Paulino v. Commissioner of Correction ( 2015 )


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    JOSE PAULINO v. COMMISSIONER OF CORRECTION
    (AC 35691)
    Gruendel, Lavine and Dupont, Js.
    Argued October 9, 2014—officially released January 27, 2015
    (Appeal from Superior Court, judicial district of
    Tolland, geographical area number nineteen,
    Solomon, J.)
    Neal Cone, senior assistant public defender, for the
    appellant (petitioner).
    Nancy L. Walker, deputy assistant state’s attorney,
    with whom, on the brief, were Brian Preleski, state’s
    attorney, and Richard K. Greenalch, Jr., special deputy
    assistant state’s attorney, for the appellee (respondent).
    Opinion
    DUPONT, J. The petitioner, Jose Paulino, appeals
    from the denial of his petition for certification to appeal
    from the judgment of the habeas court dismissing with-
    out prejudice his petition for a writ of habeas corpus.
    The underlying basic question for our resolution is
    whether the habeas court properly denied the petition-
    er’s certification to appeal because of a lack of subject
    matter jurisdiction due to the fact that the court could
    not provide any relief to the petitioner and the issue
    was, therefore, moot. We conclude that the habeas
    court did not abuse its discretion in denying the petition
    for certification to appeal and, accordingly, we dismiss
    the appeal.
    The following facts and procedural history are rele-
    vant to our decision. The petitioner is a citizen of the
    Dominican Republic who had visited the United States
    periodically and had married a woman who lived in
    Hartford. In 2008, following a trial to the court, the
    petitioner was convicted of possession of narcotics with
    intent to sell by a person who is not drug-dependent
    in violation of General Statutes § 21a-278 (b) and pos-
    session of narcotics with intent to sell within 1500 feet
    of a public school in violation of General Statutes § 21a-
    278a (b). The trial court then sentenced the petitioner
    to three year terms of incarceration on each charge, to
    be served consecutively, for a total effective sentence
    of six years of imprisonment. The petitioner appealed
    the convictions to this court, claiming that the trial
    court had abused its discretion by failing to order a
    competency hearing for him and by depriving him of
    the right to a fair trial. State v. Paulino, 127 Conn.
    App. 51, 52, 
    12 A.3d 628
    (2011). This court affirmed the
    convictions on March 1, 2011. 
    Id., 70. On
    December 14, 2011, while incarcerated at Osborn
    Correctional Institute in Somers, the petitioner filed a
    handwritten pro se petition for writ of habeas corpus.
    In his petition, the petitioner claimed that the attorney
    representing him at the criminal trial had provided inef-
    fective assistance of counsel. The petitioner also alleged
    that the government unlawfully entered his home, with-
    out a warrant or probable cause, where he kept large
    sums of money legally earned, and unlawfully inter-
    cepted and monitored telephone conversations with a
    man known to the petitioner as a heroin dealer. Finally,
    the petitioner made a claim of actual innocence and
    asked the court to order a new trial or release him.
    On June 21, 2012, the United States Immigration
    Court issued an oral decision finding the petitioner
    removable as charged. In particular, the immigration
    court first found that ‘‘removability has been estab-
    lished by clear and convincing evidence as a non-immi-
    grant overstay.’’ The immigration court then found that
    the petitioner’s ‘‘conviction for possession with intent
    to sell narcotics is both an aggravated felony and an
    offense relating to a controlled substance.’’ Accord-
    ingly, the immigration court ordered that the petitioner
    be ‘‘removed to the Dominican Republic.’’ The peti-
    tioner then filed an appeal from that decision, noting
    his pending habeas corpus action in state court. The
    Board of Immigration Appeals (board) affirmed the
    decision and dismissed his appeal on October 18, 2012,
    reasoning that ‘‘the fact that the respondent may be
    pursuing post-conviction relief in the form of a collat-
    eral attack on his conviction in state criminal court does
    not affect its finality for federal immigration purposes.’’
    The petitioner appealed that dismissal to the United
    States Court of Appeals for the Second Circuit on
    December 14, 2012, which subsequently dismissed the
    appeal on May 14, 2013.
    On January 11, 2013, while the immigration appeal
    was still pending in the Second Circuit, the habeas court
    held a status conference at which the petitioner’s
    habeas counsel informed the court that the petitioner
    had been deported.1 On the basis of this information, the
    habeas court dismissed the petitioner’s habeas petition
    without prejudice.2 On January 17, 2013, the petitioner’s
    habeas counsel filed a petition for certification to
    appeal. The habeas court denied the petition for certifi-
    cation to appeal on March 13, 2013. This appeal
    followed.3
    On appeal, the petitioner claims that the habeas court
    abused its discretion by denying certification to appeal.
    In response, the respondent, the Commissioner of Cor-
    rection, argues that this court does not need to reach
    that issue because there is a threshold issue that is
    dispositive of the appeal. Specifically, the respondent
    argues that the Second Circuit’s dismissal of the immi-
    gration appeal, together with the petitioner’s failure
    to show a reasonable possibility that further habeas
    proceedings would provide practical relief, render this
    appeal moot. While we agree with the respondent that
    the petitioner has failed to show a reasonable possibility
    that further habeas proceedings would provide practi-
    cal relief, we disagree with the respondent’s argument
    and instead conclude that the habeas court did not
    abuse its discretion in denying certification to appeal.
    ‘‘We begin by setting forth the applicable standard
    of review and procedural hurdles that a petitioner must
    surmount to obtain appellate review of the merits of a
    habeas court’s denial of a habeas petition following
    denial of certification to appeal. In Simms v. Warden,
    
    229 Conn. 178
    , 187, 
    640 A.2d 601
    (1994), [our Supreme
    Court] concluded that . . . [General Statutes] § 52-470
    (b) prevents a reviewing court from hearing the merits
    of a habeas appeal following the denial of certification
    to appeal unless the petitioner establishes that the
    denial of certification constituted an abuse of discretion
    by the habeas court. In Simms v. Warden, 
    230 Conn. 608
    , 615–16, 
    646 A.2d 126
    (1994), [our Supreme Court]
    incorporated the factors adopted by the United States
    Supreme Court in Lozada v. Deeds, 
    498 U.S. 430
    , 431–32,
    
    111 S. Ct. 860
    , 
    112 L. Ed. 2d 956
    (1991), as the appro-
    priate standard for determining whether the habeas
    court abused its discretion in denying certification to
    appeal. This standard requires the petitioner to demon-
    strate that the issues are debatable among jurists of
    reason; that a court could resolve the issues [in a differ-
    ent manner]; or that the questions are adequate to
    deserve encouragement to proceed further. . . . A
    petitioner who establishes an abuse of discretion
    through one of the factors listed above must then dem-
    onstrate that the judgment of the habeas court should
    be reversed on its merits. . . . In determining whether
    the habeas court abused its discretion in denying the
    petitioner’s request for certification, we necessarily
    must consider the merits of the petitioner’s underlying
    claims to determine whether the habeas court reason-
    ably determined that the petitioner’s appeal was frivo-
    lous. . . .
    ‘‘The conclusions reached by the trial court in its
    decision to dismiss [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.’’ (Citation omitted;
    internal quotation marks omitted.) McMillion v. Com-
    missioner of Correction, 
    151 Conn. App. 861
    , 868–70,
    
    97 A.3d 32
    (2014).
    As noted previously, the habeas court dismissed the
    petition for a writ of habeas corpus without prejudice,
    noting that the court lacked jurisdiction to hear the
    petition because of the petitioner’s deportation. ‘‘Moot-
    ness . . . implicates subject matter jurisdiction, which
    imposes a duty on the [trial] court to dismiss a case if
    the court can no longer grant practical relief to the
    parties. . . . Mootness presents a circumstance
    wherein the issue before the court has been resolved
    or had lost its significance because of a change in the
    condition of affairs between the parties. . . . A case
    becomes moot when due to intervening circumstances
    a controversy between the parties no longer exists.’’
    (Citations omitted; internal quotation marks omitted.)
    We the People of Connecticut, Inc. v. Malloy, 150 Conn.
    App. 576, 581, 
    92 A.3d 961
    , cert. denied, 
    314 Conn. 919
    ,
    
    100 A.3d 850
    (2014).
    ‘‘Because courts are established to resolve actual con-
    troversies, before a claimed controversy is entitled to
    a resolution on the merits it must be justiciable . . . .
    Justiciability requires (1) that there be an actual contro-
    versy between or among the parties to the dispute . . .
    (2) that the interests of the parties be adverse . . .
    (3) that the matter in controversy be capable of being
    adjudicated by judicial power . . . and (4) that the
    determination of the controversy will result in practical
    relief to the complainant. . . . A case is considered
    moot if [the trial] court cannot grant the appellant any
    practical relief through its disposition of the merits
    . . . .’’ (Internal quotation marks omitted.) Wyatt
    Energy, Inc. v. Motiva Enterprises, LLC, 
    308 Conn. 719
    , 736, 
    66 A.3d 848
    (2013).
    This court addressed the issue of whether a petition-
    er’s deportation renders a case moot in Quiroga v.
    Commissioner of Correction, 
    149 Conn. App. 168
    , 
    87 A.3d 1171
    , cert. denied, 
    311 Conn. 950
    , 
    91 A.3d 462
    (2014). In Quiroga, the petitioner, a citizen of Uruguay,
    was convicted of possession of narcotics and larceny
    in the first degree. 
    Id., 170. The
    petitioner in that case
    filed a petition for a writ of habeas corpus, alleging that
    his representation regarding the larceny conviction was
    ineffective. 
    Id., 171. Following
    a trial, the habeas court
    denied the petition and the petitioner appealed. 
    Id., 172. During
    the pendency of that appeal, however, the
    petitioner was permanently removed to Uruguay. 
    Id., 172–73. On
    appeal, this court relied on our Supreme
    Court’s decision in State v. Aquino, 
    279 Conn. 293
    , 
    901 A.2d 1194
    (2006),4 finding that there was ‘‘no evidence
    in the record before us that the petitioner’s guilty plea
    to larceny in the first degree was the sole reason for
    his deportation. To the contrary, the immigration judge
    specifically found that removability on the ground of
    the petitioner’s narcotics convictions had been estab-
    lished by clear and convincing evidence.’’ (Emphasis
    in original; internal quotation marks omitted.) Quiroga
    v. Commissioner of 
    Correction, supra
    , 173. Further-
    more, this court rejected the petitioner’s argument that
    absent the larceny conviction, ‘‘he would have been
    eligible for a possible cancellation of removal pursuant
    to 8 U.S.C. § 1229b.’’ 
    Id., 173–74. This
    court dismissed
    the petitioner’s appeal, holding that ‘‘Aquino requires
    proof that the larceny plea was the exclusive basis of
    the petitioner’s deportation, rather than a primary or
    likely one.’’ 
    Id., 174. The
    present case is similar to Quiroga. Here, the
    petitioner was convicted of two drug related offenses.
    After the petitioner served his sentences for these con-
    victions, the immigration court ordered that he be
    removed from the United States. There is no evidence
    in the record before us, nor was there any evidence
    presented to the habeas court, to suggest that the peti-
    tioner’s convictions were the sole reason for his depor-
    tation. To the contrary, the immigration court
    specifically found that removability on the ground of
    the petitioner’s nonimmigrant overstay had ‘‘been estab-
    lished by clear and convincing evidence.’’ In the absence
    of any such evidence, we conclude that the petitioner
    has failed to demonstrate that the issue of whether his
    habeas petition was moot is debatable among jurists
    of reason, that a court could resolve that issue differ-
    ently, or that the issue deserves encouragement to pro-
    ceed further.
    The petitioner here nevertheless maintains that we
    can retain jurisdiction over his appeal pursuant to the
    collateral consequences doctrine. We disagree.
    ‘‘Under the collateral consequences doctrine, this
    court may retain jurisdiction and consider a claim that
    otherwise has been rendered moot when a litigant
    shows there is a reasonable possibility that prejudicial
    collateral consequences will occur. . . . Where there
    is no direct practical relief available from the reversal
    of the judgment . . . the collateral consequences doc-
    trine acts as a surrogate, calling for a determination
    whether a decision in the case can afford the litigant
    some practical relief in the future. The reviewing court
    . . . determines, based upon the particular situation,
    whether, the prejudicial collateral consequences are
    reasonably possible.’’ (Citation omitted; internal quota-
    tion marks omitted.) State v. Chavarro, 
    130 Conn. App. 12
    , 18, 
    21 A.3d 541
    (2011). ‘‘[T]his standard requires the
    [litigant] to demonstrate more than an abstract, purely
    speculative injury, but does not require the [litigant] to
    prove that it is more probable than not that the prejudi-
    cial consequences will occur.’’ (Internal quotation
    marks omitted.) Quiroga v. Commissioner of Correc-
    
    tion, supra
    , 
    149 Conn. 176
    .
    The petitioner argues that as a collateral consequence
    of the denial of his petition for certification to appeal,
    he is permanently barred from reentering the United
    States. At oral argument before this court, the petition-
    er’s counsel argued that if the petitioner’s drug related
    convictions were overturned during habeas corpus pro-
    ceedings, the petitioner would only be barred from read-
    mission to the United States for the ten years applicable
    to the visa overstay. See 8 U.S.C. § 1182 (a) (9) (A)
    (ii). The petitioner, however, has failed to produce any
    evidence that, in the absence of his convictions, he
    would be permitted to return to the United States. Fur-
    thermore, the petitioner failed to produce any such
    evidence for the habeas court prior to its dismissal of
    the petitioner’s habeas petition. Therefore, we conclude
    that the petitioner has failed to demonstrate that the
    habeas court abused its discretion in denying his peti-
    tion for certification to appeal.
    The appeal is dismissed.
    In this opinion the other judges concurred.
    1
    The record does not indicate the exact date that the petitioner was
    deported. It is clear, however, that he had served his entire sentence and
    was released on parole from prison on August 12, 2012. Furthermore, the
    record indicates that he was no longer in the United States on January
    11, 2013.
    2
    ‘‘A dismissal without prejudice terminates litigation and the court’s
    responsibilities, while leaving the door open for some new, future litigation.’’
    (Internal quotation marks omitted.) Commission on Human Rights &
    Opportunities v. Torrington, 
    96 Conn. App. 313
    , 319, 
    901 A.2d 46
    , cert.
    denied, 
    280 Conn. 929
    , 
    909 A.2d 957
    (2006). ‘‘Dismissal without prejudice’’
    is defined in Ballentine’s Law Dictionary as ‘‘[a] voluntary dismissal of an
    action or proceeding without an adjudication of the cause that would prevent
    the bringing of a new action upon the same cause. . . . An order of dismissal
    of an action reciting that it is without prejudice, the effect of which is to
    prevent the dismissal from operating as a bar to any new suit which the
    plaintiff might thereafter desire to bring on the same cause of action. . . .’’
    Ballentine’s Law Dictionary (3d Ed. 1969). Although this definition can be
    considered ‘‘black letter law,’’ the instant case is an example of a dismissal
    which cannot be resurrected because the immigration court ordered the
    petitioner’s deportation due to his visa overstay and both the Board of
    Immigration Appeals and the Second Circuit dismissed the petitioner’s
    appeal of such deportation.
    3
    We note that the petitioner’s immigration appeal was dismissed by the
    Second Circuit after the habeas court denied petitioner’s certification to
    appeal but before the present appeal. On May 14, 2013, the United States
    Court of Appeals for the Second Circuit dismissed the petitioner’s petition
    for review of the board’s dismissal of his appeal. The court reasoned that
    it lacked jurisdiction to review the petition, as it was ‘‘deposited in the
    internal mailing system of Petitioner’s detention facility more than 30 days
    after the date of the [board’s] decision.’’
    4
    In Aquino, our Supreme Court specifically addressed whether an appeal
    is moot when a litigant is deported during the pendency of his appeal. State
    v. 
    Aquino, supra
    , 
    279 Conn. 293
    . The court held that ‘‘in the absence of
    any evidence that the defendant’s guilty plea was the sole reason for his
    deportation, the defendant’s appeal must be dismissed as moot. The defen-
    dant did not produce any evidence at the hearing on his motion to withdraw
    his guilty plea—indeed, he did not even claim—that he would be deported
    solely as the result of his guilty plea. While this appeal was pending, the
    defendant was deported. There is no evidence in the record as to the reason
    for his deportation. If it was not the result of his guilty plea alone, then this
    court can grant no practical relief and any decision rendered by this court
    would be purely advisory. . . . We conclude, therefore, that the appeal
    must be dismissed on the ground that the defendant has failed to establish
    that his claim is not moot.’’ (Citations omitted; footnotes omitted; internal
    quotation marks omitted.) 
    Id., 298–99; see
    also State v. Chavarro, 130 Conn.
    App. 12, 17–18, 
    21 A.3d 541
    (2011) (court held that defendant’s appeal was
    moot because he ‘‘failed to establish that his deportation was the result of
    his guilty plea alone’’ [internal quotation marks omitted]).
    

Document Info

Docket Number: AC35691

Filed Date: 1/27/2015

Precedential Status: Precedential

Modified Date: 1/21/2015