Opinion
TSRCV144006172S
02-02-2016
Leonard Ismaili v. Warden, State Prison
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
William H. Bright, J.
The petitioner, Leonard Ismaili, initiated the present matter via a summons and complaint (i.e., petition for a writ of habeas), which was amended one time thereafter on January 26, 2015. The amended petition consists of one count that alleges ineffective assistance of counsel by trial counsel, Attorney Thomas Mitchell-Hoffler, premised on his failures to investigate and advise the petitioner about the deportation and immigration consequences of his conviction in State v. Ismaili, G.A. #4, Waterbury, Docket No. CR12-0407774 S. The petitioner requests that this court vacate his conviction in that case and permit him to withdraw his guilty plea. The respondent's return denies the petitioner's material allegations and that he is entitled to habeas corpus relief, and asserts the affirmative defense of procedural default. The petitioner did not file a reply to the return. See Practice Book § 23-31.
This court held a trial on the merits of the petition on September 11, 2015. The petitioner produced three witnesses, himself, Attorney Mitchell-Hoffler, and Attorney Anthony Collins, an expert witness called to testify regarding immigration matters. The respondent cross examined the petitioner's witnesses, but called no witnesses. The court also received as exhibits the sentencing transcripts from two separate criminal matters, reports and documents related to petitioner's arrests and to a violation of probation, an information sheet pertaining to the guilty plea at issue in this case, and the notice to appear from the U.S. Department of Homeland Security related to his deportation proceedings. Both parties filed post-trial briefs.
Findings of Facts
Based on the evidence presented, the court finds the following facts. In 1987, the petitioner, who was about three years old, and his family entered the United States from the former Yugoslavia. His entry occurred " at an unknown place on or about an unknown date without the benefit of inspection by an immigration authority [.]" Petitioner's Exhibit 2, p. 3. On January 6, 2006, after an immigration hearing, the petitioner was granted lawful permanent resident status by the United States government.
The facts relating to the petitioner's plea at issue here are as follows. On April 9, 2012, a Waterbury police officer and a detective were patrolling the area of downtown Waterbury when they observed the petitioner walking down an area of Bank Street, Waterbury, which is within 1, 500 feet of the Waterbury Arts Magnet School. The detective recognized the petitioner from a previous investigation and knew him to have two outstanding arrest warrants. The petitioner was stopped and taken into custody. In the course of a search of the petitioner, incident to the arrest, the detective found fifteen bags of a brown substance in his front pocket, later tested and determined to be heroin. Based on these findings, the petitioner was charged with possession of narcotics with intent to sell in violation of General Statutes § 21a-277(a) and possession of narcotics in a school zone with intent to sell in violation of General Statutes § 21a-279(d). He was also charged with violating an earlier probation and two larcenies of automobiles based on the warrants outstanding at the time of his arrest. The petitioner retained Attorney Mitchell-Hoffler to represent him on these matters, as he had represented the petitioner on previous occasions stemming back a number of years. On June 28, 2012, the petitioner reached an agreement with the state to resolve all of his outstanding charges. The agreement called for the petitioner to enter a guilty plea to the charge of possession of narcotics with intent to sell, and admit the violation of his probation. He would then be released on a promise to appear to Union House, a Drug and Alcohol rehabilitation facility, pending the availability of a bed at Daytop, an inpatient facility, where he was expected to complete a six-month program. If he successfully completed the inpatient program, he would receive a fully suspended three-year sentence on the drug charge, have his original probation terminated and the state would nolle the second drug charge and the two larceny charges. If he was unsuccessful in treatment he would receive a total effective sentence of three years to serve.
When the agreement was first reported to the court on June 28, 2012, counsel reported that the state's offer had only been briefly discussed between them. Attorney Mitchell-Hoffler told the court that he had conveyed the offer to the petitioner " off the cuff." The court then passed the matter so that Attorney Mitchell-Hoffler and the petitioner would have more time to discuss the offer. The matter was recalled five to ten minutes later, with the terms of the agreement as set forth above explained to the court.
During the canvass on his guilty plea and admission, the petitioner confirmed that he had had enough time to talk to his lawyer about the case and about the consequences of his decision to plead guilty. He further stated that he was satisfied with Attorney Mitchell-Hoffler's representation of him, and that he had no questions regarding the plea agreement. Most important to the present matter, the petitioner testified that he understood that if he was not a citizen he could be deported, excluded from the United States or denied naturalization.
With respect to that understanding, the evidence showed the following facts. Attorney Mitchell-Hoffler had known the petitioner and his parents for years prior to June 28, 2012. He testified that based on their accents and occupations he thought that the petitioner's parents may have immigrated to the United States from another country. Despite this belief, Attorney Mitchell-Hoffler claimed that he never asked the petitioner about his immigration status and did not know at the time of his plea on June 28, 2012, that the petitioner was not a United States citizen. According to Attorney Mitchell Hoffler, it is not his practice to ask his clients if they are United States citizens before they enter a guilty plea. The petitioner testified that Attorney Mitchell-Hoffler did know that the petitioner was not a United States citizen. Given the long-standing relationship between Attorney Mitchell-Hoffler and the petitioner and his family, the court finds the petitioner's testimony more credible. Thus, the court finds that it is more likely than not that Attorney Mitchell-Hoffler knew that the petitioner was not a United States citizen at the time the petitioner pled guilty on June 28, 2012.
Despite having such knowledge, or at least reason to be concerned that the petitioner might be subject to deportation, Attorney Mitchell-Hoffler provided almost no advice to the petitioner regarding the immigration consequences of his plea. As noted above, Attorney Mitchell-Hoffler only spent five to ten minutes discussing the state's proposed offer with the petitioner before he accepted the offer and entered his guilty plea. Attorney Mitchell-Hoffler told the petitioner that the judge was going to ask him if he understood there could be immigration consequences to his plea. He also told him some cases could possibly lead to deportation. He did not discuss with the petitioner whether the charge the petitioner was going to plead guilty to involved mandatory deportation, even though Attorney Mitchell-Hoffler understood that the sale of narcotics constituted an aggravated felony for immigration purposes. Consequently, the only thing that the petitioner was told by the court and/or Attorney Mitchell-Hoffler was that his guilty plea might have immigration consequences.
Additionally, Mitchell-Hoffler testified that his understanding of his obligation as counsel in regards to immigration issues, under Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), was to inform clients that, if they are pleading to cases that fall within the scope of crimes involving moral turpitude, than they may be deported. When asked by the respondent during cross examination if the petitioner would have been willing to go to trial had he suggested it, Attorney Mitchell-Hoffler stated that he " would have never instructed the client to take it to trial under any circumstances . . ." and that " if he did want to go to trial, I would have put it on that record that I'm advising him based on the information that I've received and my analysis as a lawyer, and the evidence and all the things against him . . ."
There was other information though that the petitioner had about the possibility of deportation. At the time of his guilty plea, the petitioner knew that the United States had placed an immigration detainer, or " Do Not Release, " order on the petitioner. Thus, the petitioner knew that he faced deportation not only as a result of the charges he was facing in 2012, but also as a result of an October 25, 2011 conviction for larceny in the third degree, in violation of General Statutes § 53a-124. After pleading guilty to that charge, the petitioner was sentenced to three years of incarceration, execution suspended, with three years of probation, and was placed in a drug rehabilitation program, which he successfully completed. The United States never sought to deport the petitioner based on that conviction until the petitioner was arrested on new charges, including violation of the 2011 probation, in 2012. The petitioner also understood when he pled guilty on June 28, 2012, that the immigration detainer would be lifted allowing him to enter the drug rehabilitation program. He further believed that if he successfully completed the program, in addition to not going to jail, he would not face deportation. Attorney Collins, an expert in immigration and deportation matters, testified that he is aware of occasions such as the petitioner's where detainers are lifted, even though there is a state conviction that can provide the basis for deportation proceedings. In addition, both the testimony of the petitioner as well as Attorney Mitchell-Hoffler, established that the petitioner's primary focus in plea discussions 2012 was to avoid jail time. Consequently, on June 28, 2012, the petitioner pleaded guilty pursuant to his agreement with the state, and began his drug rehabilitation program.
On December 4, 2012, upon successful completion of the program, the petitioner returned to the Waterbury Superior Court for sentencing. Pursuant to his agreement with the state, he was sentenced to three years of incarceration, execution suspended, and three years of probation on the drug charge, his 2011 probation was terminated, and the second drug charge and the larceny charges were nolled. The petitioner was not detained for immigration purposes. Nor did the United States show any interest in seeking the deportation of the petitioner.
At some point on or around May 2013, the petitioner was arrested for a charge unrelated to those previously discussed. He did not make bail, and while in pretrial custody, was informed that an immigration detainer had again been placed on him. On September 4, 2015, the petitioner was served with a Notice to Appear regarding immigration removal proceedings from the Department of Homeland Security. The notice cites the petitioner's 2011 larceny in the third degree conviction, as well as his 2012 possession with intent to sell conviction as the bases for his removal from the United States, in that both are categorized as aggravated felonies as defined in 8 U.S.C. 1101 § 101(a)(43)(G) and 8 U.S.C. 1101 § 101(a)(43)(B), respectively, and therefore subject to removal pursuant to 8 U.S.C. 1227 § 237(a)(2)(A)(iii), in addition to 8 U.S.C. 1227 § 237(a)(2)(B)(i) which applies again to the drug conviction and further reinforces its categorization as an aggravated felony.
Additional facts will be discussed below as necessary.
Discussion
A. Mootness
Before the court turns to the merits of the petitioner's claim and the respondent's defense, it must address the respondent's claim that the petitioner's claim is moot. " Mootness is a question of justiciability that must be determined as a threshold matter because it implicates [a] court's subject matter jurisdiction . . ." (Internal quotation marks omitted.) Patterson v. Commissioner of Correction, 112 Conn.App. 826, 829, 964 A.2d 1234 (2009). " In undertaking this review, [courts must be] mindful of the well-established notion that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 650, 974 A.2d 669 (2009); see also Dayner v. Archdiocese of Hartford, 301 Conn. 759, 774, 23 A.3d 1192 (2011).
The issue of mootness potentially arises in this case because of the petitioner's 2011 conviction, which the United States claims is a separate and independent basis for deportation. If it is, the petitioner's claims here could be moot because he cannot challenge that potentially independent basis for deportation because he was not in custody (his probation having been terminated) on that conviction when he filed this petition.
The respondent relies on State v. Aquino, 279 Conn. 293, 901 A.2d 1194 (2006), where the court held that a petition could be dismissed as moot on the grounds that the petitioner had failed to introduce any evidence or to claim that the guilty plea that he was challenging was the sole reason for his deportation. Id., 298. The defendant in Aquino had been in the United States illegally, and did not provide any evidence that his illegal entry was not the cause of his deportation, rather than the guilty plea.
The respondent also relies on the Appellate Court's decision in Quiroga v. Commissioner of Correction, 149 Conn.App. 168, 87 A.3d 1171, cert. denied, 311 Conn. 950, 91 A.3d 462 (2014), in which the court dismissed the petition as moot citing Aquino, where the petitioner had plead guilty to a charge of possession of narcotics as well as larceny in the first degree. The Appellate Court held that the petitioner had not provided any evidence that the larceny conviction, which he was challenging, was the sole reason for his deportation, as opposed to the possession of narcotics conviction, which he was not challenging. Id., 173. According to the Appellate Court, Aquino requires proof that the conviction at issue was the exclusive basis for deportation, rather than a primary or likely one. Id., 175.
The petitioner argues that his specific case, given the 2011 larceny in the third degree conviction, is distinguishable from Aquino and Quiroga . In particular, the petitioner relies on United States v. Klim, civil action No. 1:23-CR-164-jgm-01, (D. Vermont, Aug. 18, 2014), in which the U.S. District Court for the District of Vermont held that violation of Connecticut's larceny in the third degree statute, Conn. Gen. Stat. § 53a-124, does not constitute an aggravated felony mandating deportation. United States v. Klim, at *9-13. In Klim, the defendant was charged with reentering the country illegally after removal as an aggravated felon. The defendant moved to dismiss the indictment on the basis that she received ineffective assistance of counsel in her removal proceedings because her attorney failed to argue that her violation of Conn. Gen. Stat. § 53a-124, which was the ground for her removal, was not an aggravated felony. The court agreed, noting first that " the Second Circuit follows a categorical approach when deciding whether an offense of conviction fits within the definitions of aggravated felony listed in section 101(a)(43) . . . This approach requires a focus on the elements of the offense without regard to the factual circumstances of the crime." (Citations omitted; internal quotation marks omitted.) Id. at *9. The court then noted that the Board of Immigration Appeals (BIA) has defined theft as an aggravated felony only when the property stolen was taken " without consent." Id. at *10. To the extent that a statute defining theft provides that one can commit the crime while taking another's property with consent, for example, by fraud, then the statute would not categorically fit the definition of an aggravated felony. The Second Circuit acknowledged the BIA's definition of what constitutes theft in Bazuaye v. Mukasey, 273 F.App'x 77 (2d. Cir. 2008). In doing so, the Second Circuit held that if the New York larceny offense " criminalizes the taking of property both with and without consent, [the alien's] offense does not categorically fit within the BIA's amended definition of 'theft offense.'" Id. at 78. The Klim court then noted that both the Connecticut and New York theft statutes do not require lack of consent as an element of the offense. Instead, both statutes are satisfied if the taking was " wrongful." Because a taking of property by fraud is wrongful, even if done with the owner's consent, applying the reasoning of the Second Circuit in Bazuaye, General Statutes § 53a-124 does not categorically fit the definition of an aggravated felony. Our Appellate Court in a very similar case involving whether a Connecticut criminal statute mandated the preclusion of readmission to the United States under federal immigration law recently held that " [o]rdinarily, Connecticut state courts seek guidance from decisions of the United States Court of Appeals for the Second Circuit because they carry particularly persuasive weight in the interpretation of federal statutes." (Citation omitted; internal quotation marks omitted.) St. Juste v. Commissioner, 155 Conn.App. 164, 177, 109 A.3d 523, cert. granted, 316 Conn. 901, 111 A.3d 470 (2015). Consequently, the court concludes that the petitioner's 2011 conviction under General Statutes § 53a-124 is not an aggravated felony subjecting him to mandatory removal. For this reason, his challenge to his 2012 conviction is not moot.
Furthermore, the petitioner is in a different situation than the defendant in Aquino and the petitioners in Quiroga and St. Juste, each of whom had already been deported at the time the court addressed the question of mootness. The petitioner, by contrast, has yet to be removed from the United States. Consequently, even if this court concluded that larceny in the third degree was an aggravated felony, the petitioner's case would not be rendered moot, because an immigration body might agree with the Klim court's analysis. If the immigration authority overseeing and/or reviewing the petitioner's deportation proceedings finds Klim persuasive, then the 2012 convictions would be the only basis for the mandatory deportation of the petitioner. For this additional reason the court cannot say that the petitioner's claim in this matter is moot.
B. Procedural Default
The court next addresses the respondent's claim of procedural default, which he raised in the return and which the petitioner failed to rebut in a reply to the return. The respondent asserts that the petitioner procedurally defaulted because he did not seek to withdraw his guilty plea and did not raise a challenge on direct appeal. Having raised this defense, the burden shifts to the petitioner to file a reply and assert the cause and prejudice for the purported procedural default. See Practice Book § 23-31; Milner v. Commissioner of Correction, 63 Conn.App. 726, 734, 779 A.2d 156 (2001).
Although the petitioner did not file a reply, the court concludes that the petitioner has not procedurally defaulted because individuals such as the petitioner typically are not aware of the basis for a motion seeking permission to withdraw a guilty plea until well after sentencing, as federal detainers and ensuing deportation proceedings occur post-sentencing. See, e.g., Crawford v. Commissioner of Correction, 294 Conn. 165, 190, 982 A.2d 620 (2009) (" not[ing] that under our long-standing precedent, criminal defendants who have defaulted a claim because of counsel's failure to inform them of essential rights may seek relief by alleging and proving ineffective assistance of counsel"). In other words, it is the claims against counsel and their factual and procedural bases that already embody any cause and prejudice the petitioner would assert in response to procedural default. That is particularly true here. The petitioner did not learn about immigration consequences of his guilty plea until almost a year later when an immigration detainer was placed on him in May 2013. The detainer also came approximately six months after the petitioner had been sentenced in accordance with his plea. By then, the time to withdraw his plea or appeal his conviction had long passed. For these reasons, the court concludes that procedural default is inapplicable.
C. Ineffective Assistance of Counsel
In the present case, the petitioner claims that his trial counsel was ineffective for failing to adequately advise him of the deportation and immigration consequences of his guilty plea. In particular, the petitioner claims that counsel failed to properly advise him of these consequences of his guilty plea to a charge of possession with intent to sell/dispense in violation of General Statutes § 21a-277(a), which he pled guilty to on June 28, 2012 under docket number CR12-047774.
It is well established that " [a] criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of a criminal proceeding." Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). " This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. Baez v. Commissioner of Correction, 34 Conn.App. 236, 242-43, 641 A.2d 147, cert. denied, 231 Conn. 905, 906, 648 A.2d 149 (1994)." Dennis v. Commissioner of Correction, 134 Conn.App. 520, 531, 39 A.3d 799 (2012). The United States Supreme Court has recently held that pretrial negotiations implicating the decision whether to plead guilty is a critical stage in criminal proceedings for purposes of the sixth amendment right to the effective assistance of counsel. See Missouri v. Frye, 566 U.S. ___, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012); Lafler v. Cooper, 566 U.S. ___, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012); Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). " In today's criminal justice system . . . the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant." Missouri v. Frye, supra, 566 U.S.
Similarly, " [o]ur Supreme Court has recognized that pretrial negotiations implicating the decision of whether to plead guilty is a critical stage, and, therefore, a defendant is entitled to adequate and effective assistance of counsel at this juncture of the criminal proceedings. Copas v. Commissioner of Correction, 234 Conn. 139, 153, 662 A.2d 718 (1995)." Ebron v. Commissioner of Correction, 120 Conn.App. 560, 567, 992 A.2d 1200 (2010), aff'd in part, rev'd in part on other grounds, 307 Conn. 342, 53 A.3d 983 (2012). The decision to plead guilty is " ordinarily the most important single decision in any criminal case." (Internal quotation marks omitted.) Id., 572. " During plea negotiations defendants are entitled to the effective assistance of competent counsel." (Internal quotation marks omitted.) Lafler v. Cooper, supra, 566 U.S.
In Carraway v. Commissioner of Correction, 317 Conn. 594, 600 n.6, 119 A.3d 1153 (2015), the Supreme Court noted that the prejudice prong standard as articulated in Copas had been overruled sub silentio in Washington v. Commissioner of Correction, 287 Conn. 792, 835, 950 A.2d 1220 (2008), and Crawford v. Commissioner of Correction, 285 Conn. 585, 598, 940 A.2d 789 (2008).
" Anything less . . . might deny a defendant effective representation by counsel at the only stage when legal aid and advice would help him." (Internal quotation marks omitted.) Missouri v. Frye, supra, 566 U.S. " Although this decision [whether to plead guilty] is ultimately made by the defendant, the defendant's attorney must make an informed evaluation of the options and determine which alternative will offer the defendant the most favorable outcome. A defendant relies heavily upon counsel's independent evaluation of the charges and defenses, applicable law, the evidence and the risks and probable outcome of a trial. The right to effective assistance of counsel includes an adequate investigation of the case to determine facts relevant to the merits or to the punishment in the event of conviction." Copas v. Commissioner, supra, 234 Conn. 154.
To establish his claim of ineffective assistance, the petitioner has the burden to show 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." (Emphasis in original.) Johnson v. Commissioner of Correction, 285 Conn. 556, 575, 941 A.2d 248 (2008). " The first prong requires a showing that 'counsel made errors so serious that counsel was not functioning as the " counsel" guaranteed the defendant by the [s]ixth [a]mendment.'" Id., 576, quoting Strickland v. Washington, supra, 466 U.S. 687. With respect to the prejudice prong for claims of ineffective assistance when the conviction resulted from a guilty plea, the petitioner must demonstrate " that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial." Johnson v. Commissioner of Correction, supra, 285 Conn. 576, quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); Carraway v. Commissioner, 144 Conn.App. 461, 476, 72 A.3d 426 (2013), appeal dismissed, 317 Conn. 594, 600 n.6, 119 A.3d 1153 (2015).
When assessing trial counsel's performance, the habeas court is required to " indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . ." Strickland v. Washington, supra, 466 U.S. 689. The United States Supreme Court explained that " [a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy . . . There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way." (Citations omitted; internal quotation marks omitted.) Id.
In evaluating the petitioner's claim that trial counsel's performance was deficient in regard to advisement of the deportation and immigration consequences of a guilty plea, courts rely on the United States Supreme Court ruling in Padilla v. Kentucky, supra, 559 U.S. 374, in which the court held that trial counsel " must inform her client whether his plea carries a risk of deportation." The court further explained that: " When the law is not succinct and straightforward . . . a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear, . . . the duty to give correct advice is equally clear." Id., 369. The court explained that " [t]he importance of accurate legal advice for noncitizens accused of crimes has never been more important . . . [A]s a matter of federal law, deportation is an integral part--indeed, sometimes the most important part--of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes." Id., 364.
Based on the evidence presented and the facts found by the court, Attorney Mitchell-Hoffler's explanation of the immigration consequences of a guilty plea was clearly deficient. First, as noted above, Attorney Mitchell-Hoffler knew that the petitioner was not a United States citizen when he entered his plea on June 28, 2012. Thus, he should have paid particular attention to the immigration consequences of a guilty plea. This conclusion is the same even if one accepts Attorney Mitchell-Hoffler's claim that he did not know the petitioner's immigration status. Attorney Mitchell-Hoffler claimed that he did not know the petitioner's status because he never asked him. The court fails to see how an attorney can meet his obligation to properly advise a client of the immigration consequences of a plea if he does not even know what the client's status is. Simply assuming that a client is a United States citizen unless the client volunteers information to the contrary is not sufficient.
While the court believes that counsel advising any client regarding a guilty plea has an obligation to know the client's immigration status, if one accepts his testimony as true, it is particularly troubling that Attorney Mitchell-Hoffler would not ask the petitioner about his status before he pled guilty in 2012. After all, Attorney Mitchell-Hoffler testified that he suspected that the petitioner's parents came to United States from another country.
Second, the deportation consequences of the petitioner's guilty plea were truly clear. As attorney Collins testified, the narcotics charge to which the petitioner pled guilty is an aggravated felony, as to which deportation is virtually mandatory. Consequently, counsel's advice to the client, that he admitted was limited to a review of the plea canvass, clearly falls below the standard established by Padilla, as it lacks the explicit confirmation to the client that his plea of guilty will result in deportation. In fact, counsel's testimony of his understanding of his obligation under Padilla in itself is inaccurate and would result in him providing inadequate information to his clients. The court finds that trial counsel's performance was deficient in failing to properly advise the petitioner that the charge he was pleading guilty to would almost certainly result in deportation.
Concluding that Attorney Mitchell-Hoffler's performance was deficient is not the end of the court's inquiry though. The petitioner is only entitled to relief if he has proven that the deficient performance by counsel resulted in prejudice. In particular, he must prove that had he been properly advised of the immigration consequences of his plea, he would not have pleaded guilty and would have chosen to go to trial. The court concludes that he has failed to do so.
Both the petitioner and Attorney Mitchell-Hoffler testified that the petitioner's primary concern in June 2012 was to avoid imprisonment. This is not surprising given that the petitioner was facing four new felony charges and was accused of violating a probation he received less than a year earlier. Thus, at the time of his plea, the petitioner was facing the possibility of potentially decades in jail if he was convicted of all of the charges and found to be in violation of his probation. In addition, at that time, he was also the subject of an immigration detainer, and would have almost certainly been deported following a long prison sentence had he gone to trial and been convicted. Furthermore, the state's evidence against the petitioner regarding the narcotics charges was strong, and there was a strong likelihood that he would be found guilty on those two charges, as well as the violation of probation, in the very least.
Finally, the petitioner understood that the immigration detainer would be lifted if he pled guilty and went into the drug rehabilitation program. He also understood that if he successfully completed the program he would not go to jail and would not face deportation. And when he did complete the program that is exactly what happened. It was not until the petitioner was arrested in May 2013 on new charges that he was again subjected to an immigration detainer. There is no evidence that when he pled guilty in June 2012 the petitioner expected that he would get arrested a year later and the consequences of his earlier pleas would come back to haunt him. To the contrary, he testified that he entered his plea in June 2012 to avoid going to jail and to turn his life around. The court finds that the petitioner's claim that he would have not pled guilty had he been told that the drug charge was definitely a deportable offense is not credible. This is particularly so, given that he was the subject of an immigration detainer at that time and knew that pleading guilty would lead to the detainer being lifted.
The court concludes, based on the foregoing, that the petitioner has failed to prove the prejudice prong of the Strickland/Hill standard.
Conclusion
Although the petitioner has shown that counsel's performance was deficient, he has failed to meet his burden of proof as to the prejudice prong of the Strickland/Hill standard for ineffective assistance of counsel. Judgment shall enter for the respondent and the petition for a writ of habeas corpus is denied.