Ajadi v. Commissioner of Correction, No. 17497.

• Decision Date: 28 November 2006
• Docket Number: No. 17497.
• Court: Connecticut Supreme Court
• Parties: Rafiu Abimbola AJADI v. COMMISSIONER OF CORRECTION.

Page 712

911 A.2d 712

280 Conn. 514

Rafiu Abimbola AJADI v. COMMISSIONER OF CORRECTION.

No. 17497.

Supreme Court of Connecticut.

Argued March 8, 2006.

Decided November 28, 2006.

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Kent Drager, senior assistant public defender, for the appellant (petitioner).

Timothy J. Sugrue, senior assistant state's attorney, with whom, on the brief, were David I. Cohen, state's attorney, and Tiffany Lockshier, assistant state's attorney, for the appellee (respondent).

SULLIVAN, C.J., and BORDEN, KATZ, PALMER and VERTEFEUILLE, Js.^*

SULLIVAN, C.J.

The petitioner, Rafiu Abimbola Ajadi,¹ appeals² following the denial of his petition for certification to appeal from the judgment of the habeas court dismissing his petition for a writ of habeas corpus. The petitioner claims on appeal that the habeas court: (1) committed plain error when the habeas judge failed to disqualify himself in violation of canon 3(c)(1)(B) of the Code of Judicial Conduct;³ (2) improperly dismissed his petition for a writ of habeas corpus for lack of subject matter jurisdiction because the petitioner was not in "custody" within the meaning of General Statutes § 52-466⁴ when his habeas petition was filed; and (3) improperly failed to construe his petition for a writ of habeas corpus as a writ of error coram nobis. We affirm the judgment of the habeas court.

The record reveals the following relevant facts and procedural history. The petitioner is a citizen of Nigeria who entered the United States as a visitor in 1991, and became a lawful permanent resident on September 8, 1994. Abimbola v. Ashcroft, 378 F.3d 173, 174 (2d Cir.2004), cert. denied sub nom. Abimbola v. Gonzales, ___ U.S. ___, 126 S.Ct. 734, 163 L.Ed.2d 577 (2005). On July 10, 1995, in the judicial district of Stamford-Norwalk, geographical area number one, located in the city of Stamford, the petitioner pleaded guilty to two counts of credit card fraud in violation of General Statutes § 53a-128d (Stamford conviction). The petitioner received a total effective sentence of two years incarceration, execution suspended, and three years probation. Thereafter, on November 5, 1997, in the judicial district of Stamford-Norwalk, geographical area number twenty, located in the city of Norwalk, the petitioner pleaded guilty pursuant to the Alford doctrine⁵ to one count of larceny in the third degree in violation of General Statutes § 53a-124. The petitioner was not sentenced at that time, and the matter was continued to December 2, 1997. When the petitioner failed to appear on December 2, the court ordered his rearrest. On May 7, 1999, the petitioner again pleaded guilty to larceny in the third degree and received a sentence of one year incarceration (Norwalk conviction). At the same proceeding, the petitioner also pleaded guilty to failure to appear in the first degree in violation of General Statutes § 53a-172, and was sentenced to one year incarceration to run concurrent to his larceny sentence.

Meanwhile, on February 24, 1997, the petitioner pleaded guilty in the Eastern District of New York to bank fraud in violation of 18 U.S.C. § 1344. Abimbola v. Ashcroft, supra, 378 F.3d at 174. "In June 1999, based on the federal conviction, the Immigration and Nationalization Service [INS]⁶ served [the petitioner] with a notice to appear. The INS sought [the petitioner's] removal pursuant to § 237(a)(2)(A)(iii) of the Immigration and Nationality Act [INA], 8 U.S.C. § 1227(a)(2)(A)(iii), for an aggravated felony conviction as defined under INA § 101(a)(43)(G) [and] 8 U.S.C. § 1101(a)(43)(G)...."⁷ Abimbola v. Ashcroft, supra, at 174. On June 19, 2000, the commissioner of correction (commissioner), paroled the petitioner into the physical custody of the INS. On October 5 2000, the petitioner, who had served fully the sentences for both his Stamford and Norwalk convictions, was discharged from parole.

Thereafter, on October 30, 2000, the INS amended the notice to appear by adding the petitioner's Norwalk conviction as a basis for his removal. Specifically, the INS claimed that larceny in the third degree in violation of § 53a-124 is an aggravated felony as defined by INA § 1101(a)(43)(G). Abimbola v. Ashcroft, supra, 378 F.3d at 174. Meanwhile, during July, 2000, a series of removal hearings had begun before an immigration judge in Oakdale, Louisiana. Abimbola v. Ashcroft, United States District Court, Docket No. 01-CV-5568, 2002 WL 2003186, 2002 U.S. Dist. Lexis 16219 (E.D.N.Y. August 28, 2002). During these hearings, it came to light that the petitioner's appeal of his federal bank fraud conviction was still pending. Accordingly, in December, 2000, the INS withdrew the charge of removability based on that conviction.⁸ Id.; see also Abimbola v. Ashcroft, supra, 378 F.3d at 174. On June 22, 2001, the immigration judge found the petitioner removable as an aggravated felon based on his Norwalk conviction, and ordered him removed to Nigeria. Abimbola v. Ashcroft, supra, 378 F.3d at 174. The board of immigration appeals dismissed the petitioner's appeal from the judgment of the immigration judge.⁹ Id., at 175. The petitioner currently is in the physical custody of the Department of Homeland Security; see footnote 6 of this opinion; and is being held at the Etoawh County Detention Center in Gadsen, Alabama, pending his removal.¹⁰ Abimbola v. Ridge, United States District Court, Docket No. 3:04CV856, 2005 WL 588769, 2005 U.S. Dist. Lexis 3699 (D.Conn. March 7, 2005).

On April 20, 2004, the petitioner filed the present second amended petition for a writ of habeas corpus.¹¹ The petition alleges, in relevant part, that the petitioner received ineffective assistance of counsel in connection with both his Stamford and Norwalk convictions because his attorneys: (1) failed to research adequately the immigration consequences of his convictions; (2) failed to advise the petitioner that his convictions could lead to deportation; (3) failed to negotiate an agreement with the state to reduce the charges; (4) failed to advise the petitioner to decline to plead guilty and to take his case to trial; (5) failed to advise the petitioner, following the imposition of his sentence, that he might be entitled to withdraw his guilty plea pursuant to General Statutes § 54-1j because the trial court improperly had informed the petitioner of the immigration consequences of his plea; and (6) affirmatively misadvised the petitioner that his guilty pleas would not expose him to adverse immigration consequences.

The commissioner moved to dismiss the petition for lack of subject matter jurisdiction. Specifically, the commissioner claimed that the petitioner was not in "`custody'" within the meaning of § 52-466 because the petitioner's sentences for his Stamford and Norwalk convictions had expired completely by the time he filed his petition for a writ of habeas corpus. The habeas court, White, J., held a brief hearing on the commissioner's motion and, thereafter, dismissed the petition for lack of subject matter jurisdiction. The court concluded that "[t]he petition in this case was filed after the petitioner's underlying sentence expired. Because the petitioner was not in custody for the underlying conviction when he filed his petition, this court lacks jurisdiction to hear his claims. The petition is dismissed. See Ford v. Commissioner of Correction, 59 Conn.App. 823 (2000) and [Practice Book § ]23-29(2)." The petitioner subsequently petitioned for certification to appeal from the judgment of the habeas court. The habeas court denied the petition for certification to appeal, and this appeal followed.

During the pendency of the present appeal, the petitioner, who was not present at the hearing on the motion to dismiss, discovered the identity of the habeas judge.¹² The petitioner thereafter informed his appellate counsel that the habeas judge previously had served as his attorney with respect to plea negotiations for his Norwalk conviction.¹³ It is undisputed that neither Judge White, the petitioner nor counsel for the parties previously realized that Judge White formerly had represented the petitioner with respect to one of the criminal convictions underlying the petition for a writ of habeas corpus.

On appeal, the petitioner claims that Judge White improperly failed to disqualify himself in violation of canon 3(c)(1)(B) of the Code of Judicial Conduct and Practice Book § 1-22(a)¹⁴ because he had "served as [a] lawyer in the matter in controversy...." The petitioner further claims that Judge White's improper participation in the present case constitutes plain error that neither can be waived nor remitted by the parties. Alternatively, if this court reaches the propriety of the habeas court's rulings, the petitioner claims that the habeas court: (1) abused its discretion in denying his petition for certification to appeal because "the purely legal issues presented [therein were] nonfrivolous matters of first impression in Connecticut and [were] matters about which there is at least a split of authority in other jurisdictions"; and (2) improperly concluded that the petitioner was not in custody when he filed his habeas petition. With respect to the latter claim, the petitioner contends that he was in custody pursuant to Garlotte v. Fordice, 515 U.S. 39, 45-46, 115 S.Ct. 1948, 132 L.Ed.2d 36 (1995), because his current confinement is part of a continuous stream of custody, and reversal of his underlying criminal conviction will advance his release date. Alternatively, the petitioner contends that he was in custody pursuant to Lackawanna County District Attorney v. Coss, 532 U.S. 394, 121 S.Ct. 1567, 149 L.Ed.2d 608 (2001), because the present case is one of those "`rare cases in which no channel of review was actually available to a [petitioner] with respect to a prior conviction, due to no fault of his own.' Daniels [v. United States, 532 U.S. 374,...