Placide v. Commissioner of Correction ( 2016 )

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EDDY PLACIDE v. COMMISSIONER
OF CORRECTION
(AC 37189)
Alvord, Keller and Pellegrino, Js.
Argued April 6—officially released August 9, 2016
(Appeal from Superior Court, judicial district of
Tolland, Oliver, J.)
Vishal K. Garg, for the appellant (petitioner).
Margaret Gaffney Radionovas, senior assistant
state’s attorney, with whom, on the brief, were Richard
J. Colangelo, Jr., state’s attorney, and Tamara A.
Grosso, assistant state’s attorney, for the appellee
(respondent).
Opinion
PELLEGRINO, J. Following a grant of certification
to appeal, the petitioner, Eddy Placide, appeals from
the judgment of the habeas court denying his amended
petition for a writ of habeas corpus. On appeal, he
claims that the habeas court (1) improperly rejected
his claim that his right to due process under the federal
and state constitutions was violated because his deci-
sion to enter two guilty pleas was not made knowingly,
intelligently, and voluntarily, and (2) erred in denying
his claim of ineffective assistance of trial counsel. We
affirm the judgment of the habeas court.
The following facts and procedural history as set
forth in the memorandum of decision by the habeas
court are relevant to the present appeal. The petitioner
was born in Port Au Prince, Haiti, and legally entered
the United States in 2007 in the state of Florida. The
petitioner became a legal permanent resident on August
8, 2007. On November 13, 2013, the petitioner entered
guilty pleas and was sentenced for the crimes of assault
in the second degree in violation of General Statutes
§ 53a-60 and assault in the third degree in violation of
General Statutes § 53a-61. The petitioner received a
total effective sentence of three years incarceration,
execution suspended, followed by two years of proba-
tion. Two days after the sentencing for the two assault
charges, the petitioner was arrested for another crime.
He subsequently came to the attention of immigration
officials, who took the petitioner into custody. On the
sole basis of his conviction for assault in the second
degree, the immigration court ordered the petitioner
removed to Haiti. The petitioner was removed from the
United States in May, 2015.
The petitioner filed an amended three count petition
for a writ of habeas corpus dated June 11, 2014, after
he was taken into custody by immigration officials.
Counts one and two are relevant to this appeal. In count
one, the petitioner alleged that his constitutional right
to due process was violated because his decision to
enter guilty pleas to the charges of assault in the second
degree and assault in the third degree was not made
knowingly, intelligently, and voluntarily due to his lack
of understanding of the probability of his deportation
under the terms of the plea agreement. In count two,
the petitioner alleged that his trial attorney rendered
ineffective assistance of counsel with respect to the
guilty plea for assault in the second degree by failing to
properly investigate the petitioner’s immigration status,
and as a result, she failed to properly advise the peti-
tioner of the immigration consequences of pleading
guilty.
The respondent, the Commissioner of Correction,
denied the substance of all of the petitioner’s claims in
a return filed on June 11, 2014. On July 15, 2014, the
court held a habeas trial, during which the petitioner
presented documentary and testimonial evidence. Rele-
vant to the issues on appeal, the petitioner presented
the testimony of his trial attorney, his own testimony,
and the testimony of an expert witness. The petitioner’s
trial attorney testified that early in her representation
of the petitioner, she reviewed his ‘‘arrest report’’ (Uni-
form Arrest Report), which indicated that the petition-
er’s nationality was Haitian and that he was born in
Haiti. The trial attorney testified that she inquired of the
petitioner’s immigration status, and that the petitioner
stated he was a United States citizen. Additionally, the
petitioner’s trial attorney testified that ‘‘in an abundance
of caution,’’ she informed the petitioner that if he was
not a citizen, he could be ordered deported and removed
from the United States.
The petitioner testified on his own behalf during the
habeas trial and confirmed that before entering his
pleas, he told his trial attorney that he was a United
States citizen. The petitioner also testified that at the
time of the pleas, he believed that his status as a legal
permanent resident was the same as being a United
States citizen for immigration purposes. Additionally,
the petitioner testified that before entering his pleas,
the court advised him that if he was not a United States
citizen his pleas could result in his deportation. The
expert witness, an expert in immigration law, testified
on behalf of the petitioner that the assault in the second
degree conviction was the only factual basis for the
petitioner’s removal to Haiti, and that in his expert
opinion, the immigration consequences of the plea
would have been ‘‘very foreseeable.’’
On August 11, 2014, the habeas court rendered judg-
ment denying the petitioner’s amended habeas petition.
In the court’s memorandum of decision, it determined,
inter alia, that the petitioner had failed to show ineffec-
tive assistance on the basis of his trial attorney’s failure
to further investigate the petitioner’s immigration sta-
tus. The court found that his trial attorney had testified
credibly, and that she made appropriate inquiry as to
the petitioner’s immigration status on more than one
occasion. Additionally, the court found that the petition-
er’s trial attorney informed the petitioner of the risks
of deportation despite his claims of United States citi-
zenship. Finally, the court found the testimony of the
petitioner to lack credibility, finding that ‘‘the conse-
quences that befell the petitioner appear to be the result
of his lack of candor toward his counsel and the court,
not due to a lack of understanding, faulty plea canvass,
or deficient performance of counsel.’’ This appeal fol-
lowed.1 Additional facts will be set forth as necessary.
On appeal, the petitioner claims that the habeas court
erred when it concluded that (1) his due process rights
were not violated, and (2) that his trial attorney did not
render ineffective assistance by failing to inquire further
into the petitioner’s immigration status. We begin by
setting forth the applicable standard of review. ‘‘The
governing legal principles in cases involving claims of
ineffective assistance of counsel arising in connection
with guilty pleas are set forth in Strickland [v. Washing-
ton,

466 U.S. 668

104 S. Ct. 2052

80 L. Ed. 2d 647

(1984)] and Hill [v. Lockhart,

474 U.S. 52

, 106 S. Ct 366,

88 L. Ed. 2d 203

(1985)]. According to [Strickland],
[an ineffective assistance of counsel] claim must be
supported by evidence establishing that (1) counsel’s
representation fell below an objective standard of rea-
sonableness, 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; internanal quota-
tion marks omitted.) Hall v. Commissioner of Correc-
tion,

124 Conn. App. 778

, 782,

6 A.3d 827

(2010).
‘‘In its analysis, a reviewing court may look to the
performance prong or to the prejudice prong, and the
petitioner’s failure to prove either is fatal to a habeas
petition. The prejudice inquiry in claims arising from
counsel’s advice during the plea process differs from
the analysis of claims following conviction after trial.
. . . In Hill v. Lockhart, [supra,

474 U.S. 52

], the
Supreme Court of the United States articulated a modi-
fied prejudice standard for cases in which the convic-
tion has resulted from a guilty plea. . . . In order to
establish prejudice in such cases, the petitioner must
demonstrate 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.’’ (Cita-
tions omitted; footnote omitted; internal quotation
marks omitted.) Delvecchio v. Commissioner of Correc-
tion,

149 Conn. App. 494

, 500,

88 A.3d 610

, cert. denied,

312 Conn. 904

91 A.3d 906

(2014). ‘‘It is well established
that when analyzing a claim of ineffective assistance,
counsel is strongly presumed to have rendered adequate
assistance and made all significant decisions in the exer-
cise of reasonable professional judgment.’’ (Internal
quotation marks omitted.) Sanders v. Commissioner
of Correction,

83 Conn. App. 543

, 551,

851 A.2d 313

,
cert. denied,

271 Conn. 914

859 A.2d 569

(2004). The
factual findings made by a habeas court regarding trial
counsel’s representation of a petitioner will not be dis-
turbed absent a showing that they were clearly errone-
ous. Banks v. Commissioner of Correction, 147 Conn.
App. 331, 338,

82 A.3d 658

(2013), cert. denied,

311 Conn. 916

84 A.3d 883

(2014). The court’s ultimate
determination as to whether these findings satisfy the
legal standard for ineffective assistance of counsel,
however, is subject to plenary review.

Id. The petitioner

asserts that the habeas court improp-
erly found that his trial attorney adequately inquired
into his immigration status and properly advised him
of the potential immigration consequences to pleading
guilty. Specifically, he maintains that his trial attorney
acted unreasonably by failing to determine accurately
the petitioner’s immigration status despite having mate-
rials in her possession indicating that the petitioner was
born in Haiti. We are not persuaded.
The habeas court determined that the representation
of the petitioner’s trial attorny was not deficient relative
to her questioning of the petitioner regarding his immi-
gration status. The petitioner’s trial attorney specifically
asked the petitioner whether he was a United States
citizen, and he responded in the affirmative. ‘‘The rea-
sonableness of counsel’s actions may be determined
by or substantially influenced by the defendant’s own
statements or actions. Counsel’s actions are usually
based, quite properly, on informed strategic choices
made by the defendant and on information supplied by
the defendant. . . . [W]hen a defendant has given
counsel reason to believe that pursuing certain investi-
gations would be fruitless . . . counsel’s failure to pur-
sue these investigations may not later be challenged as
unreasonable.’’ Strickland v.

Washington, supra

466 U.S. 691

.
The presence of information in the arrest report
regarding the petitioner’s nationality and place of birth
was not enough to notify his trial attorney of the peti-
tioner’s true immigration status, because the petitioner
himself explicitly stated that he was a citizen. Even
despite the petitioner’s assurances that he was a United
States citizen, his trial attorney, ‘‘in an abundance of
caution’’ informed the petitioner of the various existing
immigration statuses, and warned him that if he is not
in fact a United States citizen, he could be deported as
a result of pleading guilty. Moreover, the trial court also
warned the petitioner during the plea canvass that his
guilty plea could result in deportation if he was not a
citizen. On the basis of our review of the factual findings
made by the habeas court, the court properly concluded
that the petitioner’s trial attorney had not performed
below an objective standard of reasonableness. Accord-
ingly, the petitioner’s claim of ineffective assistance of
counsel fails the performance prong of Strickland.2
The petitioner also asserts that the habeas court erred
in finding that his due process rights were not violated
and that his pleas were made knowingly, intelligently,
and voluntarily. Specifically, the petitioner argues that
he erroneously believed that he was a United States
citizen, and as a result, he was not aware that he would
face adverse immigration consequences by pleading
guilty. The petitioner’s due process claim is a reformula-
tion of his ineffective assistance of counsel claim in that
the petitioner argues that his pleas were not knowing,
intelligent, and voluntary due directly to his trial attor-
ney’s ineffective assistance in failing to properly advise
him. Because we conclude that the habeas court prop-
erly found that the petitioner’s trial attorney was not
ineffective, this claim fails. Furthermore, in its memo-
randum of decision, the habeas court found that ‘‘the
consequences that befell the petitioner appear to be
the result of his lack of candor toward his counsel and
the court, not due to a lack of understanding, faulty
plea canvass, or deficient performance of counsel.’’ On
the basis of the habeas court’s findings and our analysis
of the petitioner’s claim for ineffective assistance of
counsel, we affirm the judgment denying the petition-
er’s claim for violation of due process.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The respondent filed a motion to dismiss on the basis of mootness. Both
parties addressed the issue in briefs and at oral argument before this court.
The record reflects that the conviction for assault in the second degree was
the sole basis for the petitioner’s deportation. See State v. Aquino,

279 Conn. 293

, 298,

901 A.2d 1194

(2006) (for deported petitioner to establish
that appeal is not moot, must establish that underlying conviction was sole
basis of deportation). Further, we are not convinced that the petitioner’s
other conviction for assault in the third degree would bar reentry as a crime
of moral turpitude. See St. Juste v. Commissioner of Correction, 155 Conn.
App. 164,

109 A.3d 523

, cert. granted,

316 Conn. 901

111 A.3d 470

(2015).
The respondent argues that under 8 U.S.C. § 1229b (a), the petitioner would
not be eligible for cancellation of removal because he has not met the
statutory seven-year resident requirement. However, the notice to appear,
which stopped the accrual of residency, was based on the petitioner’s convic-
tion for assault in the second degree. If the conviction is vacated, we are
not convinced that no relief could befall the petitioner. Accordingly, we
decide the case on the merits.
2
Because the petitioner has failed to meet the performance prong of
Strickland, we need not reach the issue of prejudice under Hill v.

Lockhart, supra

474 U.S. 52

. ‘‘It is well settled that [a] reviewing court can find against
a petitioner on either ground, whichever is easier.’’ (Internal quotation marks
omitted.) Small v. Commissioner of Correction,

286 Conn. 707