under General Statutes § 54–1j, and the petitioner has not been able to provide any such authority.   As such, the immigration warning the petitioner received from the court in the present case was constitutionally adequate, which means that Attorney D'Onofrio was not deficient in his representation for failing to raise this issue as a habeas claim.  Hill v. Lockhart, supra, 474 U.S. 59.   Again, therefore, the petitioner's claim fails.  Hall v. Commissioner of Correction, supra, 124 Conn.App. 783.

Count Two—Ineffective Assistance Against Attorney Laljeebhai Patel

As discussed above, Attorney Patel represented the petitioner in the habeas that was pending under docket no.   CV08–4002555, which Solomon, J. dismissed on December 2, 2009, after granting Attorney Patel's Anders motion to withdraw.   The petitioner claims that Attorney Patel was ineffective for failing to properly investigate and raise claims of ineffective assistance against Attorney D'Onofrio on each of the same grounds the petitioner has asserted directly against Attorney D'Onofrio in count one of this petition.   It would be enough to say that all of the claims of ineffectiveness made by the petitioner against Attorney Patel fail as a matter of law, because the court has already found above that the petitioner has failed to meet his necessary burden of proving claims of ineffective assistance against both Attorney D'Onofrio, prior habeas counsel, and Attorneys Merkin and Hazelkamp, defense counsel.  Lozada v. Warden, 223 Conn. 834, 842–43, 613 A.2d 818 (1992) ( “[t]o succeed in his bid for a writ of habeas corpus, the petitioner must prove both (1) that his appointed habeas counsel was ineffective, and (2) that his trial counsel was ineffective”).   Additionally, however, the court also finds that the claims against Attorney Patel fail because the petitioner did not meet his burden of proving that Attorney Patel provided him with constitutionally deficient representation.  Hall v. Commissioner of Correction, supra, 124 Conn.App. 783.

The court finds that Attorney Patel reviewed all of the relevant court records, statutes and case decisions related to the petitioner's case and, where necessary, conducted additional investigation.   The court also finds that Attorney Patel focused almost exclusively on trying to establish a claim of ineffective assistance against Attorney D'Onofrio relating to his prosecution of the petitioner's first habeas claim that he was not in a proper mental state to enter a valid guilty plea, because that was the primary complaint related to him by the petitioner.   Attorney Patel went to extreme lengths to try to find support for the petitioner's claim, including retaining three experts to review his medical and mental health records, however, none of them was able to render a helpful opinion.   The court also finds that Attorney Patel made efforts to investigate and research other claims made by the petitioner, such as claims that certain statutes were unconstitutional and issues related to advice the petitioner received about deportation and parole.   Attorney Patel testified credibly and accurately, however, that raising any of these collateral issues would be rendered moot, unless he was first able to find a non-frivolous basis upon which to invalidate the petitioner's guilty plea.   See, Buckley v. Warden, 177 Conn. 538, 542–43, 418 A.2d 913 (1979).¹⁸  Therefore, the petitioner's claims of ineffective assistance against Attorney Patel also fail.  Hall v. Commissioner of Correction, supra, 124 Conn.App. 783.

III. Conclusion

Based on the foregoing, the petition for writ of habeas corpus is DENIED.   Judgment shall enter for the respondent on all claims.

Counsel for the petitioner shall prepare and submit a judgment file to the clerk within thirty (30) days.   Notwithstanding, if either party wishes to appeal this judgment, or any part hereof, all necessary appellate forms and notices shall be filed within the time-frames set forth in applicable Practice Book and statutory sections.

Hon. John M. Newson

FOOTNOTES

FN1. North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) (“[W]hile most pleas of guilty consist of both a waiver of trial and an express admission of guilt, the latter element is not a constitutional requisite of the imposition of [a] criminal penalty.   An individual accused of [a] crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime”)..  FN1. North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) (“[W]hile most pleas of guilty consist of both a waiver of trial and an express admission of guilt, the latter element is not a constitutional requisite of the imposition of [a] criminal penalty.   An individual accused of [a] crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime”).

FN2. In addition to those docket numbers specifically discussed within this memorandum of decision, the petitioner has also filed petitions under CV09–4003295 (declined on 12/18/09 pursuant to Practice Book § 23–24, Solomon, J.) and CV10–4003323 (declined on 12/22/09 pursuant to Practice Book § 23–24, T. Santos, J.), both of which are consolidated with CV08–4002555 in an appeal currently pending under AC31835.   Additionally, consolidated with the present habeas are four other petitions filed on April 9, 2010, December 15, 2010, August 10, 2011 and August 18, 2011, all challenging this same conviction.   Therefore, the petitioner has filed a total of eight separate complaints to date regarding this same conviction..  FN2. In addition to those docket numbers specifically discussed within this memorandum of decision, the petitioner has also filed petitions under CV09–4003295 (declined on 12/18/09 pursuant to Practice Book § 23–24, Solomon, J.) and CV10–4003323 (declined on 12/22/09 pursuant to Practice Book § 23–24, T. Santos, J.), both of which are consolidated with CV08–4002555 in an appeal currently pending under AC31835.   Additionally, consolidated with the present habeas are four other petitions filed on April 9, 2010, December 15, 2010, August 10, 2011 and August 18, 2011, all challenging this same conviction.   Therefore, the petitioner has filed a total of eight separate complaints to date regarding this same conviction.

FN3. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), allows an attorney appointed to represent an indigent defendant on appeal who concludes that an appeal would be frivolous to request that the appellate court allow him to withdraw or that the court dispose of the case without the filing of merits briefs..  FN3. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), allows an attorney appointed to represent an indigent defendant on appeal who concludes that an appeal would be frivolous to request that the appellate court allow him to withdraw or that the court dispose of the case without the filing of merits briefs.

FN4. At the time CV08–4002555 was pending, Practice Book (Rev.2009) § 23–42, which has since been amended, provided in pertinent part:  “(a) If the judicial authority finds that the case is wholly without merit, it shall allow counsel to withdraw and shall consider whether the petition shall be dismissed or allowed to proceed, with the petitioner pro se ․” (Emphasis added.)   As noted in Footnote 2, CV08–4002555 remains pending on appeal, the sole issue granted certification being whether it was appropriate for the habeas court to dismiss the petition without providing the petitioner the opportunity for an evidentiary hearing.  Taylor v. Commissioner of Correction, 134 Conn.App. 405, 40 A.3d 336, cert. granted, 305 Conn. 910, 45 A.3d 99 (2012)..  FN4. At the time CV08–4002555 was pending, Practice Book (Rev.2009) § 23–42, which has since been amended, provided in pertinent part:  “(a) If the judicial authority finds that the case is wholly without merit, it shall allow counsel to withdraw and shall consider whether the petition shall be dismissed or allowed to proceed, with the petitioner pro se ․” (Emphasis added.)   As noted in Footnote 2, CV08–4002555 remains pending on appeal, the sole issue granted certification being whether it was appropriate for the habeas court to dismiss the petition without providing the petitioner the opportunity for an evidentiary hearing.  Taylor v. Commissioner of Correction, 134 Conn.App. 405, 40 A.3d 336, cert. granted, 305 Conn. 910, 45 A.3d 99 (2012).

FN5. “On appeal, the petitioner does not challenge the court's decision to permit appointed counsel to withdraw after finding the petitioner's case to be wholly without merit.   We note that the petitioner's only claim on appeal comes from the first of the petitioner's three separate appeals from the habeas court under docket number AC31835.”  Taylor v. Commissioner of Correction, 134 Conn.App. 405, 410 n.7, 40 A.3d 336 (2012)..  FN5. “On appeal, the petitioner does not challenge the court's decision to permit appointed counsel to withdraw after finding the petitioner's case to be wholly without merit.   We note that the petitioner's only claim on appeal comes from the first of the petitioner's three separate appeals from the habeas court under docket number AC31835.”  Taylor v. Commissioner of Correction, 134 Conn.App. 405, 410 n.7, 40 A.3d 336 (2012).

FN6. Practice Rook (Rev.2009) § 23–42 Judicial Action on Motion for Permission to Withdraw Appearance, which has since been amended, provided in pertinent part:  “(a) If the judicial authority finds that the case is wholly without merit, it shall allow counsel to withdraw and shall consider whether the petition shall be dismissed or allowed to proceed, with the petitioner pro se ․” Therefore, the court was required to make two separate rulings in the petitioner's case, the first being whether to allow counsel to withdraw, and the second being whether the petitioner would be allowed to pursue the matter on his own.   The petitioner in this case only challenged the propriety of the court's latter decision to dismiss the case without first providing him with the opportunity for an evidentiary hearing.  (See, footnote 5.).  FN6. Practice Rook (Rev.2009) § 23–42 Judicial Action on Motion for Permission to Withdraw Appearance, which has since been amended, provided in pertinent part:  “(a) If the judicial authority finds that the case is wholly without merit, it shall allow counsel to withdraw and shall consider whether the petition shall be dismissed or allowed to proceed, with the petitioner pro se ․” Therefore, the court was required to make two separate rulings in the petitioner's case, the first being whether to allow counsel to withdraw, and the second being whether the petitioner would be allowed to pursue the matter on his own.   The petitioner in this case only challenged the propriety of the court's latter decision to dismiss the case without first providing him with the opportunity for an evidentiary hearing.  (See, footnote 5.)

FN7. “Anders and Pascucci stand for the proposition that when a motion to withdraw as counsel is filed asserting that there are no nonfrivolous issues on appeal, the court is required to review the entire record before it, including the pleadings and evidence.   The court's ultimate determination is a mixed question of law and fact.   The de novo standard of review is applicable to such determinations of a trial or habeas court's decision ․ Furthermore, it is only logical that this court review the entire record before the habeas court, as the federal and state precedents require this of the habeas court itself.   In effect, in our de novo review, we undertake an Anders style of review of the Anders decision.”   (Citation omitted.)  Lorthe v. Commissioner of Correction, supra, 103 Conn.App. 676..  FN7. “Anders and Pascucci stand for the proposition that when a motion to withdraw as counsel is filed asserting that there are no nonfrivolous issues on appeal, the court is required to review the entire record before it, including the pleadings and evidence.   The court's ultimate determination is a mixed question of law and fact.   The de novo standard of review is applicable to such determinations of a trial or habeas court's decision ․ Furthermore, it is only logical that this court review the entire record before the habeas court, as the federal and state precedents require this of the habeas court itself.   In effect, in our de novo review, we undertake an Anders style of review of the Anders decision.”   (Citation omitted.)  Lorthe v. Commissioner of Correction, supra, 103 Conn.App. 676.

FN8. This resolves the claims made by the petitioner in Count One, 5a, b, e, f and g..  FN8. This resolves the claims made by the petitioner in Count One, 5a, b, e, f and g.

FN9. “That evening, after learning of the details of the victim's new relationship, the petitioner struck the victim in the head with a hammer ․ The petitioner then called 911, told the operator what he had done and asked for the police to come take him into custody.”  Taylor v. Commissioner of Correction, supra, 94 Conn.App. 776..  FN9. “That evening, after learning of the details of the victim's new relationship, the petitioner struck the victim in the head with a hammer ․ The petitioner then called 911, told the operator what he had done and asked for the police to come take him into custody.”  Taylor v. Commissioner of Correction, supra, 94 Conn.App. 776.

FN10. This resolves the claim made in Count One, paragraph 5d..  FN10. This resolves the claim made in Count One, paragraph 5d.

FN11. The petitioner's case was on the eve of trial when he entered his plea, and the anticipated defense was going to be extreme emotional disturbance..  FN11. The petitioner's case was on the eve of trial when he entered his plea, and the anticipated defense was going to be extreme emotional disturbance.

FN12. This resolves the claim made in paragraph 5c..  FN12. This resolves the claim made in paragraph 5c.

FN13. An additional issue touched on by the parties and the court during oral argument, but not necessary to address in any detail here, is the fact that judges are not allowed to provide legal advice, which likely would have resulted in the trial court directing the petitioner to consult with defense counsel on any substantive legal question he may have asked about the terms, conditions and ramifications of his plea agreement.   See, Code of Judicial Conduct § 3.10..  FN13. An additional issue touched on by the parties and the court during oral argument, but not necessary to address in any detail here, is the fact that judges are not allowed to provide legal advice, which likely would have resulted in the trial court directing the petitioner to consult with defense counsel on any substantive legal question he may have asked about the terms, conditions and ramifications of his plea agreement.   See, Code of Judicial Conduct § 3.10.

FN14. Resolution of this claim also necessarily resolves the claim made by the petitioner in paragraph 5k where he claims that Attorney D'Onofrio was ineffective for failing to claim that the trial court committed error by failing to notify him that he could ask questions during the plea canvas..  FN14. Resolution of this claim also necessarily resolves the claim made by the petitioner in paragraph 5k where he claims that Attorney D'Onofrio was ineffective for failing to claim that the trial court committed error by failing to notify him that he could ask questions during the plea canvas.

FN15. General Statutes § 54–125a.   Parole of inmate serving sentence of more than two years.   Eligibility.  Hearing to determine suitability for parole release of certain inmates, provides in pertinent part:  ․”(b)(1) No person convicted of any of the following offenses, which was committed on or after July 1, 1981, shall be eligible for parole under subsection (a) of this section:  (A) Capital felony, as provided under the provisions of section 53a–54b in effect prior to April 25, 2012, (B) murder with special circumstances, as provided under the provisions of section 53a–54b in effect on or after April 25, 2012, (C) felony murder, as provided in section 53a–54c, (D) arson murder, as provided in section 53a–54d, (E) murder, as provided in section 53a–54a, or (F) aggravated sexual assault in the first degree, as provided in section 53a–70a.  (2) A person convicted of (A) a violation of section 53a–100aa or 53a–102, or (B) an offense, other than an offense specified in subdivision (1) of this subsection, where the underlying facts and circumstances of the offense involve the use, attempted use or threatened use of physical force against another person shall be ineligible for parole under subsection (a) of this section until such person has served not less than eighty-five per cent of the definite sentence imposed less any risk reduction credit earned under the provisions of section 18–98e.”.  FN15. General Statutes § 54–125a.   Parole of inmate serving sentence of more than two years.   Eligibility.  Hearing to determine suitability for parole release of certain inmates, provides in pertinent part:  ․”(b)(1) No person convicted of any of the following offenses, which was committed on or after July 1, 1981, shall be eligible for parole under subsection (a) of this section:  (A) Capital felony, as provided under the provisions of section 53a–54b in effect prior to April 25, 2012, (B) murder with special circumstances, as provided under the provisions of section 53a–54b in effect on or after April 25, 2012, (C) felony murder, as provided in section 53a–54c, (D) arson murder, as provided in section 53a–54d, (E) murder, as provided in section 53a–54a, or (F) aggravated sexual assault in the first degree, as provided in section 53a–70a.  (2) A person convicted of (A) a violation of section 53a–100aa or 53a–102, or (B) an offense, other than an offense specified in subdivision (1) of this subsection, where the underlying facts and circumstances of the offense involve the use, attempted use or threatened use of physical force against another person shall be ineligible for parole under subsection (a) of this section until such person has served not less than eighty-five per cent of the definite sentence imposed less any risk reduction credit earned under the provisions of section 18–98e.”

FN16. Although not specified in the pleadings, the court assumes for purposes of argument that the basis of the petitioner's appeal would have been either whether his mental state prevented him from entering a valid guilty plea or defense counsel's advice to him before entering the plea, the only appealable issues presented by his claims.  State v. Hanson, supra, 117 Conn.App. 436, 456, 979 A.2d 576 (2009), cert. denied, 295 Conn. 907, 989 A.2d 604 (2010), certiorari denied, 131 S.Ct. 425, 178 L.Ed.2d 331 (2010) (“When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea ․ In general, the only allowable challenges after a plea are those relating either to the voluntary and intelligent nature of the plea or the exercise of the trial court's jurisdiction”)..  FN16. Although not specified in the pleadings, the court assumes for purposes of argument that the basis of the petitioner's appeal would have been either whether his mental state prevented him from entering a valid guilty plea or defense counsel's advice to him before entering the plea, the only appealable issues presented by his claims.  State v. Hanson, supra, 117 Conn.App. 436, 456, 979 A.2d 576 (2009), cert. denied, 295 Conn. 907, 989 A.2d 604 (2010), certiorari denied, 131 S.Ct. 425, 178 L.Ed.2d 331 (2010) (“When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea ․ In general, the only allowable challenges after a plea are those relating either to the voluntary and intelligent nature of the plea or the exercise of the trial court's jurisdiction”).

FN17. General Statutes § 54–1j.   Ascertainment that defendant understands possible immigration and naturalization consequences of guilty or nolo contendere plea. (a) The court shall not accept a plea of guilty or nolo contendere from any defendant in any criminal proceeding unless the court first addresses the defendant personally and determines that the defendant fully understands 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 ․.  FN17. General Statutes § 54–1j.   Ascertainment that defendant understands possible immigration and naturalization consequences of guilty or nolo contendere plea. (a) The court shall not accept a plea of guilty or nolo contendere from any defendant in any criminal proceeding unless the court first addresses the defendant personally and determines that the defendant fully understands 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 ․

FN18. “[A] guilty plea represents a break in the chain of events which has preceded it in the criminal process.   When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.   He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in McMann [v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970) ] ․” (Citations omitted;  internal quotation marks omitted.)   Buckley v. Warden, supra, 177 Conn. 542–43..  FN18. “[A] guilty plea represents a break in the chain of events which has preceded it in the criminal process.   When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.   He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in McMann [v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970) ] ․” (Citations omitted;  internal quotation marks omitted.)   Buckley v. Warden, supra, 177 Conn. 542–43.

Newson, John M., J.