Opinion
No. CV 10 4003422 S
October 3, 2011
MEMORANDUM OF DECISION
The petitioner, Lance Williams, alleges in his Amended Petition for a writ of habeas corpus, filed on March 13, 2011, that he was denied the effective assistance of counsel in connection with his guilty plea in the Judicial District of New Haven to a charge of robbery in the second degree. The petitioner entered his guilty plea on August 20, 2009 before Damiani, J. On October 30, 2009, the court, Damiani, J., sentenced the petitioner to six years of incarceration, execution suspended after two years, followed by three years of probation. The petitioner was represented by Attorney Michael Dolan.
The Amended Petition purports to assert claims under the Fifth, Sixth and Fourteenth Amendments of the United States Constitution. It provides no other detail regarding the legal bases for the petitioner's claims. The petitioner provided greater specificity in his pre-trial brief in which he stated that "the essence of most of [the] allegations is that the Petitioner's guilty plea resulted from ineffective assistance of counsel." Pet. Preliminary Trial Brief, May 25, 2011, p. 1. The brief then discusses nothing other than the legal standard for such a claim.
The Amended Petition sets forth 35 separate counts, although it indicates that several are "withdrawn." In addition, prior to trial, the petitioner consented to the dismissal of several other counts. What is left are 15 counts that make various allegations regarding Attorney Dolan's conduct. All but two of those claims, in one way or another, allege that the petitioner's plea was not knowing and voluntary due to the actions or inactions of Attorney Dolan. One group of claims (counts 2, 3, 6, 15, 16, 21, 29) allege that the petitioner either did not understand the nature of the plea or was pressured into the plea by Attorney Dolan's actions. A second group of claims (7, 9, 18, 19) allege that Attorney Dolan did not do an adequate investigation, and had he done so, the petitioner would not have pled guilty. In count 13, the petitioner claims that Attorney Dolan had a conflict of interest that negatively impacted his representation of the petitioner. Finally, in count 12, the petitioner alleges that Attorney Dolan failed to properly advise him of the immigration consequences of his guilty plea.
According to the Amended Petition, counts 8, 10, 11, 17, 20, 22, 26, 28, and 31-35 are withdrawn.
With the petitioner's consent, counts 1, 4, 5, 14, 25, 27, and 30 were dismissed by the court prior to the presentation of any evidence.
Counts 23 and 24 allege that Attorney Dolan misinformed the court about the nature of the petitioner's and his co-defendant's cooperation with the police. The petitioner offered no evidence in support of this claim. Nor did he argue or explain how this claim, even if true, impacted the petitioner's decision to plead guilty for the sentence imposed on him by the court. Consequently, the claims are deemed abandoned. Even if they were not abandoned, the petitioner has not met his burden of proof regarding these claims. Consequently, the respondent is entitled to judgment on them.
FACTUAL BACKGROUND
The petitioner's guilty plea arose out of an incident that occurred on December 17, 2008. On that evening, at approximately 10:00 p.m., the petitioner was in a gray van with two friends. One of the three called a Chinese restaurant and placed an order and requested delivery to a residence on Pendleton Street in New Haven. When the delivery person arrived at the residence, a black male exited the residence and took the bag of food from him. A second person, who was wearing a mask, pointed at the delivery person what the delivery person believed to be a gun and demanded money. The delivery person turned over approximately $40.00 to the masked man. The two robbers fled to a nearby gray van that left the scene. The van was stopped by police a few moments later. The petitioner and two other black males were inside. The police brought the delivery person to the petitioner and the other occupants of the van to see if he could identify any of them. The delivery person was able to positively identify one of the petitioner's friends as the person who snatched the bag of food from him. He could not identify either the petitioner or the other occupant of the van as the masked man.
A few hours later, at approximately 2:25 a.m. on December 18, the petitioner gave a tape recorded statement to the police. The petitioner, who was seventeen years old at the time, admitted to the police that he was in the van when the food was ordered, but claimed that he stayed in the van while his two friends went for the food. He claimed that he did not know about the robbery until after his friends returned to the van.
The petitioner's eighteenth birthday was a little over one month later on January 31, 2009.
Through their investigation of the crime, the police and the prosecutor came to the conclusion that the petitioner was the masked man. In particular, the prosecutor told Attorney Dolan that at least one of the petitioner's friends identified the petitioner as the masked man. In addition, the police had seized two black masks from the van on which they had discovered enough DNA to try to match to petitioner and his friends. The police took a DNA sample from the petitioner, although no matching was completed by the time the petitioner entered his guilty plea.
When confronted about the DNA found on the mask, the petitioner told Attorney Dolan that the petitioner's DNA, and only the petitioner's DNA, would be on one of the masks. In addition, during the petitioner's guilty plea, when asked if the prosecutor's recitation of the facts was correct, the petitioner expressly stated: "Yes, I was wearing a mask, your Honor . . . Yes. I had the mask, your Honor." Resp. Ex. A, p. 9. When the court asked the petitioner if he, by his words or conduct, represented that he had a deadly weapon or a dangerous instrument, the petitioner said: "Yes, your Honor." Id., p. 10. When the court asked the petitioner if that was the truth, the petitioner twice said: "Yes." Id., pp. 10-11.
LEGAL STANDARD
"The principal purpose of the writ of habeas corpus is to serve as a bulwark against convictions that violate fundamental fairness . . . To mount a successful collateral attack on his conviction, a prisoner must demonstrate a miscarriage of justice or other prejudice and not merely an error which might entitle him to relief on appeal . . . In order to demonstrate such a fundamental unfairness or miscarriage of justice, the petitioner should be required to show that he is burdened by an unreliable conviction." (Citations omitted; internal quotation marks omitted.) Summerville v. Warden, 229 Conn. 397, 419, 641 A.2d 1356 (1994). Here, the petitioner claims that the ineffective assistance of his trial counsel has led to such a result. "A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction . . . has two components. First, the defendant must show that counsel's performance was deficient . . . Second, the defendant must show that the deficient performance prejudiced the defense . . . Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable." Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh. denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984).
"The first component, generally referred to as the performance prong, requires that the petitioner show that counsel's representation fell below an objective standard of reasonableness . . . In Strickland, the United States Supreme Court held that judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a petitioner to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable . . . 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 petitioner must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy . . . Counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment . . ." Henderson v. Commissioner of Correction, CT Page 21152 80 Conn.App. 499, 504-05, 835 A.2d 1036 (2003), cert. denied, 267 Conn. 918, 841 A.2d 1190 (2004).
As to the prejudice prong, "an error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment . . . The purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding. Accordingly, any deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution." Strickland v. Washington, supra, 691-92. Consequently, the petitioner must affirmatively show that his counsel's performance had an adverse impact on the defense. Id., 693. Put another way, in order to meet the prejudice prong the petitioner must prove that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id., 694.
Where, as in this case, the petitioner's conviction was the by-product of a guilty plea, the petitioner must show that but for the ineffective assistance of trial counsel, the petitioner would not have pled guilty, would have gone to trial, and likely would have achieved a better result. Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); Copas v. Commissioner, 234 Conn. 139, 162-67, 662 A.2d 718 (1995); Gray v. Warden, CV 09 400322, 2010 Ct.Sup. (LOIS) 19088 (Super.Ct., J.D. of Tolland, September 28, 2010) (Schuman, J.)
DISCUSSION I. Voluntariness of the Petitioner's Plea
The petitioner's first set of claims (2, 3, 6, 15, 16, 21, 29) all allege that the petitioner's plea was not knowing and voluntary either because he did not understand the plea canvass and process, presumably due to Attorney Dolan's inactions, or because he was pressured into entering the plea by Attorney Dolan's actions or inactions. The court will address each claim in turn.
Count 2 alleges that the petitioner was a Jamaican immigrant with no understanding of the law, lacking a clear understanding of the English language, and with no understanding of the law in relationship to the facts. The evidence presented proves otherwise. The petitioner moved to the United States when he was approximately 10 years old. Thus, by the time he entered his plea, he had been in this country for almost half of his life. He attended public schools in New Haven. By the time of his plea, the petitioner had graduated from high school and was in college. When entering his plea, he demonstrated no difficulty understanding English. During his testimony at the trial of this matter, less than two years after his guilty plea, the petitioner showed no difficulty understanding questions put to him in English or responding in English.
Furthermore, the petitioner's testimony that he did not understand all of the questions asked of him by the court during his plea canvass is inconsistent with the transcript of that canvass. The court fully explained to the petitioner the elements of robbery in the second degree, and the petitioner said that he understood the court's explanation. Then, as noted above, the transcript shows that the petitioner did more than simply answer yes or no to the court's questions about his involvement with the robbery. He explicitly represented twice that he was wearing a mask during the robbery. And after telling the court that he did not have a weapon, he confirmed twice that he represented through his action that he had one. Finally, when asked by the court if he understood all of the court's questions, the petitioner said, "Yes, your Honor." Resp. Ex. A, p. 11. Consequently, to the extent the petitioner is claiming that Attorney Dolan was ineffective for failing to insure that the petitioner understood the plea canvass, the claim is rejected. There was no evidence presented to show that Attorney Dolan had any reason to believe that the petitioner did not understand the questions the court asked or the nature of the proceedings.
To the extent the petitioner is claiming that, regardless of Attorney Dolan's conduct, his due process rights were violated because his plea was not knowing and voluntary he can fare no better. First, the respondent has raised a defense of procedural default which would apply to such a claim. The petitioner could have raised such a claim with the trial court prior to sentencing. And while the petitioner could have pled cause and prejudice in response to the defense, he has not. Consequently, the claim is procedurally defaulted. Even if it were not, for the reasons set forth above, the evidence proves that the petitioner's plea was knowing and voluntary.
In Count 3, the petitioner alleges that he was coerced by his attorney to plead guilty to a robbery he did not commit. The petitioner testified that Attorney Dolan told him that if his codefendants identified the petitioner as the masked man, he would be going to jail. He further testified that Attorney Dolan recommended that the petitioner plead guilty, and told the petitioner that he would regret going to trial. Finally, the petitioner testified that Attorney Dolan told him that if the petitioner pled guilty he would get probation, or at the most six months of incarceration.
On cross-examination, the petitioner admitted telling Attorney Dolan that the DNA on the ski mask could be his. He further admitted that the decision to plead guilty was his, which he did based on the advice of Attorney Dolan.
Attorney Dolan acknowledged during his testimony that he advised the petitioner to plead guilty. He further testified that, by bringing certain positive information to the attention of the prosecutor and the court, he was able to get both to move off an offer of four years of incarceration to an offer of two years of incarceration, with a right to argue for a lesser sentence. Attorney Dolan testified that he never promised a fully suspended sentence or only six months of incarceration. To the contrary, he testified that he told the petitioner that the court was unlikely to go below the proposed two years of incarceration.
Attorney Dolan's testimony is corroborated by the transcripts of the petitioner's plea proceedings. The court's offer of six years, execution suspended after two years, with a right to argue for less, was first discussed in open court on August 6, 2009 with both Attorney Dolan and the petitioner present. The transcript reflects that the court was concerned that certain individuals associated with the petitioner believed that the proposed disposition was racially motivated. Not surprisingly, the court was troubled by such an accusation and withdrew the offer to avoid any suggestion of racial bias. Instead, the petitioner's matter was placed on the firm jury trial list. Attorney Dolan, believing that the offer was a very good one, then made repeated attempts to preserve the offer for the petitioner. Ultimately, the court relented and passed the case so that the attorneys could discuss the matter further. In doing so, the court concluded the hearing by stating, "I don't want anything happening here which can be looked at [as] force or duress." Pet. Ex. 3, p. 5. The transcript also reflects that the court recounted its understanding that at least one of the co-defendants had identified the petitioner as the masked man. Id., p. 1. The transcript also reflects that the court viewed the proposed sentence as "very, very lenient." Id., p. 4.
The petitioner next appeared before the court two weeks later, on August 20, 2009, when he pled guilty and accepted the deal that had been previously offered. Before putting the petitioner to plea, the court told him: "you'll have the right to argue for less but the chance of you getting less are not good because two years in my opinion I think the State's Attorney was more than reasonable . . . So with that in mind knowing that when you do come back the chance that you're going to jail are like ninety-nine percent. Do you still want to plead guilty or not? Whatever you want to do is fine with me." Resp. Ex. A., p. 3. To which the petitioner responded: " Nah. I'm not gonna take it." (Emphasis added.) Id. After a recess, and an opportunity to discuss the matter further with his mother and Attorney Dolan, the petitioner decided to take the plea deal that was offered, returned to court and entered his guilty plea.
Prior to accepting the petitioner's plea, the court again told the petitioner that the recommended sentence was "six years suspended after two years followed by three years of probation." Id., p. 11. The court reiterated that Attorney Dolan would have the right to argue for a lesser sentence, but told the petitioner "not to be optimistic about that." Id. He then asked the petitioner if he understood that on his sentencing day he would be going to jail. The petitioner stated that he understood and still wanted to go forward with his guilty plea. Id.
After the court accepted the petitioner's plea, his mother asked the court what was going to happen when the petitioner returned to court. The court responded: "He's gonna go to jail . . . If I accept his guilty plea today your lawyer is gonna try to argue to get less than two years in jail. I'll listen but I'm saying not to be optimistic. But there's one thing for sure, he will be going to jail on October 30th." Id., p. 12. The court then immediately turned to the petitioner and asked: "Now, knowing that, do you want to keep your plea of guilty in, sir?" Id. The petitioner said: "Yeah." Id.
Based on this record, the petitioner's testimony that Attorney Dolan told him that the petitioner would get a fully suspended sentence or no more than six months of incarceration is just not credible. The petitioner clearly entered his plea with full knowledge and understanding that he, in all likelihood, was going to be sentenced to two years of incarceration.
Nor is there any evidence that Attorney Dolan coerced the petitioner in any way. There is no doubt that Attorney Dolan strongly recommended that the petitioner accept the offer made by the prosecutor and the court. He did so based upon his view of the facts and his view of the likely outcome of a trial. Providing such counsel is what lawyers do. The fact that the petitioner chose to accept that advice, and now for some reason wishes he had not, does not mean he was coerced. The claim as set forth in the petitioner's Count 3 is without merit.
To the extent the petitioner is also claiming that the advice itself was not reasonably competent, the petitioner's claim must fail. Based on the information available to Attorney Dolan at the time, including the likelihood that the petitioner would be matched by DNA evidence to at least one of the masks seized, and the fact that at least one of the co-defendants identified the petitioner as the masked man, Attorney Dolan's recommendation was more than reasonable.
In Count 6, the petitioner claims that Attorney Dolan "unwittingly duped" the petitioner into pleading guilty by telling the petitioner that a witness, Jerome Howard, had identified the petitioner as one of the robbers, even though that was not true. The petitioner presented absolutely no evidence in support of this claim. None of the witnesses called were asked about Howard. Nor was Howard called to testify. Therefore, this claim is rejected.
In Count 15, the petitioner alleges that Attorney Dolan was ineffective because he angered the trial court by incorrectly telling the judge that the petitioner and his family were accusing the court of racism and seeking the involvement of the NAACP. The petitioner claims that the resulting anger of the trial court frightened him into pleading guilty. The evidence is to the contrary. First, the transcript of August 6, 2009 shows that Attorney Dolan explicitly told the trial court that the petitioner and his mother were not the individuals raising the issue of race. Pet. Ex. 3, p. 5. In response, the court said, "I know he's not." Id. The court then gave the petitioner two weeks to consider the offer, specifically because he did not want the petitioner to do anything under duress.
The fact that the petitioner did not feel pressured by the trial court was confirmed on August 20, 2009, when, on his next court appearance, the petitioner first rejected the proposed plea agreement, then changed his mind after consulting with his mother and Attorney Dolan, outside the presence of the court. As noted above, the record also shows that the trial court gave the petitioner a chance to withdraw his plea after telling him that he was almost certainly going to jail for two years. Based on the evidence presented to the court, the claim that the petitioner felt pressured to plead guilty by the trial court's anger, which was brought about by Attorney Dolan's conduct, is utterly without merit.
In Count 16, the petitioner contends that Attorney Dolan further pressured the petitioner to plead guilty by contacting Family Alliance and persuading them to prevent Tyrone Weston from assisting the petitioner. The only evidence presented regarding Weston was that he worked for a community support group (presumably, Family Alliance) that the petitioner was going to; that he was at the petitioner's counsel table on August 6, 2009; and Attorney Dolan sensed some hostility from Weston. The petitioner presented no evidence that Attorney Dolan pressured anyone to exclude Weston from having involvement with the petitioner's case. Nor did the petitioner present any evidence that Weston was not involved, or what difference it would have made if he had been more involved. Consequently, this claim is rejected.
Count 21 for the most part restates the petitioner's claim in Count 2, with two refinements. First, he claims that his mother also did not understand the proceedings because of her unfamiliarity with English. Second, the petitioner claims that he and his mother should have been provided with an interpreter. This claim requires little discussion. First, as noted above, there is no evidence that the petitioner did not understand English or required an interpreter. Second, the petitioner was 18 years old when he entered his plea. He had no right to consult with his mother prior to entering his plea. She had no standing in the proceedings and had no right to an interpreter. The trial court, as a courtesy, permitted the petitioner's mother to stand with her son when he entered his plea. The court, also as a courtesy, took a recess to give the petitioner an opportunity to discuss his decision with his mother before entering his plea. Finally, the court asked the petitioner if he wanted to withdraw his plea after his mother expressed some surprise that the plea would result in the petitioner going to jail. The petitioner declined the court's offer. The court is unpersuaded by the petitioner's attempt to convert the trial court's courtesy into a claim that his rights were somehow violated.
In Count 29, the petitioner restates his claim in Count 16 regarding Tyrone Weston. He expounds on that claim by further alleging that as a result of Attorney Dolan's conduct, Weston was reprimanded by his supervisor, and consequently pressured the petitioner to plead guilty. There was no evidence submitted in support of this claim. It is therefore rejected.
II. Adequacy of Investigation
Counts 7, 9, 18 and 19 all allege, in one form or another, that Attorney Dolan was ineffective because he failed to conduct an adequate investigation. Once again, the petitioner has offered no evidence in support of these claims. In particular, the court was presented with no evidence as to what Attorney Dolan would have discovered had he done more of an investigation. Without such evidence, the petitioner can neither show that Attorney Dolan's performance was deficient, nor that he was in anyway prejudiced by the lack of further investigation. Consequently, each of these claims is rejected.
III. Conflict of Interest
In Count 13, the petitioner claims that he received ineffective assistance of counsel because Attorney Dolan's representation of him was compromised by a conflict of interest. In particular, the petitioner claims that Attorney Dolan had pending litigation against him and his firm which was brought by the petitioner's friend and court supporter, Deborah Willoughby. The petitioner claims that Attorney Dolan pressured him to plead guilty so that Attorney Dolan would not have to continue to interact with Willoughby. The petitioner claims that had he known about the dispute between Attorney Dolan and Willoughby, he would not have permitted Attorney Dolan to continue to represent him.
The following additional facts are relevant to this claim. On or about April 4, 2008, Delroy Reid sued a number of parties, including Dolan Luzzi, LLC. Reid lived with, and was in a relationship with, Willoughby at the time. Reid asserted various claims arising out of his purchase and financing of real estate in New Haven. The 18th Count of Reid's complaint alleged that Stuart Hawkins, an associate at Dolan Luzzi, committed legal malpractice when representing Reid in the real estate purchase. The 19th Count sought to hold Dolan Luzzi liable for Hawkins' actions. Attorney Dolan was a principal in Dolan Luzzi at the time. Reid settled the lawsuit with all of the defendants and withdrew his complaint on February 1, 2010.
When Willoughby learned that Attorney Dolan was representing the petitioner, she told the petitioner's mother that she thought Dolan was a bad lawyer. In addition, Reid told the petitioner's mother that he would not hire Attorney Dolan. The petitioner's mother testified that Willoughby told her, after the petitioner pled guilty, that Reid had sued Dolan.
Attorney Dolan saw Willoughby in court with the petitioner and his mother only after the state had made the plea offer that the petitioner ultimately accepted. Attorney Dolan knew that Willoughby was an advisor to the petitioner's family. He also knew Willoughby had a relationship with Reid. Prior to the petitioner entering his guilty plea, Willoughby showed hostility towards Attorney Dolan in court. There was no evidence as to whether Attorney Dolan ever discussed with the petitioner his dispute with Reid and Willoughby.
"`In a case of a claimed conflict of interest . . . in order to establish a violation of the sixth amendment the defendant has a two-pronged task. He must establish (1) that counsel actively represented conflicting interests and (2) that an actual conflict of interest adversely affected his lawyer's performance.' (Internal quotation marks omitted.) Phillips v. Warden, [ 220 Conn. 112, 133, 595 A.2d 1356 (1991)], quoting Cuyler v. Sullivan, [ 446 U.S. 335, 350, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980)]. `Where there is an actual conflict of interest, prejudice is presumed because counsel [has] breach[ed] the duty of loyalty, perhaps the most basic of counsel's duties. Moreover, it is difficult to measure the precise effect on the defense of representation corrupted by conflicting interests.' (Internal quotation marks omitted.) Phillips v. Warden, supra, 133, quoting Strickland v. Washington, 466 U.S. 668, 692, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Accordingly, an ineffectiveness claim predicated on an actual conflict of interest is unlike other ineffectiveness claims in that the petitioner need not establish actual prejudice. Phillips v. Warden, supra, 132-33.
"An actual conflict of interest is more than a theoretical conflict. The United States Supreme Court has cautioned that `the possibility of conflict is insufficient to impugn a criminal conviction.' Cuyler v. Sullivan, supra, 446 U.S. 350. A conflict is merely `a potential conflict of interest if the interests of the defendant may place the attorney under inconsistent duties at some time in the future.' (Emphasis in original; internal quotation marks omitted.) Santiago v. Commissioner of Correction, [ 87 Conn.App. 568, 589, 867 A.2d 70, cert. denied, 273 Conn. 930, 873 A.2d 997 (2005)], quoting United States v. Williams, 372 F.3d 96, 102 (2d Cir. 2004). `To demonstrate an actual conflict of interest, the petitioner must be able to point to specific instances in the record which suggest impairment or compromise of his interests for the benefit of another party . . . A mere theoretical division of loyalties is not enough.' (Citation omitted; emphasis in original; internal quotation marks omitted.) Santiago v. Commissioner of Correction, supra, 584. If a petitioner fails to meet that standard, for example, where only a potential conflict of interest has been established, prejudice will not be presumed, and the familiar Strickland prongs will apply . . . See id., 583 n. 14." (Footnote omitted.) Anderson v. Commissioner of Correction, 127 Conn.App. 538, 549-50, 15 A.3d 658, cert. granted, 301 Conn. 921, 22 A.3d 1280 (2011).
The petitioner has failed to prove an actual conflict of interests under this standard. Certainly, Attorney Dolan owed no duty to Willoughby that conflicted with his obligation to the petitioner. In fact, he owed no duty to Willoughby at all. Furthermore, Attorney Dolan's personal interest in his dispute with Willoughby does not constitute an actual conflict with his representation of the petitioner. The result might be different if the petitioner was suing Attorney Dolan. But that is not the case. The fact that Dolan may have been at odds with an unrelated advisor of the petitioner does not create an actual conflict. In addition, there is simply no evidence that Attorney Dolan rushed the petitioner into a guilty plea because he wanted to avoid future interaction with Willoughby. The petitioner's claim is nothing more than the product of speculation. As such, it is rejected.
IV. Immigration Consequences
The petitioner's last remaining claim, set forth in Count 12, is that Attorney Dolan failed to advise him of the immigration consequences of his plea. The following additional facts are relevant to this claim. Having been born in Jamaica, the petitioner was at risk of deportation back to that country if he was convicted of certain offenses. The crime to which the petitioner pled guilty, robbery in the second degree, is a deportable offense, and one that would likely result in his deportation. After the petitioner was sentenced, an immigration detainer was lodged against him, and he currently faces deportation.
The petitioner and his mother both testified that Attorney Dolan never discussed the possibility of deportation with them. The petitioner also testified that at the time of his plea he did not understand that he could be deported. Attorney Dolan testified that he knew the petitioner was not a United States citizen and did not have permanent resident status. Consequently, Attorney Dolan knew that the petitioner could be deported. Attorney Dolan testified that he discussed the immigration consequences of a conviction with the petitioner. He also testified that he told the petitioner that robbery in the second degree was a deportable offense, although he did not definitively say that the petitioner would be deported. Nevertheless, given what he perceived to be the strength of the state's case, he told the petitioner that it was better to plead guilty and get deported after two years of incarceration, rather than risk going to trial and getting deported after a much longer sentence.
When the petitioner entered his guilty plea, the court specifically asked the petitioner if he understood that his conviction could lead to his deportation. The petitioner responded: "Yes, your Honor." Resp. Ex. A, p. 7. The court then asked the petitioner if he wanted more time to talk to Attorney Dolan about the "immigration waiver." Id. The petitioner responded: "No, your Honor." Id. The petitioner testified before this court that he did not hear the trial court's first question about immigration, but did remember turning down the court's offer for more time to discuss the immigration issue with Attorney Dolan.
The United States Supreme Court recently held that the failure of trial counsel to advise a defendant of the immigration consequences of a guilty plea, when that plea will likely result in the deportation of the defendant, constitutes ineffective assistance of counsel under the first prong of Strickland. Padilla v. Kentucky, 130 S.Ct. 1473 (2010). If a petitioner establishes that he was not properly advised as required in Padilla, he must then establish prejudice under the second prong of Strickland and Hill. See, e.g., Colas v. Warden, 2011 Ct.Sup (LOIS) 7269 (Super.Ct., J.D. of Tolland, March, 17, 2011) (Mullarkey, J.)
The petitioner has failed to prove either deficient performance or prejudice. As to the first prong of Strickland, the court finds Attorney Dolan's testimony on this issue to be the most credible. The court believes that Attorney Dolan told the petitioner that he was facing a deportable offense. This testimony is corroborated by the court's canvass of the petitioner. The petitioner and his mother were told by the trial court that the petitioner faced deportation. The court even asked the petitioner if he wanted more time to discuss the issue with Attorney Dolan. The petitioner said no. Based on these facts, the testimony of the petitioner and his mother that they did not understand that the petitioner could be deported is just not credible.
As to the prejudice prong of Strickland and Hill, the petitioner has offered no credible evidence that had he known of the risk of deportation he would not have pled guilty. To the contrary, when told by the court about the risk of deportation, and given a clear opportunity to halt the plea process, the petitioner pressed ahead with his plea. Nor has the petitioner offered any credible evidence that had he gone to trial he likely would have achieved a better result than he did through his plea. The petitioner was at the scene of the robbery. His DNA, by his own admission to Attorney Dolan, was likely on one of the masks seized. At least one of the petitioner's co-defendants identified the petitioner as the masked man. The petitioner has presented no evidence from which this court can conclude that there was a reasonable probability that, had the petitioner not pled guilty and gone to trial, he would have been acquitted and not facing deportation. Because the petitioner has not met his burden on this claim, it is rejected.
CONCLUSION
For all the foregoing reasons, the petition is DENIED.