Noze v. Commissioner of Correction

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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).