Budziszewski v. Branch

PIOTR BUDZISZEWSKI v. CONNECTICUT JUDICIAL BRANCH,COURT SUPPORT SERVICES DIVISION,ADULT PROBATION SERVICES

AC 41867

COURT OF APPEALS OF THE STATE OF CONNECTICUT

Argued March 12, 2020

August 11, 2020

DiPentima, C. J., and Moll and Flynn, Js.^*

Syllabus

The petitioner, a Polish national, sought a writ of habeas corpus, claiming that his criminal trial counsel, K, had provided ineffective assistance by failing to advise him adequately as to the immigration consequences of his plea of guilty to a certain offense that subjected him to deportation. After the petitioner entered the guilty plea, federal authorities detained him and initiated deportation proceedings against him. The petitioner claimed that, if he had been properly advised by K as to the immigration consequences of entering a guilty plea, he would not have accepted the plea offer. The habeas court rendered judgment denying the habeas petition and granted the petition for certification to appeal, and the petitioner appealed to this court. Held that the habeas court properly concluded that the petitioner was not prejudiced by the advice of his attorney, K, regarding the immigration consequences of pleading guilty: although the petitioner highlighted the actions that he took subsequent to accepting the plea offer, including the motions that he had filed contesting his conviction following his guilty plea and the amount of money he spent in avoiding deportation, the petitioner's post hoc assertions on appeal that he would not have pleaded guilty but for K's advice were insufficient to establish prejudice in light of the absence of substantial, contemporaneous evidence to support such assertions, the credibility determinations made by the habeas court regarding the concerns of the petitioner that were contemporaneous to his acceptance of the offer support the conclusion that the court credited K's testimony that the length of incarceration, not deportation, was the petitioner's main concern, and that the petitioner accepted the plea that would ensure that he would spend less than one year in jail, and the court did not credit the petitioner's testimony that he would not have taken the plea deal had he known that he would be deported.

Procedural History

Amended petition for a writ of habeas corpus, brought to the Superior Court in the judicial district of Tolland, geographical area number nineteen, and tried to the court, Oliver, J.; judgment denying the petition, from which the petitioner, on the granting of certification, appealed to this court. Affirmed.

Vishal K. Garg, for the appellant (petitioner).

Ronald G. Weller, senior assistant state's attorney, with whom, on the brief, were Patrick Griffin, state's attorney, and Adrienne Russo, assistant state's attorney, for the appellee (respondent).

Opinion

FLYNN, J. The petitioner, Piotr Budziszewski, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. The petitioner claims on appeal that the habeas court improperly rejected his claim that his right to effective assistance of counsel was violated by his criminal trial counsel's failure to properly advise him of the immigration consequences of entering a guilty plea. We disagree and, accordingly, affirm the judgment of the habeas court.

At the center of this case is the effect that federal law has on aliens provided lawful permanent residence in the United States who commit an "aggravated felony." Pursuant to 8 U.S.C. § 1227 (a) (2) (A) (iii), "[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable." Illicit trafficking in a controlled substance is listed in 8 U.S.C. § 1101 (a) (43) (B) as an "aggravated felony." (Internal quotation marks omitted.) The term "controlled substance" under federal law includes "a drug or other substance, or immediate precursor, included in schedule I, II, III, IV, or V of part B of this subchapter [21 U.S.C. § 812]." (Internal quotation marks omitted.) 21 U.S.C. § 802 (6) (2018). Included in the schedules of 21 U.S.C. § 812 are opium derivatives. The petitioner was arrested for selling Roxicodone, an opium derivative, and entered a guilty plea pursuant to General Statutes (Rev. to 2011) § 21a-277 (a). In Gousse v. Ashcroft, 339 F.3d 91, 93 (2d Cir. 2003), the United States Court of Appeals for the Second Circuit held that Gousse's conviction under § 21a-277 (a) for selling a "controlled substance" to an undercover police officer constituted a conviction for "illicit trafficking in a controlled substance" under 8 U.S.C. § 1101 (a) (43) (B), which is a removable "aggravated felony" under the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq. (2018). The first habeas court determined, and the second habeas court agreed, that the petitioner's conviction qualified as an aggravated felony under federal immigration law and that no exception or exclusion applied, thus making the petitioner subject to deportation.

At the outset, we note that the United States Supreme Court in "Padilla [v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010)] held that before an alien criminal defendant pleads guilty to a criminal offense for which he is subject to deportation, his defense attorney must advise him of the deportation consequences of his plea and resulting conviction. On that score, the Supreme Court concluded that because deportation is such a great, life-altering consequence of a criminal conviction, an alien defendant's plea of guilty to a deportable offense without knowledge of that consequence cannot be considered a knowing and intelligent waiver of his right not to be convicted of that offense unless his guilt is established beyond a reasonable doubt at a full, fair adversary trial." Guerra v. State, 150 Conn. App. 68, 72-73, 89 A.3d 1028, cert. denied, 314 Conn. 903, 99 A.3d 1168 (2014).

The following facts and procedural history, as set forth by the habeas court, are relevant. "The petitioner, a Polish national who became a lawful permanent resident of the United States after emigrating here in 2001, was arrested on various drug charges after selling narcotics on two occasions to undercover police officers in January, 2011. The petitioner was charged with two counts of selling narcotics by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b), and two counts of possession of a narcotic substance with intent to sell in violation of General Statutes § 21a-279 (a). The petitioner faced a minimum sentence of five years of incarceration with a maximum term of twenty years. Attorney Gerald Klein represented the petitioner at all relevant times.

"On January 24, 2012, the petitioner entered a guilty plea to one count of possession of a controlled substance with intent to sell in violation of General Statutes [Rev. to 2011] § 21a-277 (a). This offense carried no mandatory minimum period of incarceration. During plea negotiations, the state agreed to a sentence recommendation of five years of incarceration, execution suspended after no more than one year, followed by three years of probation, with the right to argue for less. The court, Scarpellino, J., canvassed the petitioner when he entered his guilty plea . . . .

"On May 2, 2012, the court . . . sentenced the petitioner to five years of incarceration, execution suspended after ninety days, and two years of probation. The petitioner was released from custody after serving forty-five days of incarceration. Thereafter, federal authorities detained the petitioner and began proceedings to remove him from the country. A final order of deportation has been entered against the petitioner, and he has exhausted all appeals from that order.

"The petitioner initiated the present habeas petition on September 11, 2013. In his amended petition, filed on October 28, 2013, the petitioner set forth ineffective assistance of counsel claims as to trial counsel's failure to advocate for the petitioner's admission into a drug treatment program, and failure to adequately research and advise the petitioner of the immigration consequences of his guilty plea as required by Padilla v. Kentucky, [supra, 559 U.S. 356]. . . . The habeas court, Newson, J., granted the petitioner's petition and ordered that his conviction be vacated. The respondent [the Commissioner of Correction] appealed the decision, and [our] Supreme Court [in Budziszewski v. Commissioner of Correction, 322 Conn. 504, 518, 142 A.3d 243 (2016)], reversed the habeas court's judgment and remanded the case back to the habeas court for a new trial in which the habeas court must make findings of fact about what [Attorney] Klein actually told the petitioner and then assess whether, based on those findings, the petitioner has proven that [Attorney] Klein's advice violated the requirements of Padilla, as clarified by our [Supreme Court's] decision in [Budziszewski v. Commissioner of Correction, supra, 504]." (Footnote omitted; internal quotation marks omitted.)

On remand, the habeas court denied the petition and concluded both that the petitioner had failed to establish that Klein's advice constituted deficient performance and had failed to prove that he was prejudiced by Klein's advice. The court granted the petitioner's petition for certification to appeal. This appeal followed.

We begin with the applicable legal principles. "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...