Noze v. Commissioner of Correction ( 2017 )

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MACKENZY NOZE v. COMMISSIONER
OF CORRECTION
(AC 39233)
Alvord, Sheldon and Mullins, Js.*
Syllabus
The petitioner, a citizen of Haiti, sought a writ of habeas corpus, claiming
that his trial counsel had provided ineffective assistance by failing to
advise him adequately as to the immigration consequences of his plea
of guilty to a certain drug related offense that subjected him to mandatory
deportation. The petitioner initially was charged with offenses that
exposed him to sixty years imprisonment before he pleaded guilty and
received a lesser sentence under a plea agreement offered by the state.
The habeas court rendered judgment denying the habeas petition and,
thereafter, denied the petition for certification to appeal, and the peti-
tioner appealed to this court. Held that the habeas court did not abuse
its discretion in denying the petition for certification to appeal: that
court properly determined that the petitioner failed to demonstrate that
he was prejudiced by his trial counsel’s allegedly deficient performance,
the petitioner having failed to show that, absent counsel’s failure to
adequately inform him regarding the immigration consequences of his
plea, it was reasonably probable that he would have rejected the plea
agreement and insisted on going to trial; moreover, the habeas court’s
finding that the petitioner was well aware that his conviction of the initial
charges was virtually inevitable and that deportation was realistically
unavoidable was not clearly erroneous, as the court was free to credit
his trial counsel’s testimony that the petitioner was not concerned about
the immigration consequences of the plea and wanted to receive the
shortest possible period of incarceration, which he accomplished by
accepting the plea agreement, and to reject the petitioner’s testimony
that he would have rejected the proposed plea agreement and gone to
trial had he been advised adequately.
Argued September 11—officially released November 7, 2017
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, Sferrazza, J.; judgment
denying the petition; thereafter, the court denied the
petition for certification to appeal, and the petitioner
appealed to this court. Appeal dismissed.
Daniel Fernandes Lage, assigned counsel, for the
appellant (petitioner).
James M. Ralls, assistant state’s attorney, with
whom, on the brief, were Michael L. Regan, state’s
attorney, and Thomas M. DeLillo, senior assistant
state’s attorney, for the appellee (respondent).
Opinion
SHELDON, J. The petitioner, Mackenzy Noze, a citi-
zen of Haiti, appeals following the denial of his petition
for certification to appeal from the judgment of the
habeas court denying his petition for a writ of habeas
corpus. In his amended petition, the petitioner claimed
that his right to the effective assistance of counsel under
the sixth and fourteenth amendments to the United
States constitution was violated by trial counsel’s fail-
ure to warn him, clearly and unequivocally, of the man-
datory deportation consequences of his guilty plea to
the charge of possession of narcotics with intent to sell
in violation of General Statutes § 21a-277 (a). Before
this court, the petitioner claims that the habeas court
erred in denying his claim of ineffective assistance of
counsel and later abused its discretion in denying his
petition for certification to appeal from that denial.
We conclude that the habeas court did not abuse its
discretion in denying the petition for certification to
appeal from its judgment, and thus we dismiss this
appeal.
The record reveals the following relevant facts and
procedural history. The petitioner initially was charged
with three counts of sale of crack cocaine in violation
of General Statutes § 21a-278 (b), each of which carried
a maximum possible prison sentence of twenty years
incarceration.1 On July 24, 2012, the petitioner appeared
before the court, Kwak, J., accompanied by his private
counsel, Ryan P. Barry of Barry & Barall, LLC, and
pleaded guilty, pursuant to a plea agreement, to a substi-
tute information charging him with one count of posses-
sion of narcotics with intent to sell in violation of § 21a-
277 (a), a lesser offense that carried a maximum possi-
ble prison sentence of fifteen years incarceration.
Under the terms of the plea agreement, the state agreed
to recommend a sentence of seven years incarceration,
execution suspended after twenty months, followed by
two years probation on terms and conditions to be
determined by the court after the preparation of a pre-
sentence investigation report, with the petitioner
reserving the right to argue for a lesser sentence.
Although there was an indication on the record that
the court’s likely sentence in the event of a guilty plea
had been discussed in chambers before the petitioner
entered his plea, the particulars of that likely sentence
were not recited for the record.
At the plea proceeding, the prosecutor stated the
following factual basis for the record. On or about Octo-
ber 21, 2011, within the city of Norwich, the petitioner
sold a small amount of a white substance to a confiden-
tial police informant in return for recorded funds. The
confidential informant turned the substance over to
the police, who submitted a portion of it for chemical
testing. The substance tested positive for cocaine. The
petitioner later was arrested on a warrant and charged
with three counts of sale of narcotics.
The court then canvassed the petitioner in detail
about the nature and consequences of his plea. At the
end of its canvass, the court inquired of the petitioner
as follows as to his general awareness that, if he were
not a United States citizen, his plea could have certain
adverse immigration consequences:
‘‘The Court: If you’re not a [United States] citizen,
with this conviction you may face consequences of
deportation, exclusion from readmission or denial of
naturalization. You understand that, sir? You have to
answer verbally so we can hear you.
‘‘[The Petitioner]: No.
‘‘The Court: Okay. Let me ask that question again. If
you’re not a [United States] citizen, with this conviction
you may face consequences of deportation, exclusion
from readmission or denial of naturalization. You under-
stand that, sir? Do you understand the question?
‘‘[The Petitioner]: Yes, I do.
‘‘The Court: Okay. You understand that, right, it could
have consequences if you’re not a [United States] citi-
zen; yes?
‘‘[The Petitioner]: Yes.
‘‘Attorney Barry: Your Honor, we’ve talked about this
before. My notes reflect that, and [I’ve] reviewed them
again this morning. I’m not an immigration lawyer; I
advised him to consult with an immigration attorney.
‘‘The Court: Okay.’’
The court accepted the petitioner’s plea after finding,
inter alia, that there was a factual basis for his plea and
that the plea had been made ‘‘voluntarily and know-
ingly,’’ with the assistance of competent counsel.
On October 3, 2012, after the presentence investiga-
tion report was completed, the petitioner appeared
before a different judicial authority, McMahon, J.,
accompanied by Attorney Michael J. Dyer of Barry &
Barall, LLC. The court sentenced the petitioner on that
date, after a conversation between all counsel and with
Judge McMahon in chambers, to four years incarcera-
tion, execution suspended after one year, followed by
two years probation.
On June 2, 2014, after he had completed the nonsus-
pended portion of his sentence, the petitioner was
detained by immigration authorities. Then, as now, he
was subject to mandatory deportation as a result of
his guilty plea because the offense of possession of
narcotics with intent to sell is an ‘‘aggravated felony’’
under federal law.2
On June 30, 2014, the petitioner filed his original
petition for a writ of habeas corpus in this case. He
later filed an amended petition on December 12, 2014.
The amended petition contained one count, alleging
that the petitioner’s private counsel, Attorney Barry,
had not advised him adequately before his plea that a
conviction of the offense to which he was pleading
guilty would result in his mandatory deportation to
Haiti. The petitioner contended that such inadequate
advice violated his constitutional right to the effective
assistance of counsel.
The habeas court conducted a trial on the merits of
the amended petition on October 27, 2015. In addition to
his own testimony, the petitioner presented testimony
from Barry and Attorney Anthony Collins, an expert on
immigration law. The respondent, the Commissioner of
Correction, presented no evidence at the habeas trial.
At the habeas trial, the petitioner testified that Barry
never told him that his guilty plea would cause him to
be deported. He claimed that he would have gone to
trial on the original charges against him, instead of
pleading guilty, had he known that his guilty plea would
cause him to be deported. When questioned as to
whether Barry had discussed with him the strength of
the state’s case against him, the petitioner first denied
that any such conversation had taken place. Instead, he
testified that Barry had told him that the plea agreement
was a good deal and that he previously had represented
other clients charged with the same offense who had
not been detained by immigration authorities after they
pleaded guilty and were sentenced. When asked
whether Barry had attempted to set up an appointment
for him with an immigration attorney, and whether he
had rejected such a meeting after telling Barry that he
was not worried about deportation, but instead wanted
to take the good deal that had been offered to him,
the petitioner denied both that any appointment with
immigration counsel ever had been arranged for him
and that he ever had told Barry that he was not con-
cerned about deportation.
Barry testified that he had discussed the immigration
consequences of pleading guilty in every conversation
he had had with the petitioner concerning his case. He
stated that the petitioner had told him that he was not
worried about immigration and just wanted to get the
best plea deal that Barry could negotiate for him. Barry
recalled telling the petitioner in one conversation that
he should not go to trial because, if he were convicted,
he could receive a total prison sentence of sixty years
incarceration, and thus could be stuck in prison for a
long time before being sent out of the country. He also
told the petitioner that it would be difficult for him to
remain in the United States because the state’s evidence
against him was very strong. Indeed, he recalled telling
the petitioner that the state had him ‘‘dead to rights on
[his three original charges of] sales [of cocaine].’’ Barry
further testified that he had called two immigration
attorneys and e-mailed one of them, asking that attorney
to meet with the petitioner, but that the petitioner had
not met with any immigration attorney, stating that he
did not need such a meeting. Barry stated that he never
had any indication from the prosecutor that the peti-
tioner might ever receive a better plea offer than the
one he received and thus that the petitioner’s only
options were to plead guilty to a single count of posses-
sion of narcotics with intent to sell under § 21a-277 (a)
under the agreement he negotiated or to go to trial on
the three original sales charges under § 21a-278 (b).
On April 20, 2016, the court issued a memorandum
of decision denying the petition for a writ of habeas
corpus. In the decision, the court found credible Barry’s
testimony that he had discussed the high probability of
deportation with the petitioner, and that he had urged
the petitioner to seek advice from an immigration law-
yer and personally arranged an appointment with such
a lawyer for him. The court also credited Barry’s testi-
mony that the petitioner had not been concerned about
being deported. On that score, the court found that the
petitioner’s primary goal in seeking a plea bargain was
to obtain the shortest possible prison sentence, and
that he accomplished this goal by accepting a guilty
plea that resulted in a total effective sentence of one
year of confinement. The court expressly rejected the
petitioner’s testimony that his counsel never had
informed him that his guilty plea would result in his
mandatory deportation and his claim that, had he under-
stood that deportation would be the mandatory conse-
quence of his plea, he would have rejected the proposed
plea bargain and gone to trial.
Rather than analyzing whether Barry’s previously
described performance was deficient under prevailing
federal and state constitutional standards, the court
focused its analysis on whether the petitioner had estab-
lished that he was prejudiced by his counsel’s allegedly
deficient performance. The court concluded that the
petitioner had not satisfied his burden of proving preju-
dice, finding in relevant part: ‘‘Given the overwhelming
evidence against him, the petitioner was well aware
that conviction for [the] sale of cocaine was virtually
inevitable. He consistently dismissed Attorney Barry’s
admonitions regarding deportation as playing a minimal
role in his decision to accept the negotiated plea
agreement. This decision was eminently reasonable
because deportation was realistically unavoidable. A
lighter sentence became of paramount concern. So
much so, that the petitioner found that showing up for
[the] appointment with an immigration lawyer, which
Attorney Barry arranged for him, was unnecessary. The
court concludes that the petitioner’s habeas testimony
to the contrary is unworthy of belief and is the product
of his desire to avoid paying the piper.’’
After the habeas court issued its memorandum of
decision, the petitioner petitioned for certification to
appeal. On May 3, 2016, the habeas court denied the
petition for certification. This appeal followed.
I
The petitioner claims that the habeas court abused
its discretion in denying his petition for certification to
appeal from the denial of his petition for a writ of habeas
corpus on his claim of ineffective assistance of counsel.
‘‘Faced with a habeas court’s denial of a petition for
certification to appeal, a petitioner can obtain appellate
review of the dismissal of his petition for habeas corpus
only by satisfying 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 the denial of his peti-
tion for certification constituted an abuse of discretion.
. . . Second, if the petitioner can show an abuse of
discretion, 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 peti-
tioner 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 different manner]; or that the questions are
adequate to deserve encouragement to proceed further.
. . . 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 reasonably determined that the peti-
tioner’s appeal was frivolous. In other words, we review
the petitioner’s substantive claims for the purpose of
ascertaining 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.) Duncan v. Commissioner
of Correction, 171 Conn. App. 635, 644–45, 157 A.3d
1169, cert. denied, 325 Conn. 923, 159 A.3d 1172 (2017),
quoting Sanders v. Commissioner of Correction, 169
Conn. App. 813, 821–22, 153 A.3d 8 (2016), cert. denied,
325 Conn. 904, 156 A.3d 536 (2017); see also Vazquez
v. Commissioner of Correction, 123 Conn. App. 424,
428–29, 1 A.3d 1242 (2010), cert. denied, 302 Conn. 901,
23 A.3d 1241 (2011). With these principles in mind, we
turn to the merits of the petitioner’s substantive claim
that his trial counsel rendered ineffective assistance by
failing to warn him, clearly and unequivocally, of the
mandatory deportation consequences of his conviction
on the charge to which he entered his plea of guilty.
II
The petitioner claims that the habeas court improp-
erly rejected his claim that he received ineffective assis-
tance of counsel in connection with his guilty plea
because his counsel failed to advise him adequately as
to the mandatory immigration consequences of that
plea. Specifically, the petitioner claims that counsel’s
failure to so advise him prejudiced him because there
is a reasonable probability that, but for such allegedly
deficient advice, he would not have pleaded guilty but
instead would have insisted on going to trial on the
original charges against him. Because we conclude not
only that the habeas court properly determined that the
petitioner failed to demonstrate that he was prejudiced
by counsel’s allegedly deficient performance, but also
that, upon the facts found, there is no issue that could
be debatable among jurists of reason, no court could
resolve the issues in a different manner and there are
no questions adequate to deserve encouragement to
proceed further, we find that the habeas court did not
abuse its discretion in denying the petition for certifica-
tion to appeal.
We begin our analysis with the legal principles that
govern our review of the petitioner’s claim. ‘‘A criminal
defendant is constitutionally entitled to adequate and
effective assistance of counsel at all critical stages of
criminal proceedings. . . .3 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 coun-
sel is the right to the effective assistance of counsel.
. . .
‘‘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
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. . . . 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.’’
(Footnote in original; internal quotation marks omit-
ted.) Flomo v. Commissioner of Correction, 169 Conn.
App. 266, 277–78, 149 A.3d 185 (2016), cert. denied, 324
Conn. 906, 152 A.3d 544 (2017), quoting Thiersaint v.
Commissioner of Correction, 316 Conn. 89, 100–101,
111 A.3d 829 (2015); see also Hill v. Lockhart, 474 U.S.
52, 59, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985) (modifying
Strickland prejudice analysis in cases in which peti-
tioner entered guilty plea). ‘‘It is axiomatic that courts
may decide against a petitioner on either prong [of the
Strickland test], whichever is easier.’’ Lewis v. Com-
missioner of Correction, 165 Conn. App. 441, 451, 139
A.3d 759, cert. denied, 322 Conn. 901, 138 A.3d 931(2016), citing Strickland v. Washington, supra, 697 (‘‘a
court need not determine whether counsel’s perfor-
mance was deficient before examining the prejudice
suffered by the [petitioner]’’).
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, 559 U.S. 356, 130 S.
Ct. 1473, 176 L. Ed. 2d 284 (2010), 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 Connecticut law in Bud-
ziszewski v. Commissioner of Correction, 322 Conn.
504, 507, 142 A.3d 243 (2016), where 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 deporta-
tion . . . counsel must unequivocally convey to the cli-
ent that federal law mandates deportation as the
consequence for pleading guilty.’’
‘‘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. . . . To the extent
that factual findings are challenged, this court cannot
disturb the underlying facts found by the habeas court
unless they are clearly erroneous. . . . [A] finding of
fact is clearly erroneous when there is no evidence in
the record to support it . . . or when although there
is evidence to support it, the reviewing court on the
entire evidence is left with the definite and firm convic-
tion that a mistake has been committed. . . . A
reviewing court ordinarily will afford deference to those
credibility determinations made by the habeas court on
the basis of [the] firsthand observation of [a witness’]
conduct, demeanor and attitude.’’ (Citation omitted;
internal quotation marks omitted.) Flomo v. Commis-
sioner of Correction, supra, 169 Conn. App. 278–79.
To satisfy the prejudice prong, the petitioner had the
burden to prove that, absent counsel’s alleged failure to
advise him in accordance with Padilla, it is reasonably
probable that he would have rejected the state’s plea
offer and elected to go to trial. See Hill v. Lockhart,
supra, 474 U.S. 59. In evaluating whether the petitioner
had met this burden and evaluating the credibility of
the petitioner’s assertions that he would have gone to
trial, it was appropriate for the court to consider
whether ‘‘a decision to reject the plea bargain would
have been rational under the circumstances.’’ Padilla
v. Kentucky, supra, 559 U.S. 372. The habeas court made
an explicit finding that the petitioner ‘‘was well aware
that conviction for [the] sale of cocaine was virtually
inevitable. . . . This decision was eminently reason-
able because deportation was realistically unavoidable.
A lighter sentence became of paramount concern.’’ That
finding is not clearly erroneous because it is supported
by Barry’s testimony at the habeas trial that he informed
the petitioner of the strength of the state’s case against
him and the petitioner told him that he was not con-
cerned about the immigration consequences of a plea,
but instead wanted Barry to get him the shortest possi-
ble sentence. The court was free to credit Barry’s testi-
mony that the petitioner was not concerned about the
immigration consequences of his plea and that he sim-
ply wanted to receive the shortest possible period of
incarceration—that he in fact requested Barry obtain
him a sentence of four years incarceration suspended
after one year—which he accomplished by accepting
the plea agreement that his attorney negotiated.
The court similarly was free to reject the petitioner’s
testimony at the habeas trial that he would have rejected
the proposed plea agreement and gone to trial had he
been advised that he would almost certainly face depor-
tation as a result of his plea. The court could have
found that testimony not credible and unreasonable,
particularly in light of its rejection of the petitioner’s
assertions that Barry did not discuss potential immigra-
tion consequences of the plea with him or attempt to
set up an appointment for him with an immigration
attorney, and because the petitioner faced the real pos-
sibility, if he had chosen to go to trial and lost, of
receiving a much longer sentence before being
deported. It is simply not the role of this court on appeal
to second-guess credibility determinations made by the
habeas court. Martin v. Commissioner of Correction,
141 Conn. App. 99, 104, 60 A.3d 997, cert. denied, 308
Conn. 923, 94 A.3d 638 (2013).
In the present case, the habeas court elected not
to decide whether Barry’s performance was deficient.
Rather, it denied the habeas petition on the basis of its
determination that the petitioner’s ineffective assis-
tance claim failed on the prejudice prong of the Strick-
land-Hill test. According to the habeas court, the
petitioner failed to satisfy his burden of proving preju-
dice because he did not show that, but for Barry’s alleg-
edly deficient performance, it is reasonably probable
that he would have rejected the plea agreement offered
by the state and instead insisted on going to trial. On
the basis of the habeas court’s factual determinations,
which are not clearly erroneous, and its credibility
determinations, we conclude that no court could
resolve the issues presented in this appeal in a differ-
ent manner.
The appeal is dismissed.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
Because § 21a-278 provides penalties for sale of cocaine by a nondrug-
dependent person, if the petitioner had shown that he was drug-dependent,
each charge would have carried a maximum sentence of fifteen years incar-
ceration pursuant to § 21a-277.
2
See 8 U.S.C. § 1227 (a) (‘‘[a]ny alien . . . in and admitted to the United
States shall . . . be removed . . . [2] [A] . . . [iii] . . . who is convicted
of an aggravated felony at any time after admission’’). Violation of any law
or regulation of a state relating to a controlled substance as defined in 21
U.S.C. § 802 is an aggravated felony, and cocaine is a schedule II drug under
federal law. See 21 U.S.C. § 812 (2012). Thus, a conviction under § 21a-277
(a) subjects a defendant to mandatory removal under federal law.
3
It is well settled that ‘‘critical stages’’ include those related to the entering
of a guilty plea. See Missouri v. Frye, 566 U.S. 134, 140, 132 S. Ct. 1399,
182 L. Ed. 2d 379 (2012).