Judicial District of Tolland


†††† †Habeas; Ineffective Assistance of Counsel; Whether Habeas Court Properly Vacated Conviction Because Attorney did not Adequately Advise Petitioner as to Immigration Consequences of Guilty Plea.† The petitioner, a Polish national, pleaded guilty to possession of narcotics with intent to sell.† He brought this habeas action alleging that his attorney rendered ineffective assistance in failing to advise him adequately of the immigration consequences of his plea in accordance with Padilla v. Kentucky, 599 U.S. 356 (2010), which held that an attorney has a duty to provide a defendant with available information about the possible deportation consequences of a guilty plea.† The habeas court granted the petition, concluding that under Padilla, the petitioner's attorney was required to advise him that because possession of narcotics with intent to sell is an aggravated felony under federal immigration law, he would be subject to mandatory deportation if he pleaded guilty to the charge.† It found that the petitioner's attorney failed to advise him that his guilty plea subjected him to mandatory deportation and that the petitioner was prejudiced as a result because had he been aware of that information, he likely would have rejected the plea agreement and such a decision would have been rational under the circumstances.† The Commissioner of Correction appeals, arguing that petitioner's attorney did advise him that his plea would necessarily result in deportation and that, even if the attorney failed to do so, Padilla did not establish an inflexible constitutional standard requiring an attorney to provide an advisement in every drug case that a defendant will, with absolute certainty, be deported upon conviction.† The commissioner claims that Padilla requires an attorney to inform a defendant only as to the risk of deportation, not as to its certainty, and that here the petitioner's attorney adequately advised him of that risk.† Finally, the commissioner argues that the habeas court applied the wrong standard in determining whether the petitioner was prejudiced by his attorney's performance and that, had the proper standard been applied, the petitioner would not have been able to establish prejudice.† The commissioner claims that the proper test is an objective one that requires the petitioner to demonstrate that, but for the attorney's errors, he would have pleaded not guilty and gone to trial.† The commissioner contends that that the habeas court improperly focused on the petitioner's subjective testimony and on whether the petitionerís decision to reject a plea bargain was rational under the circumstances.†