Kondjoua v. Commissioner of Correction ( 2019 )

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CHRYSOSTOME KONDJOUA v. COMMISSIONER
OF CORRECTION
(AC 41930)
DiPentima, C. J., and Alvord and Pellegrino, Js.
Syllabus
The petitioner, a Cameroonian citizen who had been convicted, on a guilty
plea, of the crime of sexual assault in the third degree, sought a writ
of habeas corpus, claiming that his trial counsel had provided ineffective
assistance by failing to advise him properly of the immigration conse-
quences of pleading guilty and that his right to due process was violated
because his plea was not knowingly, intelligently and voluntarily made
due to trial counsel’s failure to advise him properly with respect to
the immigration consequences. The respondent, the Commissioner of
Correction, filed a return raising a special defense that the petitioner’s
due process claim was procedural defaulted. The habeas court rendered
judgment denying the habeas petition, finding that the petitioner failed
to establish that trial counsel had rendered ineffective assistance or
that he was prejudiced by trial counsel’s alleged deficient performance.
The court also found that the petitioner’s due process claim was proce-
durally defaulted because he failed to meet his burden as to his ineffec-
tive assistance of counsel claim and had not established cause and
prejudice sufficient to overcome the procedural default. In reaching its
decision, the court credited trial counsel’s testimony that he had advised
the petitioner, prior to the plea hearing, that he would be deported if
he pleaded guilty, and it discredited the petitioner’s testimony to the
contrary. Thereafter, on the granting of certification, the petitioner
appealed to this court. Held:
1. The petitioner could not prevail on his claim that the habeas court improp-
erly rejected his ineffective assistance of counsel claim, that court having
properly determined that the petitioner failed to establish that he was
prejudiced by his trial counsel’s alleged deficient performance; the peti-
tioner failed to meet his burden of demonstrating that he would have
rejected the plea agreement and insisted on going to trial had he known
the immigration consequences of his guilty plea because, beyond his
own testimony, which the habeas court found to be not credible, the
petitioner did not offer any evidence that he would have rejected the
plea offer and gone to trial and, in fact, there was significant evidence
contradicting his claim, and the petitioner did not raise any claim of
improper advice from trial counsel regarding immigration consequences
until his habeas counsel filed the operative petition, several years after
deportation proceedings had been initiated against him.
2. The petitioner could not prevail on his claim that his due process rights
were violated because his guilty plea was not made knowingly, intelli-
gently and voluntarily; the petitioner’s due process claim relied solely
on his allegation that his trial counsel improperly advised him about
the immigration consequences of pleading guilty, and, therefore, because
this court agreed with the habeas court that the petitioner had not
demonstrated ineffective assistance of trial counsel, the petitioner was
unable to establish the cause and prejudice sufficient to overcome the
procedural default.
Argued September 11—officially released December 17, 2019
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district of
Tolland and tried to the court, Hon. Edward J. Mullar-
key, judge trial referee; judgment denying the petition,
from which the petitioner, on the granting of certifica-
tion, appealed to this court. Affirmed.
Jennifer B. Smith, for the appellant (petitioner).
Lisa A. Riggione, senior assistant state’s attorney,
with whom, on the brief, were Patrick J. Griffin, state’s
attorney, Angela Macchiarulo, senior assistant state’s
attorney, and Michael Proto, assistant state’s attorney,
for the appellee (respondent).
Opinion
PELLEGRINO, J. The petitioner, Chrysostome Kond-
joua, appeals from the judgment of the habeas court
denying his petition for a writ of habeas corpus. The
petitioner claims that the habeas court improperly
rejected his claims that (1) his trial counsel provided
ineffective assistance by failing to advise him properly
of the immigration consequences of pleading guilty
under Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473,
176 L. Ed. 2d 284 (2010), and (2) his guilty plea was
not knowingly, intelligently, and voluntarily made. We
disagree and, therefore, affirm the judgment of the
habeas court.
The following facts and procedural history are rele-
vant to this appeal. The petitioner is a Cameroonian
citizen who has resided in the United States since 2010
as a long-term, permanent resident with a green card.
He was arrested on November 29, 2013, and charged
with the sexual assault in the first degree of an eighty-
three year old woman, for whom he had been working.
The petitioner entered a plea of not guilty and elected
a jury trial.
On December 16, 2014, after the jury had been picked
and evidence was set to begin, the petitioner accepted
a plea agreement to the reduced charge of sexual assault
in the third degree. Before accepting the petitioner’s
guilty plea, the trial court canvassed him.1 The trial
court found that the plea was made knowingly, intelli-
gently, and voluntarily, and ordered a presentence
investigation. On March 4, 2015, the court sentenced
the petitioner to the agreed disposition of five years of
imprisonment, execution suspended after twenty
months, with ten years of probation. The petitioner also
was required to register as a sex offender for ten years.
The petitioner did not file a direct appeal.
While the petitioner was serving his sentence, the
United States Department of Homeland Security
(department) initiated deportation proceedings against
him. The department cited the petitioner’s March, 2015
conviction for sexual assault in the third degree as the
ground for removal and stated that the petitioner was
subject to removal because he had been convicted of
an aggravated felony and a crime of moral turpitude,
in violation of § 237 (a) (2) (A) (iii) and § 237 (a) (2)
(A) (i) of the Immigration and Nationality Act, respec-
tively. A warrant for the petitioner’s arrest was served
on July 14, 2015, and the petitioner was taken into the
department’s custody.2
On June 19, 2015, the petitioner, then self-repre-
sented, filed a petition for a writ of habeas corpus.3
Appointed counsel thereafter filed an amended peti-
tion.4 On October 17, 2017, counsel filed a second
amended petition, which is the operative petition in this
case. It alleged two claims: Ineffective assistance of
trial counsel for the improper advice concerning the
immigration consequences of a guilty plea and a due
process challenge to his guilty plea on the basis that it
was not knowingly, intelligently, and voluntarily made.
On December 19, 2017, the respondent, the Commis-
sioner of Correction, filed a return alleging that the
petitioner’s due process claim was in procedural
default. The petitioner filed a reply denying the allega-
tions in the respondent’s return on December 28, 2017.
On May 16, 2018, the habeas court issued a memoran-
dum of decision in which it denied the petition. The
habeas court found that the petitioner failed to establish
that trial counsel had rendered ineffective assistance.
The court found the testimony of trial counsel credible
and the petitioner’s testimony not credible, and deter-
mined that counsel had advised the petitioner, prior to
the plea hearing, that he would be deported if he
pleaded guilty. Further, the court found that the totality
of counsel’s advice demonstrated that he adequately
had advised the petitioner of the immigration conse-
quences of pleading guilty. The court further found that,
‘‘because the court does not find the petitioner credible,
the claim must also fail because the petitioner has not
demonstrated that he would have maintained his plea
of not guilty and proceeded to trial.’’ Regarding the
petitioner’s second claim, the court found that the peti-
tioner had not established cause and prejudice suffi-
cient to overcome the procedural default. On June 15,
2018, the habeas court granted the petitioner’s petition
for certification to appeal. This appeal followed. Addi-
tional facts will be set forth as necessary.
I
The petitioner claims that the habeas court erred
in rejecting his claim that his trial counsel provided
ineffective assistance by failing to advise him properly
of the immigration consequences of pleading guilty5
pursuant to Padilla v. Kentucky, supra, 559 U.S. 356.
Because we conclude that the habeas court properly
determined that the petitioner failed to establish that
he was prejudiced by trial counsel’s alleged deficient
performance, we reject the petitioner’s claim.
We begin our analysis with the legal principles that
govern our review of the petitioner’s claim. The sixth
amendment to the United States constitution, applica-
ble to the states through the due process clause of
the fourteenth amendment, and article first, § 8, of the
constitution of Connecticut provide that in all criminal
prosecutions, the accused shall enjoy the right to the
effective assistance of counsel. U.S. Const., amend. VI;
Conn. Const., art. I, § 8; see Gideon v. Wainwright, 372
U.S. 335, 342, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963);
Duncan v. Commissioner of Correction, 171 Conn.
App. 635, 646, 157 A.3d 1169, cert. denied, 325 Conn.
923, 159 A.3d 1172 (2017).
‘‘A claim of ineffective assistance of counsel is gov-
erned by the two-pronged test set forth in Strickland
v. Washington, [466 U.S. 668, 687, 104 S. Ct. 2052, 80
L. Ed. 2d 674 (1984)]. Under Strickland, the petitioner
has the burden of demonstrating that (1) counsel’s rep-
resentation fell below an objective standard of reason-
ableness, and (2) counsel’s deficient performance preju-
diced 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. . . . For claims of ineffective assistance
of counsel arising out of the plea process, the United
States Supreme Court has modified the second prong of
the Strickland test to require that the petitioner produce
evidence that there is a reasonable probability that, but
for counsel’s errors, [the petitioner] would not have
pleaded guilty and would have insisted on going to trial.
. . . An ineffective assistance of counsel claim will suc-
ceed only if both prongs [of Strickland] are satisfied.
. . . It is axiomatic that courts may decide against a
petitioner on either prong [of the Strickland test],
whichever is easier . . . . In its analysis, a reviewing
court may look to the performance prong or the preju-
dice prong, and the petitioner’s failure to prove either
is fatal to a habeas petition.’’ (Citation omitted; internal
quotation marks omitted.) Echeverria v. Commissioner
of Correction, 193 Conn. App. 1, 9–10, A.3d
(2019).
‘‘[T]he Hill [v. Lockhart, 474 U.S. 51, 106 S. Ct. 366,
88 L. Ed. 2d 203 (1985)] prejudice standard provides
that [i]n the context of a guilty plea . . . to succeed
on the prejudice prong the petitioner must demonstrate
that, but for counsel’s alleged ineffective performance,
the petitioner would not have pleaded guilty and would
have proceeded to trial. . . . In evaluating whether the
petitioner ha[s] met this burden and . . . the credibil-
ity of the petitioner’s assertions that he would have
gone to trial, it [is] appropriate for the court to consider
whether a decision to reject the plea bargain would
have been rational under the circumstances.’’ (Citations
omitted; internal quotation marks omitted.) Duncan v.
Commissioner of Correction, supra, 171 Conn. App.
663; see also Humble v. Commissioner of Correction,
180 Conn. App. 697, 705, 184 A.3d 804 (‘‘[t]o satisfy the
prejudice prong [under Strickland–Hill], the petitioner
must show a reasonable probability that, but for coun-
sel’s errors, he would not have pleaded guilty and would
have insisted on going to trial’’), cert. denied, 330 Conn.
939, 195 A.3d 692 (2018). Finally, ‘‘[c]ourts should not
upset a plea solely because of post hoc assertions from
a defendant about how he would have pleaded but for
his attorney’s deficiencies. Judges should instead look
to contemporaneous evidence to substantiate a defen-
dant’s expressed preferences.’’ Lee v. United States,
U.S. , 137 S. Ct. 1958, 1967, 198 L. Ed. 2d 476 (2017).
‘‘The [ultimate] conclusions reached by the [habeas]
court in its decision [on a] habeas petition are matters
of law, subject to plenary review. . . . [When] the legal
conclusions of the court are challenged, [the reviewing
court] must determine whether they are legally and
logically correct . . . and whether they find support
in the facts that appear in the record. . . . A reviewing
court ordinarily will afford deference to those credibil-
ity determinations made by the habeas court on the
basis of [its] firsthand observation of [a witness’] con-
duct, demeanor and attitude.’’ (Citations omitted; inter-
nal quotation marks omitted.) Flomo v. Commissioner
of Correction, 169 Conn. App. 266, 278–79, 149 A.3d 185
(2016), cert. denied, 324 Conn. 906, 152 A.3d 544 (2017).
In regard to the prejudice prong of Strickland, the
petitioner argues that this case should be remanded to
the habeas court for a determination of prejudice under
Strickland. The petitioner proffers two reasons for
remand: (1) ‘‘the habeas court failed to consider
whether . . . there was a reasonable probability that,
but for counsel’s deficient performance, the petitioner
would not have pleaded guilty and would have insisted
on going to trial’’ and (2) ‘‘the habeas court speculated
about the strength of evidence against the petitioner.’’6
In its memorandum of decision, the habeas court found
that the petitioner’s testimony was not credible and
determined that he had not met his burden of establish-
ing that he would have rejected the state’s plea offer
and elected to go to trial.
Beyond the petitioner’s own testimony, which the
habeas court found to be not credible, the petitioner
has not offered any evidence that he would have
rejected the plea offer and gone to trial. Instead, there
is significant evidence contradicting this claim. The
petitioner originally was charged with sexual assault in
the first degree. The charge was based on the complaint
of an eighty-three year old woman who stated that the
petitioner, whom she hired to do some work at her
house, assaulted her by penetrating her from behind
without her consent. While the petitioner’s criminal
case was pending, trial counsel engaged in plea negotia-
tions on the petitioner’s behalf. During that time, the
petitioner made a counter offer of two years to serve,
which the state rejected. Despite trial counsel’s efforts,
the state refused to reduce the charge to a point where
the petitioner could avoid immigration consequences.
The petitioner filed a motion for a speedy trial, but he
did not pursue the motion. After the jury had been
picked and on the same day evidence was set to begin
with the testimony from the eighty-five year old victim,
who was present and ready to testify, the petitioner
pleaded guilty to the reduced charge of sexual assault
in the third degree. At sentencing, the victim addressed
the court and expressed her support for the sentence
and stated that she hoped the petitioner would be
deported. After the victim spoke, the petitioner
addressed the court and did not deny engaging in sexual
relations with the victim and stated that the victim had
consented. The habeas court found that the ‘‘consent’’
defense proffered by the petitioner was not credible
and ‘‘seems unlikely to have prevailed’’ at trial. In addi-
tion, the petitioner did not raise any claim of improper
advice regarding immigration consequences from his
trial counsel until his habeas counsel filed the operative
petition, several years after the department initiated
deportation proceedings. The petitioner has failed to
meet his burden of demonstrating that he would have
rejected the plea agreement and insisted on going to
trial.
Because we conclude that the trial court properly
determined that the petitioner failed to prove the preju-
dice prong of Strickland, we need not reach the issue of
deficient performance. See Strickland v. Washington,
supra, 466 U.S. 697 (‘‘a court need not determine
whether counsel’s performance was deficient before
examining the prejudice suffered by the defendant’’);
Buie v. Commissioner of Correction, 187 Conn. App.
414, 422, 202 A.3d 453 (deciding ineffective assistance
of counsel on basis of failure to demonstrate prejudice
prong), cert. denied, 331 Conn. 905, 202 A.3d 373 (2019);
Bova v. Commissioner of Correction, 162 Conn. App.
348, 358, 131 A.3d 268 (‘‘[t]he petitioner has failed to
prove that he was prejudiced . . . therefore we decline
to reach the first Strickland prong’’), cert. denied, 320
Conn. 920, 132 A.3d 1094 (2016); Russell v. Commis-
sioner of Correction, 150 Conn. App. 38, 46, 89 A.3d
1023 (resolving petitioner’s claim on basis of prejudice
prong), cert. denied, 312 Conn. 921, 94 A.3d 1200 (2014);
see also Ouellette v. Commissioner of Correction, 154
Conn. App. 433, 448 n.9, 107 A.3d 480 (2014) (‘‘[a] court
evaluating an ineffective assistance claim need not
address both components of the Strickland test if the
[claimant] makes an insufficient showing on one’’ [inter-
nal quotation marks omitted]). Accordingly, the peti-
tioner’s claim of ineffective assistance of counsel fails.
II
Next, the petitioner claims that the habeas court vio-
lated his right to due process by rejecting his claim that
his guilty plea was not made knowingly, intelligently,
and voluntarily. Specifically, he argues that trial counsel
misadvised him about the immigration consequences
of a guilty plea, and, as a result, the guilty plea he
entered was made not knowing that deportation was
inevitable. The respondent argues that this claim was
in procedural default and, therefore, fails. The habeas
court agreed with the respondent, and so do we.
Our review of this claim is plenary. See Hinds v.
Commissioner of Correction, 321 Conn. 56, 65, 136 A.3d
596 (2016) (‘‘[q]uestions of law and mixed questions of
law and fact receive plenary review’’ [internal quotation
marks omitted]). ‘‘When a habeas petitioner has failed
to file a motion to withdraw his guilty plea or to chal-
lenge the validity of the plea on direct appeal, a chal-
lenge to the validity of the plea in a habeas proceeding
is subject to procedural default.’’ (Internal quotation
marks omitted.) Crawford v. Commissioner of Correc-
tion, 294 Conn. 165, 175, 982 A.2d 620 (2009). ‘‘In
essence, the procedural default doctrine holds that a
claimant may not raise, in a collateral proceeding,
claims that he could have made at trial or on direct
appeal in the original proceeding and that if the state, in
response, alleges that a claimant should be procedurally
defaulted from now making the claim, the claimant
bears the burden of demonstrating good cause for hav-
ing failed to raise the claim directly, and he must show
that he suffered actual prejudice as a result of this
excusable failure.’’ Hinds v. Commissioner of Correc-
tion, 151 Conn. App. 837, 852, 97 A.3d 986 (2014), aff’d,
321 Conn. 56, 136 A.3d 596 (2016). ‘‘[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 . . . . Therefore, attorney error short of
ineffective assistance of counsel does not adequately
excuse compliance with our rules of [trial and] appellate
procedure.’’ (Internal quotation marks omitted.) Bru-
netti v. Commissioner of Correction, 134 Conn. App.
160, 168, 37 A.3d 811, cert. denied, 305 Conn. 903, 44
A.3d 180 (2012).
In the operative petition, the petitioner claimed that
his guilty plea was not made knowingly, intelligently,
and voluntarily because his trial counsel had failed to
advise him adequately of the immigration conse-
quences. He also alleged that ‘‘the sentencing court . . .
did not specifically advise the petitioner that he would
be deported as a result of his plea.’’ In its return, the
respondent raised the special defense of procedural
default.
The habeas court found that the petitioner’s claim
was procedurally defaulted because he had failed to
meet his burden as to the claimed ineffective assistance
of counsel. The court further found that the trial court’s
‘‘canvass comported with General Statutes § 54-1j.’’ The
habeas court concluded that because the petitioner has
failed to demonstrate any cause and prejudice sufficient
to overcome the procedural default, the due process
claim must fail on that basis. Even if it was not procedur-
ally defaulted, the court concluded that the claim would
have failed on the merits as the court already had found
that there was no ineffective assistance of counsel.
On appeal, the petitioner claims that the habeas court
erred in concluding that his claim was procedurally
defaulted because he had in fact demonstrated that trial
counsel misadvised him of the immigration conse-
quences of pleading guilty.7 As a result, the petitioner
argues, the demonstration of ineffective counsel satis-
fied the cause and prejudice standard to overcome the
procedural default.
The respondent relies on the habeas court’s determi-
nation of procedural default and argues that if we con-
clude that the petitioner’s ineffective assistance of
counsel claim fails, his second claim fails as well, citing
Placide v. Commissioner of Correction, 167 Conn. App.
497, 504–505, cert. denied, 323 Conn. 922, 150 A.3d 1150
(2016), for the proposition that ‘‘because [the] petition-
er’s due process claim was [a] reformulation of his
ineffective assistance claim, and this Court concluded
that the habeas court properly found that [the] petition-
er’s attorney was not ineffective, this claim fails.’’ We
agree with the respondent.
The petitioner’s due process claim relies solely on
his allegation that trial counsel improperly advised him
about the immigration consequences of pleading guilty.
Because we agree with the habeas court that the peti-
tioner has not demonstrated ineffective assistance of
trial counsel, the petitioner is unable to establish the
cause and prejudice sufficient to overcome the proce-
dural default.
The judgment is affirmed.
In this opinion the other judges concurred.
1
During the plea canvass, the following colloquy occurred:
‘‘The Court: [Petitioner], I’m going to ask you some questions. Keep your
voice up, so the interpreter can understand and hear you. Sir, how far have
you gone in school, be it here, or in Cameroon?
‘‘[The Petitioner]: High school diploma.
‘‘The Court: And have you understood all the conversations you’ve had
with your lawyer, leading up to your decision to plead guilty to this felony
charge today?
‘‘[The Petitioner]: Yes, Your Honor.
‘‘The Court: Are you satisfied with his advice?
‘‘[The Petitioner]: Yes, Your Honor.
‘‘The Court: Are you under the influence today of any alcohol, drugs, [or]
medications of any kind?
‘‘[The Petitioner]: No.
‘‘The Court: Are you currently on probation or parole?
‘‘[The Petitioner]: No.
‘‘The Court: Did you have enough time to go over—
‘‘[Defense Counsel]: Your Honor, just one second.
‘‘(Aside)
‘‘[Defense Counsel]: Okay. I’m sorry. I apologize.
‘‘The Court: Did you go over with your lawyer the charge, sexual assault
in the third degree, as charged, class D felony, carries up to five years, and/
or, a $5000 fine, a felony, causing you to give a sample of your DNA to the
state of Connecticut, and you’re going to have to register as a sex offender
in the state of Connecticut. You’re going to have to abide by all the rules
and regulations of registration. One of those is, if you get to treatment,
you’d have to go in and admit whatever your involvement was with this
case. If you failed to do that, you could be charged with violation of probation
and serve the unexecuted portion of your sentence, which in this case would
be the difference between five years and the twenty months you’re going
to serve, or you’d have forty months hanging over your head. So, you could
go back and serve that forty months. This is considered a nonviolent ten year
registration. Have you gone over all of those things with [defense counsel]?
‘‘[The Petitioner]: Yes, Your Honor.
‘‘The Court: [Defense Counsel], have you done that?
‘‘[Defense Counsel]: The only thing I didn’t go over, Your Honor, was the
DNA, but he has already given a DNA sample. So—
‘‘The Court: Why don’t you just explain to him why he has to do that?
‘‘(Aside)
‘‘The Court: Okay?
‘‘[Defense Counsel]: Yes. Thank you.
‘‘The Court: Sexual assault in the third degree, as charged, class D felony,
a person is guilty of sexual assault in the third degree when such person
compels another person to submit to sexual contact by the use of force
against such other person, or a third person. You have now given up your
right to remain silent, to continue to plead not guilty, to a court or a jury
trial, with the assistance of your attorney, your right to cross-examine wit-
nesses, to call witnesses on your behalf, testify, if you wanted to, present
defenses, and have the state prove you guilty beyond a reasonable doubt.
In other words, there will be no trial. The jury was upstairs, evidence was
about to begin. This is your decision. Correct?
‘‘[The Petitioner]: Yes.
‘‘The Court: Did you make this decision freely and voluntarily?
‘‘[The Petitioner]: Yes, Your Honor.
‘‘The Court: Did anybody force you, or threaten you, in anyway, to get
you to plead guilty?
‘‘[The Petitioner]: No.
‘‘The Court: You’ve heard the facts recited by the state’s attorney. Are
those facts, essentially, correct?
‘‘[The Petitioner]: Yes, Your Honor.
‘‘The Court: Do you understand if you are not a citizen of the United
States that the plea that you have just entered could result in deportation,
or removal from the United States, exclusion from the readmission to the
United States, denial of naturalization, pursuant to the laws of the United
States?
‘‘[The Petitioner]: Yes, Your Honor.
‘‘The Court: Did you go over that issue with your lawyer?
‘‘[The Petitioner]: Yes.
‘‘The Court: [Defense Counsel], did you go over that issue with your client?
‘‘[Defense Counsel]: We did, Your Honor. I informed my client that, based
on the charges, it is highly likely that, at the very least, immigration will
begin deportation proceedings against him, and the likelihood that he will
get deported. But, I also informed him that I do not practice immigration
law and that I will put him in touch with an immigration lawyer to help
him fight those proceedings, if necessary.
‘‘The Court: Was he satisfied with that advice?
‘‘[Defense Counsel]: He was, Your Honor.’’
2
The petitioner filed an application for deferral of removal under the
Convention against Torture, which was denied on September 14, 2015. The
petitioner appealed to the Board of Immigration Appeals (board). The board
found that the immigration judge had properly entered the order for removal,
dismissed the petitioner’s appeal, and denied his motion to remand for
further consideration.
3
The petitioner’s petition alleged a due process violation claiming that
his guilty plea was not made knowingly, intelligently, or voluntarily because
he was under the influence of medication, trial counsel pressured him to
plead guilty, and he had trouble understanding and communicating with
trial counsel because English is not his first language and he did not always
have the benefit of an interpreter during their conversations.
4
The petitioner’s first amended petition contained two counts, in which
he alleged an ineffective assistance of counsel claim and a due process
violation in that the petitioner’s plea was not entered knowingly, intelligently,
or voluntarily. The ineffective assistance claim alleged that trial counsel
failed (1) to investigate properly a motion to suppress the petitioner’s state-
ments, (2) to advise the petitioner properly about a withdrawal of his guilty
plea, (3) to inquire or investigate the medications the petitioner was taking
when he pleaded guilty, and (4) to file a motion to withdraw the petitioner’s
guilty plea when the petitioner expressed to the court at sentencing that
he wanted to go to trial. The due process claim alleged that the petitioner
was under the influence of medication and did not understand the terms
of the plea agreement when he pleaded guilty.
5
The petitioner alternatively claims that the habeas court erroneously
determined that trial counsel properly had advised him that he would be
deported as a result of pleading guilty. Because we determine that the
petitioner failed to demonstrate that he was prejudiced by trial counsel’s
actions, we do not reach this claim.
6
In the petitioner’s appellate brief, he also claimed that the ‘‘habeas court
abused its discretion in declining to admit evidence of prejudice’’ as another
justification for requesting remand. During oral argument before this court,
however, the petitioner explicitly stated that he was declining to pursue
that claim at this time. Therefore, we do not address it here.
7
The petitioner attempted to raise two other claims on appeal in relation
to this due process claim. We do not consider these claims as they were
not alleged in the operative habeas petition. Although both claims were
raised in the petitioner’s original petition and the first amended petition,
the claims were not alleged in the operative petition. We therefore consider
these claims abandoned. See Lund v. Milford Hospital, Inc., 326 Conn. 846,
850, 168 A.3d 479 (2017) (‘‘When an amended pleading is filed, it operates
as a waiver of the original pleading. The original pleading drops out of the
case and although it remains in the file, it cannot serve as the basis for any
future judgment, and previous rulings on the original pleading cannot be
made the subject of appeal.’’ [Internal quotation marks omitted.]).