Stephenson v. Comm'r of Corr.

Decision Date28 April 2020
Docket NumberAC 41812
Citation231 A.3d 210,197 Conn.App. 172
CourtConnecticut Court of Appeals
Parties Joseph STEPHENSON v. COMMISSIONER OF CORRECTION

Vishal K. Garg, for the appellant (petitioner.)

James M. Ralls, assistant state's attorney, with whom, on the brief, were Richard J. Colangelo, Jr., state's attorney, Juliana Waltersdorff, assistant state's attorney, and Michael Proto, senior assistant state's attorney, for the appellee (respondent).

Alvord, Devlin and Norcott, Js.

Opinion

ALVORD, J.

The petitioner, Joseph Stephenson, appeals from the judgment of the habeas court dismissing, as moot, his petition for a writ of habeas corpus. The court dismissed the petition, which alleged that the petitioner's trial counsel had rendered ineffective assistance by inaccurately advising him about the consequences of pleading guilty under federal immigration law, because the petitioner's ordered removal from the United States rests, in part, on a conviction that he did not challenge in his habeas petition. On appeal, the petitioner claims that the court improperly dismissed his petition as moot, arguing that (1) "deportation—not a deportation order—is the triggering event that renders a case moot, and that a case does not become moot until [the] petitioner is actually physically removed from the United States," and (2) "collateral consequences other than immigration exist and will continue to exist until the petitioner's actual physical removal from the United States." We agree with the petitioner's second argument and, thus, reverse the judgment of the court.1

The following undisputed facts and procedural history are relevant to this appeal. The petitioner is a citizen of Jamaica, which is his country of origin. On or about December 20, 1985, the petitioner was admitted to the United States under nonimmigrant B-2 status. On February 14, 2000, the petitioner's immigration status was changed to that of a lawful permanent resident.

On March 5, 2013, the petitioner pleaded guilty to charges of larceny in the fifth degree, in violation of General Statutes § 53a-125a in one docket, and larceny in the sixth degree, in violation of General Statutes § 53a-125b in a second docket (larceny convictions).2 On April 9, 2013, the petitioner was sentenced to two concurrent 364 day terms of imprisonment on the larceny convictions.3 The concurrent 364 day sentences were negotiated by James Lamontagne, the petitioner's counsel, and the prosecutor in an effort by Attorney Lamontagne to alleviate any adverse consequences that the petitioner might encounter under federal immigration law as a result of the larceny convictions.

On July 9, 2013, the United States Department of Homeland Security (department) charged the petitioner "as removable pursuant to [the Immigration and Nationality Act, 8 U.S.C. § 1227 (a) (2) (A) (ii) (2012) ] based on [the] larceny convictions." Subsequently, on January 21, 2014, the department further charged the petitioner "as removable pursuant to [ 8 U.S.C. § 1227 (a) (2) (A) (iii) (2012) ], as an aggravated felon" for a prior conviction of robbery in the third degree (robbery conviction).4 In a decision dated July 22, 2014, the immigration judge concluded that the larceny convictions constituted crimes of moral turpitude under 8 U.S.C. § 1227 (a) (2) (A) (ii), and that the robbery conviction was an aggravated felony under 8 U.S.C. § 1227 (a) (2) (A) (iii). On the basis of these conclusions, the immigration judge ordered that the petitioner be removed from the United States to Jamaica. On December 15, 2014, the Board of Immigration Appeals (board) "affirm[ed] that the [petitioner] ha[d] been convicted of an aggravated felony for the reasons given in the [i]mmigration [j]udge's decision" and, accordingly, dismissed his appeal. Because the board affirmed the immigration judge's determination that the robbery conviction was an aggravated felony, it concluded that it "need not address whether the [petitioner] [w]as also ... convicted of crimes involving moral turpitude."

On September 25, 2013, while in custody serving his concurrent 364 day sentences and shortly after the department charged him as removable, the petitioner filed a self-represented petition for a writ of habeas corpus seeking to vacate the larceny convictions.5 On January 2, 2018, the petitioner, now represented by counsel, filed an amended petition for a writ of habeas corpus (operative petition). In the operative petition, the petitioner alleged that Attorney Lamontagne rendered ineffective assistance of counsel. Specifically, the petitioner alleged that Attorney Lamontagne's failure to accurately advise him that pleading guilty to the larceny charges against him would make him "deportable, removable, and inadmissible for reentry under federal immigration law," constituted deficient performance.6 The petitioner further alleged that, but for Lamontagne's deficient performance, "[t]here [wa]s a reasonable probability that ... [he] would not have entered a guilty plea."

On May 22, 2018, a trial on the operative petition was held before the court, Sferrazza, J . On May 29, 2018, Judge Sferrazza issued a memorandum of decision in which he held that the operative petition was moot. Judge Sferrazza found that the immigration judge had concluded that the robbery conviction constituted an aggravated felony and had ordered the petitioner's removal, in part, on that basis. Judge Sferrazza found that the petitioner did not challenge the robbery conviction in the operative petition. He further found that, on appeal, the board affirmed both the immigration judge's aggravated felony conclusion and order of removal. Accordingly, Judge Sferrazza concluded that his adjudication of the petitioner's claim "can provide no practical benefit to [him] because the mandated removal order, affirmed on appeal, is premised on an entirely different conviction for an aggravated felony, apart from [the] larceny convictions" that were challenged in the operative petition.7 The petitioner filed a petition for certification to appeal, which Judge Sferrazza granted. This appeal followed.

I

In his principal brief, the petitioner claims that the court improperly dismissed, as moot, the operative petition, alleging that Attorney Lamontagne provided ineffective assistance by inaccurately advising him about the consequences under federal immigration law of pleading guilty to his larceny charges, because (1) "a case does not become moot until [the] petitioner is actually physically removed from the United States," as opposed to being ordered removed, and (2) "collateral consequences other than immigration exist and will continue to exist until the petitioner's actual physical removal from the United States."8

With respect to his first argument, the petitioner asserts that by dismissing his claim, as moot, the court "improperly extended Connecticut's mootness jurisprudence." Specifically, the petitioner asserts that, under State v. Aquino , 279 Conn. 293, 901 A.2d 1194 (2006), a claim "challenging a conviction may be rendered moot once the person challenging the conviction has been deported from the United States," but that "[n]o ... court ... has extended the Aquino doctrine to conclude that mootness occurs before deportation." The petitioner further contends that, "[a]lthough there exists a separate basis for [his] removal, [he] is currently challenging the [robbery] conviction underlying that basis in a federal proceeding. Were [he] to be successful in that challenge, a decision vacating his larceny convictions would provide him with practical immigration relief. ... Accordingly, there is a reasonable possibility that a favorable decision in this case would provide [him] with practical relief."9 In response, the respondent, the Commissioner of Correction (commissioner), argues that, "[w]hether [the] petitioner has been deported due to the [robbery conviction], whether he will be once released from state incarceration, or whether deportation proceedings will commence hereafter, the fact remains that reversing the [larceny convictions] here will have no effect on deportability."

As to his second argument, the petitioner asserts that "[p]rior to being deported, [he] is likely to suffer a litany of collateral consequences that result from the [larceny] convictions," including adverse effects on his inmate level and eligibility for programs and parole while in the commissioner's custody, on his standing in the community, and in seeking future job opportunities. According to the petitioner, therefore, "these prejudicial collateral consequences would be alleviated in the event that the ... larceny convictions were vacated." In response, the commissioner argues that, "given [the] petitioner's lengthy prior record, including his six prior larcenies, two prior adjudications as a persistent larceny offender and his robbery conviction ... [he] cannot show a reasonable possibility that the [larceny convictions] here will have any measureable effect."

Following oral argument before this court, we ordered, sua sponte, that the parties provide supplemental briefing to address the following questions: "(1) Whether the petition for a writ of habeas corpus is moot in light of St. Juste v. Commissioner of Correction , 328 Conn. 198, 218, (2018), which held that ‘in the absence of evidence of a crime of moral turpitude that would serve as a permanent bar from reentering this country , we conclude that [the challenged conviction] gives rise to a reasonable possibility of prejudicial collateral consequences—namely, his deportation and a barrier to reentry.’ ... See also Wala v. Mukasey , 511 F.3d 102 (2d Cir. 2007) (holding that, under modified categorical approach, record of conviction did not necessarily support [board's] finding that petitioner had intent of permanent taking pursuant to Connecticut larceny statute, General Statutes § 53a-119, required to hold that petitioner had...

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