Olorunfunmi v. Commissioner of Correction ( 2022 )

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IBRAHEEN OLORUNFUNMI v. COMMISSIONER
OF CORRECTION
(AC 44187)
Alexander, Clark and Palmer, Js.
Syllabus
The petitioner, a citizen of Nigeria, sought a writ of habeas corpus, claiming,
inter alia, that his trial counsel, E, rendered ineffective assistance for
having failed to advise him properly about the immigration consequences
of his guilty plea to the reduced charge of larceny in the second degree.
During the trial court’s canvass of the petitioner in the plea proceeding,
the petitioner stated that he understood the possible immigration conse-
quences of his guilty plea and that E had discussed those consequences
with him. E also stated that he had discussed those consequences with
the petitioner. Thereafter, the petitioner was deported to Nigeria on the
ground that the larceny conviction constituted an aggravated felony
under federal law, which mandated deportation for such offenses in
virtually all cases. At the habeas trial, E testified, inter alia, that he
discussed with the petitioner the immigration consequences of his guilty
plea, and the petitioner was not concerned about deportation but, rather,
his sole concern was the term of incarceration he would receive upon
conviction and he sought to minimize his sentence. The petitioner testi-
fied, inter alia, that when he entered the guilty plea, he was unaware
of its immigration consequences and that E had told him that a conviction
for larceny in the second degree would not make him eligible for deporta-
tion. The court rendered judgment denying the habeas petition and
denied the petition for certification to appeal, and the petitioner appealed
to this court. Held that the habeas court correctly denied the petition
for certification to appeal from the denial of the petition for a writ of
habeas corpus, as the petitioner failed to establish that the issues were
debatable among jurists of reason, that a court could resolve the issues
in a different manner, or that they were adequate to proceed further:
there was ample evidence in the record to support the habeas court’s
implicit finding that the petitioner failed to demonstrate that he would
not have pleaded guilty and would have proceeded to trial if he had
been properly informed about his deportability; moreover, the habeas
court deemed E’s testimony highly credible, including his testimony that
the petitioner was concerned only with the length of the sentence he
would receive upon pleading guilty and not the deportation conse-
quences of any such plea and found the petitioner’s testimony contradict-
ing E in virtually all material respects to be entirely unworthy of belief;
furthermore, this court rejected the petitioner’s claim that, because
the habeas court’s evaluation of his credibility was predicated on the
transcript of his deposition testimony and not on a firsthand observation
of his conduct and demeanor, its credibility assessment warranted less
deference, that argument having been unsupported by any authority and
incompatible with the bedrock principle that the habeas court sits as
the trier of fact, the habeas court found the testimony of E more credible
than the petitioner’s, and this court was bound by those credibility
determinations.
Argued November 10, 2021—officially released March 22, 2022
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, Kwak, J.; judgment
denying the petition; thereafter, the court denied the
petition for certification to appeal, and the petitioner
appealed to this court. Appeal dismissed.
J. Patten Brown III, assigned counsel, with whom,
on the brief, was Abby Marchinkoski, for the appellant
(petitioner).
Christopher Alexy, senior assistant state’s attorney,
with whom, on the brief, were Margaret E. Kelley,
state’s attorney, and Jo Anne Sulik, senior assistant
state’s attorney, for the appellee (respondent).
Opinion
PALMER, J. The petitioner, Ibraheen Olorunfunmi,
appeals following the denial of his petition for certifica-
tion to appeal from the judgment of the habeas court
denying his second amended petition for a writ of
habeas corpus. On appeal, the petitioner, a Nigerian
citizen, claims that the habeas court abused its discre-
tion in denying the petition for certification to appeal
because his constitutional right to the effective assis-
tance of counsel was violated due to the failure of his
trial counsel to advise him, as required by Padilla v.
Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d
284 (2010), that a plea of guilty to larceny in the second
degree would almost certainly result in his deportation
to Nigeria, which, in fact, occurred following his plea
to that offense and subsequent sentencing. We conclude
that the petitioner has not demonstrated that the habeas
court abused its discretion in denying the petition for
certification, and, accordingly, we dismiss the appeal.
The memorandum of decision of the habeas court
sets forth the following facts and procedural history
concerning the petitioner’s underlying conviction. ‘‘In
the summer of 2014, the West Haven Police Department
received a complaint from [the] Darien Rowayton Bank
[bank] concerning a possible fraud. [The bank investi-
gated the complaint and] determined that in June of
2014, the bank had received two e-mails from a longtime
customer requesting wire transfers, one dated June 9,
2014, and another dated June 11, 2014. The June 9 trans-
fer was for $23,855, and [the] June 11 . . . transfer was
for $6000. [The bank was] contacted by the . . . actual
customer . . . that he never sent the e-mails or
requested wire transfers. [During its investigation, the
bank] learned . . . that the $23,855 wire transfer was
sent to the TD Bank North from West Haven . . . to
an account in the [petitioner’s] name. There were [sur-
veillance] videos of the [petitioner] making several with-
drawals on days following the transfer. The $6000 trans-
fer went to an account for a business called Palms
Fashion [Inc.] in New York City. On July 4, 2014, the
[petitioner] wanted to pay some of the money back,
$3000 now, with the remainder over time. . . .
‘‘The West Haven Police Department contacted the
[petitioner], who wanted to talk with the police, but
was never able to meet up with them. At that point,
[the petitioner retained] an attorney . . . who con-
tacted the West Haven Police Department. The vice
president of the bank . . . informed the West Haven
Police Department that the problem arose as there was
a slight difference in the correct e-mail address to their
customer and the one that they received for the wire
transfer. They contacted the [petitioner] and suggested
to him that he return the money, which he never did.
The [petitioner] claimed he was expecting a wire trans-
fer, thus, there was confusion on his part. The bank
had paid out $30,000 . . . of the [money involved]. The
customer noted to the West Haven Police Department
that he believes that someone had hacked into his
[account], but he had changed his password and
believes that the hackers had made a slight change in
his e-mail address and attempted [to hack into] not only
that account but other accounts as well. . . .
‘‘The petitioner was initially charged with one count
of larceny in the first degree in violation of General
Statutes § 53a-122.1 On April 22, 2015, the petitioner
and [his counsel, former Public Defender David] Egan,
appeared before the [trial] court, Iannotti, J., for a
change of plea. The plea agreement negotiated with
the state resulted in the petitioner pleading guilty in a
substitute information to one count of larceny in [the]
second degree in violation of General Statutes § 53a-123
(a) (2).2 The prosecutor, Supervisory Assistant State’s
Attorney Cornelius Kelly, indicated to the [trial] court
that because of defense counsel’s efforts, the state was
willing to agree to let the petitioner plead guilty to the
reduced charge of larceny in the second degree [and
to agree to a sentence of three years’ imprisonment].
This offer was only open to the petitioner for that day
and would then be withdrawn. [The prosecutor also
informed the trial court that the petitioner had never
paid back any of the stolen money]. . . .
‘‘The [trial] court canvassed the petitioner about his
guilty plea. The petitioner, who had informed the court
that he was born in Nigeria, was asked if he understood
that if he is not a citizen of the United States that his
conviction had negative deportation and immigration
consequences. Specifically, that he could be deported
or excluded from admission to the United States. The
petitioner acknowledged that he was aware of these
consequences from his discussions with . . . Egan, but
also emphasized that his life was at stake. The [trial]
court asked . . . Egan if he had discussed deportation
with the petitioner. . . . Egan [responded as follows]:
I should put on the record that not only did I discuss
this with my client . . . I [had] occasion to speak to
an immigration attorney who was referred to me by my
client. I spoke to him in Hartford yesterday. We had a
thorough discussion of the situation with respect to,
you know, pleading to—actually, the charge that we
were contemplating pleading to yesterday was the
charge of larceny in the first degree. Now, I was able
to, I believe, convince [the prosecutor] that perhaps we
should get the charge reduced to the charge of larceny
in the second degree, and it was solely in view of the
possible deportation consequences that I suggested that
this matter be reduced to a charge of larceny in the
second degree. I explained to my client that I am not
an immigration attorney, but that, nonetheless, we did
so in the hope that it—that this would lessen the likeli-
hood of his deportation, although, you know, that’s
purely a guess on my part. I’m not an immigration attor-
ney. And clearly, by pleading guilty to these charges,
he is subjecting himself to removal from this country.
That’s all been explained to him. . . .
‘‘The [trial] court indicated to . . . Egan that it did
not want to know the contents of the discussion he had
with the immigration attorney. The [trial] court inquired
if . . . Egan had passed those contents on to the peti-
tioner. . . . Egan answered in the affirmative. . . .
The canvass of the petitioner continued but stopped
when the petitioner requested more time to consider
the plea offer. The [trial] court indicated that the peti-
tioner had months and months to consider resolving
the case and that the state’s offer, now for a lesser
offense, was available only that day. . . . The peti-
tioner could either accept the plea offer or proceed to
trial on the charge of larceny in the first degree [which,
the trial court emphasized, carries a maximum possible
penalty of twenty years’ imprisonment as distinguished
from larceny in the second degree, which carries a
maximum possible penalty of ten years’ imprisonment].
Although the petitioner at first indicated that he wanted
to have a trial, he instead accepted the plea offer. . . .
The [trial] court accepted the guilty plea and found that
it was knowing, voluntary, and made with the assistance
of competent counsel. . . . The matter was continued
for the sentencing. . . .
‘‘On July 21, 2015, the petitioner and . . . Egan
appeared before Judge Iannotti for the sentencing. . . .
Egan noted that the case was extensively pretried . . .
[that] [t]he [trial] court [was] familiar with the back-
ground [of this case] and [that he had] explained to
[the petitioner] many, many times that his biggest prob-
lem . . . [was] not necessarily with the disposition that
[was] about to be imposed by [the trial] court, but . . .
[was] with the immigration authorities. . . . The peti-
tioner addressed the [trial] court and asked that it
impose a lower sentence than he had agreed to accept
when he pleaded guilty. . . . Given the severity of the
offense, the [trial] court imposed the agreed upon sen-
tence of three years to serve, followed by three years
of special parole, because it was fair and just. . . . The
[trial] court also ordered the special conditions that the
petitioner obtain gainful and verifiable employment, as
well as [pay] restitution of $23,855 to the . . . [b]ank.’’
(Emphasis omitted; footnotes added; internal quotation
marks omitted.)
Although he did not file a direct appeal from the
judgment of conviction that followed his guilty plea
and sentencing, in August, 2015, the self-represented
petitioner filed a petition for a writ of habeas corpus
seeking to have his conviction vacated, and in June,
2016, through counsel, he filed an amended habeas peti-
tion. Thereafter, in March, 2017, the petitioner was
deported to Nigeria. Subsequently, on January 11, 2018,
the petitioner, again through counsel, filed a second
amended habeas petition seeking similar relief and
alleging ineffective assistance of counsel predicated on
the claim that his trial counsel, Egan, had failed to
advise him adequately regarding the deportation conse-
quences of his guilty plea to larceny in the second
degree,3 an offense deemed an ‘‘aggravated felony’’
under the federal Immigration and Nationality Act, 8
U.S.C. § 1101 et seq., which mandates deportation for
such offenses in virtually all cases.4
At the habeas trial, the petitioner adduced testimony
from several witnesses, including Egan, who testified
that the petitioner’s criminal case was relatively uncom-
plicated but that he had had great difficulty obtaining
information from the petitioner for the purpose of
investigating and presenting a possible defense because
the petitioner was evasive and not forthcoming with
regard to such information. According to Egan, he and
the petitioner met regularly and frequently, and the
petitioner’s sole concern with respect to the case was
the term of incarceration he would receive upon convic-
tion. To that end, Egan further explained, the petitioner
accepted the state’s offer of a guilty plea to larceny in
the second degree with an agreed upon sentence of
three years’ imprisonment because that plea bargain
resulted in a significant reduction in the amount of
prison time the petitioner likely would be required to
serve were he to be convicted of larceny in the first
degree following a trial.
Egan also testified that the petitioner was aware of
the deportation and immigration ramifications of his
case from the very beginning and, in fact, in a letter to
the petitioner dated December 3, 2014, Egan stated that,
‘‘as I told you today, the crime with [which] you are
charged [larceny in the first degree] will almost cer-
tainly result in your deportation upon conviction.’’5 In
his testimony, Egan explained that he also subsequently
advised the petitioner that he would be deported from
the United States as a result of a guilty plea to larceny
in the second degree, and although Egan could not
recall the exact language he used in so advising the
petitioner, Egan stated, ‘‘ ‘I told him . . . that he was
going to be exposing himself, and in all likelihood would
be deported, should he plead [guilty] to the charge of
larceny in the second degree.’ ’’ Egan also testified that
a few weeks before the plea was entered in court, the
petitioner informed Egan that he had written to his
immigration attorney, Justin Conlon, and the petitioner
asked Egan to speak to Conlon, which Egan did. A few
weeks after entering his guilty plea, the petitioner wrote
to Egan and told him, among other things, that he
wanted to seek asylum in the United States. Thereafter,
shortly before sentencing, the petitioner contacted
Egan and asked him to do everything in his power to
convince Judge Iannotti to impose a two year sentence
rather than a three year sentence.6
The petitioner also presented testimony from Conlon,
who explained that, under applicable federal law, lar-
ceny in the second degree is considered an aggravated
felony, the highest category of criminal conviction for
removal purposes and one for which deportation is
virtually inevitable. As such, Conlon further testified,
the petitioner’s deportation was ‘‘very foreseeable’’
because exceptions to removal upon conviction of an
aggravated felony are extremely limited.
The petitioner testified, as well. Because he had been
deported prior to his habeas trial, the petitioner’s testi-
mony was presented by way of a transcript of his tele-
phonic deposition. With respect to the larceny charge
to which he had pleaded guilty, the petitioner provided
the habeas court with a version of the facts that effec-
tively exonerated him from any criminal culpability.7
As the habeas court explained, ‘‘[t]he petitioner [also]
testified that his understanding was that he could only
be deported if he were convicted of larceny in the first
degree. Furthermore, the petitioner testified that [Egan]
told him that a conviction for larceny in the second
degree would not make him eligible for deportation,
and that this was the only reason that he agreed to
plead guilty. The petitioner denied that his counsel
explained to him that an aggravated felony would
almost certainly result in his deportation. The petitioner
stated that he would have proceeded to trial had he
understood that not being convicted at trial was his
best chance of his not being deported. The petitioner
denied telling the bank official that he had used the
[stolen] funds to pay bills. The petitioner did not recall
telling the police and bank officials that his account
must have been hacked. Lastly, the petitioner testified
that before [his] guilty plea . . . Egan wanted to speak
with his immigration attorney, after which . . . Egan
told the petitioner that larceny in the second degree is
not a deportable offense.’’
In its memorandum of decision following the trial,
the habeas court rejected the petitioner’s claims and
denied his second amended habeas petition. The court
characterized Egan’s testimony as ‘‘highly credible’’ and
found that Egan had ‘‘explained the deportation and
immigration consequences to the petitioner,’’ that Egan
‘‘was adamant that the petitioner faced deportation,’’
and that he had ‘‘informed [the petitioner] at the very
onset . . . that deportation was almost certain . . . .’’
The court further found that, ‘‘[a]lthough the larceny
in the first degree charge was reduced to larceny in the
second degree in the hope of reducing the chance of
deportation, the petitioner was warned that he was
subjecting himself to removal from the United States’’
and ultimately accepted the offer of a plea to the lesser
charge ‘‘after he was advised regarding the possible
consequences of going to trial on the more severe
charge.’’ The court also found that, as reflected in the
transcript of the plea proceeding, ‘‘[i]t is readily appar-
ent that the petitioner was only concerned about the
length of his term of incarceration’’ and that, in light
of the fact that he was aware of the deportation conse-
quences of his plea, ‘‘the petitioner’s focus thereafter
on how much time to spend in prison is both logical
and reasonable.’’
In contrast to Egan’s testimony, the habeas court
discredited the testimony of the petitioner. Specifically,
the court stated: ‘‘The petitioner, contrary to . . .
Egan, lacks all credibility and his relationship with the
truth is fleeting and transactional. The court does not
credit the petitioner’s testimony in support of his
claims. The petitioner’s description of the people and
underlying events that led to his charges, which were
not provided to . . . Egan during the course of his
representation, is not credible. The correspondences
between the petitioner and . . . Egan reflect a pattern
of feigned ignorance by the petitioner, which this court
finds is indicative of deception rather than a lack of
understanding. The petitioner’s repeated assertions,
made after court proceedings, that he did not under-
stand or expected something other than what occurred
are not believable. The court also does not find credible
the petitioner’s . . . assertion that . . . Egan failed to
explain [the] deportation and immigration conse-
quences to him, as well as that [Egan] told the petitioner
after consulting with the immigration attorney that lar-
ceny in the second degree is not a deportable offense.
This lack of credibility is also reflected in a transcript
of [the] immigration proceedings. The petitioner told
the immigration judge that . . . Egan lied to him and
told him that he was pleading [guilty] to larceny in the
fourth degree, as well as that he would not be deported
if he pleaded [guilty] to larceny in the second degree.
Lastly, the court also does not find credible the petition-
er’s assertion that he would have maintained his plea
of not guilty and proceeded to trial [had he known that
he would be deported as a result of his guilty plea to
larceny in the second degree].’’ (Emphasis in original.)
The petitioner thereafter filed a petition for certifica-
tion to appeal from the habeas court’s denial of his
petition for a writ of habeas corpus. The habeas court
denied the petition for certification to appeal, and this
appeal followed. The petitioner contends that the court
should have granted his petition for certification to
appeal because he established that Egan’s advice to
him about the deportation consequences of his guilty
plea to larceny in the second degree was deficient under
the sixth and fourteenth amendments to the United
States constitution and article first, §§ 8 and 9, of the
state constitution.8 The petitioner further maintains that
he would not have entered the plea and would have
proceeded to trial if Egan had advised him adequately
about those consequences. Even if we assume,
arguendo, that Egan’s advice in that regard was consti-
tutionally infirm, we conclude that the petitioner cannot
prevail on appeal because he has failed to demonstrate
that, with different advice, he would have rejected the
state’s plea offer and opted for a trial instead.
We commence our review of the petitioner’s claim
by reciting the governing legal principles. ‘‘Faced with
a habeas court’s denial of a petition for certification to
appeal, a petitioner can obtain appellate review of the
[denial] of his petition for habeas corpus only by satis-
fying the two-pronged test enunciated by our Supreme
Court in Simms v. Warden, 229 Conn. 178, 640 A.2d
601 (1994), and adopted in Simms v. Warden, 230 Conn.
608, 612, 646 A.2d 126 (1994). First, [the petitioner]
must demonstrate that the denial of his petition for
certification constituted an abuse of discretion. . . .
Second, if the petitioner can show an abuse of discre-
tion, he must then prove that the decision of the habeas
court should be reversed on the merits. . . . To prove
that the denial of his petition for certification to appeal
constituted an abuse of discretion, the petitioner must
demonstrate that the [resolution of the underlying claim
involves issues that] 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. . . . In
determining whether the habeas court abused its discre-
tion in denying the petitioner’s request for certification,
we necessarily must consider the merits of the petition-
er’s underlying claims to determine whether the habeas
court reasonably determined that the petitioner’s
appeal was frivolous. In other words, we review the
petitioner’s substantive claims for the purpose of ascer-
taining whether those claims satisfy one or more of the
three criteria . . . adopted by [our Supreme Court] for
determining the propriety of the habeas court’s denial of
the petition for certification.’’ (Internal quotation marks
omitted.) Noze v. Commissioner of Correction, 177
Conn. App. 874, 882, 173 A.3d 525 (2017).
The principles applicable to the petitioner’s claim
of ineffective assistance of counsel are similarly well
settled. ‘‘A criminal defendant is constitutionally enti-
tled to adequate and effective assistance of counsel at
all critical stages of criminal proceedings [including
those related to the entering of a guilty plea]. . . . This
right arises under the sixth and fourteenth amendments
to the United States constitution and article first, § 8,
of the Connecticut constitution. . . . It is axiomatic
that the right to counsel is the right to the effective
assistance of counsel.’’ (Footnote omitted; internal quo-
tation marks omitted.) Id., 883–84; see id., 884 n.3.
Claims of constitutionally inadequate representation in
connection with the decision to plead guilty are gov-
erned by Strickland v. Washington, 466 U.S. 668, 687,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and Hill v.
Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 88 L. Ed. 2d
203 (1985). ‘‘[According to] Strickland, [an ineffective
assistance of counsel] claim must be supported by evi-
dence establishing that (1) counsel’s representation fell
below an objective standard of reasonableness, 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. . . .
Under . . . Hill . . . which . . . modified the preju-
dice prong of the Strickland test for claims of ineffec-
tive assistance [of counsel] when the conviction
resulted from a guilty plea, the evidence must demon-
strate 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.
. . . 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.’’ (Emphasis in original; internal quotation
marks omitted.) Cruz v. Commissioner of Correction,
206 Conn. App. 17, 24, 257 A.3d 399, cert. denied, 340
Conn. 913, 265 A.3d 926 (2021). ‘‘[A] court need not
determine whether counsel’s performance was defi-
cient before examining the prejudice suffered by the
[petitioner] as a result of the alleged deficiencies. . . .
If it is [more efficient] to dispose of an ineffectiveness
claim on the ground of lack of sufficient prejudice . . .
that course should be followed.’’ (Internal quotation
marks omitted.) Id., 25. Moreover, ‘‘[t]he habeas judge,
as the trier of facts, is the sole arbiter of the credibility
of witnesses and the weight to be given to their testi-
mony. . . . [T]his court cannot disturb the underlying
facts found by the habeas court unless they are clearly
erroneous . . . . The application of the habeas court’s
factual findings to the pertinent legal standard, how-
ever, presents a mixed question of law and fact, which
is subject to plenary review.’’ (Internal quotation marks
omitted.) Id., 24–25.
‘‘A claim of ineffective assistance of counsel raised
by a petitioner who faces mandatory deportation as a
consequence of his guilty plea is analyzed more particu-
larly under Padilla v. Kentucky, [supra, 559 U.S. 356],
a case in which the United States Supreme Court held
that counsel must inform clients accurately as to
whether a guilty plea carries a risk of deportation. Id.,368–69. Padilla recently was analyzed under Connecti-
cut law in Budziszewski v. Commissioner of Correc-
tion, 322 Conn. 504, 507, 142 A.3d 243 (2016), where[in]
our Supreme Court concluded that, although there are
no precise terms or one-size-fits-all phrases that counsel
must use . . . [i]n circumstances when federal law
mandates deportation . . . counsel must unequivo-
cally convey to the client that federal law mandates
deportation as the consequence for pleading guilty.’’
(Internal quotation marks omitted.) Noze v. Commis-
sioner of Correction, supra, 177 Conn. App. 885.
The petitioner contends, contrary to the determina-
tion of the habeas court, that Egan failed to advise him,
as required by Padilla, that deportation was virtually
certain if he pleaded guilty to larceny in the second
degree. He further claims that he would not have
entered a plea of guilty to that offense and insisted on
a trial if he had been advised that he faced a high
likelihood of deportation following a plea to second
degree larceny. We need not decide whether Egan’s
advice to the petitioner in regard to his deportability
was constitutionally adequate because we conclude
that, even if that advice was deficient, the petitioner has
failed to demonstrate that he was prejudiced thereby.
‘‘To satisfy the prejudice prong [of the Strickland-
Hill test], the petitioner had the burden to prove that,
absent counsel’s alleged failure to advise him in accor-
dance with Padilla, it is reasonably probable that he
would have rejected the state’s plea offer and elected
to go to trial.’’ Id., 886. This requirement presents a
significant hurdle for the petitioner. As the United
States Supreme Court recently explained in the context
of a claim of ineffective assistance of counsel which,
like the present one, was predicated on an alleged Padi-
lla violation, ‘‘[s]urmounting Strickland’s high bar is
never an easy task . . . and the strong societal interest
in finality has special force with respect to convictions
based on guilty pleas. . . . [Therefore] [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 substanti-
ate a defendant’s expressed preferences.’’ (Citations
omitted; internal quotation marks omitted.) Lee v.
United States, U.S. , 137 S. Ct. 1958, 1967, 198 L.
Ed. 2d 476 (2017); see also Budziszewski v. Connecticut
Judicial Branch, 199 Conn. App. 518, 525–27, 530, 237
A.3d 792, cert. denied, 335 Conn. 965, 240 A.3d 283(2020).
Although the habeas court based its decision on the
performance prong of Strickland—concluding that the
advice Egan gave to the petitioner with respect to depor-
tation satisfied the Padilla standard—and did not
expressly address the prejudice prong of the Strickland-
Hill test, the court did explicitly reject, as lacking in
credibility, the petitioner’s testimony that he would not
have pleaded guilty to second degree larceny and,
instead, would have proceeded to trial if he had known
that a conviction of that offense was highly likely to
result in his deportation. This credibility determination
of the court leads inexorably to the conclusion that the
court implicitly found that the petitioner failed to meet
his burden of establishing that he was prejudiced by
Egan’s allegedly deficient advice with respect to the
deportation consequences of his guilty plea because to
prove prejudice, the petitioner was required to demon-
strate a reasonable probability that he agreed to plead
guilty only because he was unaware that he would be
deported as a result of the plea.
The habeas court’s implicit finding that the petitioner
failed to demonstrate that he would not have pleaded
guilty and would have proceeded to trial if he had been
properly informed about his deportability is amply sup-
ported by the record. First, the court had strong reason
to disbelieve the petitioner’s testimony generally. For
example, having determined that Egan was a highly
credible witness, the court reasonably found that the
petitioner’s testimony contradicting Egan’s testimony
in virtually all material respects was entirely unworthy
of belief. Indeed, several of the petitioner’s assertions
were facially implausible, among them: his testimony
essentially denying any responsibility for the theft of
the money at issue in the case despite the strength of
the state’s evidence against him; his claim that Egan
told him that larceny in the second degree was not a
deportable offense notwithstanding Egan’s statement,
reflected in the record of the plea proceeding, that,
by entering a guilty plea to that charge, the petitioner
‘‘clearly . . . [was] subjecting himself to removal from
this country’’; (emphasis omitted; internal quotation
marks omitted); and his contention before the federal
immigration judge that Egan had lied and told him that
he was pleading guilty to larceny in the fourth degree
rather than to larceny in the second degree even though
it is perfectly clear from the transcript of the plea pro-
ceeding that the petitioner pleaded guilty to second
degree larceny and knew full well that he was doing so.
Moreover, Egan testified that the petitioner’s sole
concern was the length of the sentence he would receive
upon pleading guilty in accordance with the state’s plea
offer and not the deportation consequences of any such
plea. In light of this testimony, along with Egan’s asser-
tion that the petitioner pleaded guilty to larceny in the
second degree to avoid the considerably harsher conse-
quences of being convicted of larceny in the first degree,
the court was fully entitled to disbelieve the petitioner’s
contention that he would not have agreed to that plea
if he had known that doing so carried with it such a
high risk of deportation.
Finally, the petitioner adduced no evidence, other
than his own uncorroborated and self-serving testi-
mony, to support his assertion that, when he entered
his guilty plea, he did so only because he understood
that he would not be subject to deportation. It is true,
of course, that, prior to entering his plea, the petitioner
contacted Egan and asked him to speak with his immi-
gration attorney, Conlon. That demonstrates, however,
only that the petitioner wanted to know about his pros-
pects for deportation following a conviction of larceny
in the second degree, not that he would have refused
to enter the plea if he had understood that it almost
surely would lead to his removal. In addition, the peti-
tioner informed Egan prior to his sentencing that he
planned to apply for asylum in the United States. The
petitioner’s expressed intent to seek asylum does not
further his claim that he pleaded guilty with the under-
standing that he would not be deported; in fact, it under-
mines his claim because asylum is available to those
who are subject to removal from this country but who
can establish that deportation would be sufficiently per-
ilous to warrant their remaining here.
On appeal, the petitioner points to evidence that he
presented at the habeas trial which, he claims, supports
his assertion that he would have rejected the plea deal
and proceeded to trial if he had known that he would
be deported. In particular, he adduced evidence that
he ‘‘faced a serious risk of experiencing violence and
persecution’’ in Nigeria, even from his own family, as
a member of the LGBTQ community and because of his
conversion to Christianity. The petitioner’s contention
however, predicated on such evidence, represents pre-
cisely the kind of ‘‘post hoc assertion’’ that the United
States Supreme Court, in Lee v. United States, supra,
137 S. Ct. 1967, identified as insufficient to establish
prejudice for purposes of an alleged Padilla violation.
Under Lee, a defendant who maintains that he would
have refused to plead guilty if he had been advised
properly about the near certainty of deportation must
substantiate his contention with evidence contempora-
neous with his plea and sentencing. Id. In the present
case, the petitioner presented no such proof, and his
failure to do so, especially in view of Egan’s testimony
that the petitioner was concerned only with the amount
of prison time that he would receive, is fatal to his claim
of prejudice.
The petitioner further argues that, because the
habeas court’s evaluation of the petitioner’s credibility
was predicated on a ‘‘cold’’ record, namely, the tran-
script of the petitioner’s deposition testimony, rather
than on a firsthand observation of the petitioner’s con-
duct and demeanor, a ‘‘significantly lower . . . level
of deference’’ to the court’s credibility assessment is
warranted than the deference to which such an evalua-
tion ordinarily would be entitled. We reject this argu-
ment as unsupported by any authority and incompatible
with the bedrock principle that fact-finding is the sole
responsibility of our trial courts. See State v. Correa, 340
Conn. 619, 691, 264 A.3d 894 (2021) (appellate tribunal
‘‘lacks the authority to find facts’’); Otto v. Commis-
sioner of Correction, 161 Conn. App. 210, 223, 136 A.3d
14 (2015) (‘‘[i]t is axiomatic that, as an appellate court,
we do not reevaluate the credibility of testimony’’),
cert. denied, 321 Conn. 904, 138 A.3d 281 (2016). In the
present case, moreover, the court expressly credited
Egan’s testimony, which the petitioner contradicted in
many, if not all, material respects. The court, having
had the opportunity to observe firsthand Egan’s ‘‘highly
credible’’ testimony, had a sound basis for rejecting the
petitioner’s version of the relevant events. Indeed, as
we have explained, some of the petitioner’s testimony
defied credulity in light of the undisputed facts. In such
circumstances, there is no basis whatsoever for second-
guessing any of the court’s credibility findings.9
We conclude, therefore, that the petitioner has failed
to establish that his ineffective assistance of counsel
claim is debatable among jurists of reason, that a court
could resolve the claim in a different manner or that the
question presented deserves encouragement to proceed
further. Accordingly, the habeas court did not abuse
its discretion in denying the petition for certification
to appeal.
The appeal is dismissed.
In this opinion the other judges concurred.
1
General Statutes § 53a-122 (a) provides in relevant part: ‘‘A person is
guilty of larceny in the first degree when he commits larceny, as defined
in section 53a-119, and . . . . (2) the value of the property or service
exceeds twenty thousand dollars . . . .’’
Larceny in the first degree is a class B felony that carries with it a possible
maximum penalty of twenty years’ imprisonment. See General Statutes
§§ 53a-122 (c) and 53a-35a (6).
2
General Statutes § 53a-123 (a) provides in relevant part: ‘‘A person is
guilty of larceny in the second degree when he commits larceny, as defined
in section 53a-119, and . . . (2) the value of the property or service exceeds
ten thousand dollars . . . .’’
Larceny in the second degree is a class C felony that carries with it a
maximum penalty of ten years’ imprisonment. See General Statutes §§ 53a-
123 (c) and 53a-35a (7).
3
The petitioner also raised a due process claim alleging that his guilty
plea was not made knowingly, intelligently and voluntarily because he did
not adequately understand the deportation consequences of his plea. That
claim, however, which the habeas court ultimately deemed abandoned, is
not at issue in this appeal. Nevertheless, as the habeas court observed, both
the evidence necessary to establish that abandoned claim and the relief
sought thereunder are the same as the evidence adduced and the relief
sought in connection with the claim that is the subject of this appeal.
4
See, e.g., Budziszewski v. Commissioner of Correction, 322 Conn. 504,
507, 142 A.3d 243 (2016) (explaining that ‘‘[f]or crimes designated as aggra-
vated felonies . . . federal law mandates deportation almost without excep-
tion’’). We note that the petitioner was deportable both for his conviction
of larceny in the second degree and for overstaying his work visa, which
had expired. The habeas court determined, and the parties do not dispute,
that this appeal could result in meaningful relief to the petitioner, despite
his deportability for overstaying his visa, because his larceny conviction
results in the petitioner being barred from readmission to the United States
for twenty years, whereas overstaying his work visa results in a ten year
bar to readmission.
5
Egan also testified that he had represented between twenty-five and
thirty defendants who faced deportation and immigration consequences as
a result of their offenses, that he had attended a series of seminars on the
subject and was familiar with the relevant case law and that he often dis-
cussed cases involving immigration issues with other experienced criminal
defense attorneys.
6
The letters that Egan and the petitioner exchanged both before and after
his guilty plea and sentencing also addressed several other topics, including
the computation of the petitioner’s sentence, the presentence investigation
report and restitution.
7
The habeas court summarized the petitioner’s version of those facts as
follows: ‘‘The petitioner provided information about various individuals and
events that explained how the victim’s funds came into his possession.
According to the petitioner, he was contacted by a friend in Nigeria. That
friend, in turn, gave [the phone number of his friend] (an individual identified
by the petitioner as ‘CJ’) . . . to the petitioner, who did not know this
individual. The petitioner was told to open an account so that he could
receive funds from CJ’s clients in the United States. The petitioner stated
that the business being conducted, for which this account was needed to
receive funds, was the import/export of automobiles. The victim’s funds
were transferred into the petitioner’s account, and the petitioner on three
occasions withdrew separately $6000, $3000 and $2000. The petitioner testi-
fied that CJ told the petitioner to give $20,000 he had withdrawn to yet
another friend, one Johnson Adewale, who stayed in New York but came
to New Haven to get the money.’’
8
We note that the petitioner does not contend that the state constitution
affords him any greater protection with respect to his right to the effective
assistance of counsel than does the federal constitution.
9
The petitioner also raised the claim in the habeas court that Egan ren-
dered ineffective assistance by inadequately investigating his case and
thereby failing to develop a viable defense. The petitioner did not prevail
on this claim, which he renews on appeal, albeit in a single paragraph of
his brief in which he fails to cite any authority to support his allegation.
The petitioner adduced no expert testimony in the habeas court with respect
to this claim and, on appeal, he essentially contends that Egan could have
done more by way of an investigation. Suffice it to say that, on appeal, the
petitioner has failed to demonstrate why Egan’s representation was deficient
in this regard or how the petitioner was prejudiced by Egan’s allegedly
inadequate investigation.