Olorunfunmi v. Comm'r of Corr.

211 Conn.App. 291

272 A.3d 716

Ibraheen OLORUNFUNMI

v.COMMISSIONER OF CORRECTION

AC 44187

Appellate Court of Connecticut.

Argued November 10, 2021

Officially released March 22, 2022

J. Patten Brown III, Avon, 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).

Alexander, Clark and Palmer, Js.

PALMER, J.

The petitioner, Ibraheen Olorunfunmi, appeals following the denial of his petition for certification 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 discretion in denying the petition for certification to appeal because his constitutional right to the effective assistance 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 investigated 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 transfer 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 [surveillance] videos of the [petitioner] making several withdrawals on days following the transfer. The $6000 transfer 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 contacted 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 transfer, 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 likelihood of his deportation, although, you know, that's purely a guess on my part. I'm not an immigration attorney. 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 petitioner. ... 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 petitioner 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 petitioner 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 problem ... [was] not necessarily with the disposition that [was] about to be imposed by [the trial] court, but ... [was] with the immigration authorities. ... The petitioner 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 sentence 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 petition. 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 consequences 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 uncomplicated but that he...