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JOSE GUERRA v. STATE OF CONNECTICUT
(AC 34876)
Beach, Bear and Sheldon, Js.*
Argued March 20—officially released May 6, 2014
(Appeal from Superior Court, judicial district of
Danbury, Pavia, J.)
Kai W. De Graaf, pro hac vice, and A. Manuel Nieves,
for the appellant (petitioner).
Matthew A. Weiner, deputy assistant state’s attorney,
with whom, on the brief, were Stephen J. Sedensky
III, state’s attorney, and Emily Graner Sexton, special
deputy assistant state’s attorney, for the appellee
(state).
Opinion
SHELDON, J. The petitioner, Jose Guerra, appeals
from the judgment of the habeas court dismissing his
petition for a writ of habeas corpus for lack of subject
matter jurisdiction on the ground that he was no longer
in custody pursuant to his challenged judgment of con-
viction at the time he filed his petition. For the following
reasons, we disagree, and thus affirm the judgment of
the habeas court.
The petitioner’s claim before the habeas court was
that he was not provided with effective assistance of
counsel in connection with his plea of guilty to the
charge of assault in the first degree in violation of Gen-
eral Statutes § 53a-59 (a) (4). He claims, in particular,
that his defense lawyer rendered ineffective assistance
in connection with the guilty plea by failing to advise
him adequately of the immigration consequences of the
plea and resulting conviction, more particularly, that
he was nearly certain to be deported as a result of that
plea and conviction.1
This case arises against the background of the follow-
ing factual and procedural history, as previously
described by this court in affirming the dismissal of
the petitioner’s earlier motion to vacate his challenged
conviction. ‘‘The [petitioner] is a citizen of Guatemala
who was involved in a physical altercation outside of
a bar in Danbury on August 24, 2002. He thereafter was
charged with assault in the first degree in violation of
General Statutes § 53a-59 (a) (4). Pursuant to a plea
agreement, the [petitioner] on March 17, 2003, pleaded
guilty to that count. At that time, the court canvassed
the [petitioner] concerning his plea, during which the
[petitioner] indicated that he had been provided enough
time to talk to his trial counsel about both his case and
his decision to accept the plea offer. When asked by
the court if he was satisfied with his counsel’s represen-
tation in this proceeding, the [petitioner] answered,
‘Absolutely. Yes.’ The court later stated: ‘You should
also be aware of the fact if you’re not a citizen of the
United States, conviction of the offenses with which
you have been charged may have the consequence of
deportation, exclusion from admission to the United
States, or denial of naturalization, all pursuant to the
laws of the United States of America. Do you under-
stand that?’ The [petitioner] responded affirmatively.
Following the canvass, the court accepted the plea as
‘knowingly and voluntarily made with the assistance of
competent counsel . . . .’
‘‘The matter was continued to March 27, 2003, to
afford the victim of the assault the opportunity to review
the terms of the plea. At the outset of the proceeding
on that date, counsel for the [petitioner] stated to the
court: ‘Your Honor, only just for the record, I would
indicate that I’ve spoken to [the petitioner]. I’ve gone
over with him for the second time any possible immigra-
tion problems that he might have. He understands them
as it was treated at the canvass . . . .’ The court asked
the [petitioner] if he wanted to speak, to which the
[petitioner] replied, ‘No, the only thing I got to say is
sorry . . . for everything.’ The court then sentenced
the [petitioner], consistent with the terms of his plea
agreement, to five years’ incarceration, execution sus-
pended, and five years of probation.’’ State v. Guerra,
132 Conn. App. 62, 63–64, 31 A.3d 68 (2011), cert. denied,
303 Conn. 923, 34 A.3d 395 (2012). The petitioner began
serving his five year term of probation on March 27,
2003, and completed his probation on March 27, 2008.
On November 30, 2011, the petitioner filed the present
petition for a writ of habeas corpus, alleging ineffective
assistance of counsel, as aforesaid, in connection with
his guilty plea to assault in the first degree. On June
20, 2012, the habeas court dismissed his petition, ruling,
under Ajadi v. Commissioner of Correction, 280 Conn.
514, 540–41, 911 A.2d 712 (2006), that the court lacked
subject matter jurisdiction over the petition because
the petitioner was no longer ‘‘in custody’’ pursuant to his
challenged conviction at the time he filed his petition, as
required by General Statutes § 52-466.2 On July 10, 2012,
the court granted the petition for certification to file
the present appeal.
On appeal, the petitioner claims that, in light of the
United States Supreme Court’s recent decision in Padi-
lla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L.
Ed. 2d 284 (2010), the habeas court improperly dis-
missed his petition for lack of subject matter jurisdic-
tion on the ground that he was no longer in custody
on his challenged conviction at the time he filed his
petition. Padilla held that before an alien criminal
defendant pleads guilty to a criminal offense for which
he is subject to deportation, his defense attorney must
advise him of the deportation consequences of his plea
and resulting conviction. On that score, the Supreme
Court concluded that because deportation is such a
great, life-altering consequence of a criminal conviction,
an alien defendant’s plea of guilty to a deportable
offense without knowledge of that consequence cannot
be considered a knowing and intelligent waiver of his
right not to be convicted of that offense unless his guilt
is established beyond a reasonable doubt at a full, fair
adversary trial.3 The petitioner claims not only that his
trial counsel was ineffective, under the rule of Padilla,
in failing to advise him properly of the deportation
consequences of the guilty plea to assault in the first
degree, but that the logic of that rule supports his right
to seek habeas corpus relief from the conviction of an
offense that could result in deportation, whether or not
he is still in formal custody pursuant to his conviction
for that offense, as long as he remains exposed to depor-
tation by reason of that conviction. On that basis, the
petitioner argues that the habeas court’s dismissal of
his petition for lack of subject matter jurisdiction on
the ground that he was no longer ‘‘in custody’’ when
he filed his petition was incorrect as a matter of law.
The state argues, in response to the foregoing claims,
that the petitioner has misconstrued Padilla and misap-
plied its holding to this case. On the question of jurisdic-
tion, it argues, as a threshold matter, that Padilla did
not even address, much less attempt to alter or elimi-
nate, the custodial requirement for the exercise of
habeas corpus jurisdiction. Hence, it claims, although
the court in Padilla recognized that an alien defendant’s
exposure to deportation as a result of a criminal convic-
tion is such a significant consequence of a criminal
conviction as to require defense counsel to warn him
of such exposure before he pleads guilty to an offense
that could result in deportation, it did not hold that a
defendant who is exposed to deportation by reason of
such a conviction thereby remains in custody, for the
purpose of invoking habeas corpus jurisdiction, even
after his sentence has expired. On the merits of the
petitioner’s claim, moreover, the state argues both that
Padilla, which was decided after the petitioner’s chal-
lenged guilty plea was entered, has been held not to
apply retroactively4 and that even if it did apply retroac-
tively, the record before the habeas court clearly shows
that the petitioner was advised properly about the
deportation consequences of his challenged plea. We
agree with the state on its jurisdictional challenge, and
thus affirm the judgment of the habeas court without
reaching the merits of the petitioner’s constitutional
challenge to his plea.
‘‘We have long held that because [a] determination
regarding a trial court’s subject matter jurisdiction is a
question of law, our review is plenary. . . . Moreover,
[i]t is a fundamental rule that a court may raise and
review the issue of subject matter jurisdiction at any
time. . . . Subject matter jurisdiction involves the
authority of the court to adjudicate the type of contro-
versy presented by the action before it. . . . [A] court
lacks discretion to consider the merits of a case over
which it is without jurisdiction . . . . The subject mat-
ter jurisdiction requirement may not be waived by any
party, and also may be raised by a party, or by the court
sua sponte, at any stage of the proceedings, including
on appeal. . . . Indeed, [i]t is axiomatic that once the
issue of subject matter jurisdiction is raised, it must
be immediately acted upon by the court.’’ (Citations
omitted; internal quotation marks omitted.) Ajadi v.
Commissioner of Correction, supra, 280 Conn. 532–33.
‘‘Subject matter jurisdiction for adjudicating habeas
petitions is conferred on the Superior Court by General
Statutes § 52-466, which gives it the authority to hear
those petitions that allege illegal confinement or depri-
vation of liberty.’’ (Footnote omitted.) Abed v. Commis-
sioner of Correction, 43 Conn. App. 176, 179, 682 A.2d
558, cert. denied, 239 Conn. 937, 684 A.2d 707 (1996).
Our Supreme Court, in Lebron v. Commissioner of Cor-
rection, 274 Conn. 507, 526, 876 A.2d 1178 (2005), noted
that ‘‘the history and purpose of the writ of habeas
corpus establish that the habeas court lacks the power
to act on a habeas petition absent the petitioner’s alleg-
edly unlawful custody.’’ In order to satisfy the custody
requirement of § 52-466, the petitioner must ‘‘be in cus-
tody on the conviction under attack at the time the
habeas petition is filed . . . .’’ McCarthy v. Commis-
sioner of Correction, 274 Conn. 557, 562, 877 A.2d 758
(2005). ‘‘[A] petitioner whose conviction has expired
fully prior to the filing of a habeas petition is not in
‘custody’ on that conviction within the meaning of § 52-
466, despite the alleged existence of collateral conse-
quences flowing from that conviction.’’ Lebron v. Com-
missioner of Correction, supra, 530.
Contrary to the petitioner’s argument that the habeas
court’s dismissal of his petition was incorrect as a mat-
ter of law in light of the holding in Padilla, that case
did not even address, much less alter or eliminate, the
requirement of custody for invoking habeas corpus
jurisdiction. Nor did it address, much less liberalize,
the rule that collateral consequences of a conviction,
however significant or substantial, are insufficient to
satisfy the custodial requirement. Accordingly, our
jurisprudence still requires, as our Supreme Court
declared in Ajadi v. Commissioner of Correction,
supra, 280 Conn. 538, that for a petitioner to invoke the
subject matter jurisdiction of the habeas court over a
challenged criminal conviction, he must still be in cus-
tody pursuant to that conviction, ‘‘suffer[ing] [a] present
restraint [there]from,’’ at the time he files his petition.
Id. (‘‘Although the custody requirement has been con-
strued liberally . . . it has never been extended to the
situation where a habeas petitioner suffers no present
restraint from a conviction. . . . Such an interpreta-
tion would mean that a petitioner whose sentence has
completely expired could nonetheless challenge the
conviction for which it was imposed at any time through
a state petition for habeas corpus and would read the
in custody requirement out of the statute.’’ [Emphasis
in original; footnote omitted; internal quotation
marks omitted.]).
Because Padilla did not eliminate the custodial
requirement for habeas corpus jurisdiction, we turn to
whether the petitioner has satisfied this requirement.5
We conclude that he has not.6 The petitioner ceased
suffering any present restraint from his challenged con-
viction, and thus was no longer in custody pursuant
thereto, when his sentence expired upon the comple-
tion of his probation on March 27, 2008. The petitioner,
however, did not file his petition for a writ of habeas
corpus until more than three years later, on November
30, 2011. The fact that the petitioner, a citizen of Guate-
mala, still was exposed to deportation proceedings as
a result of his challenged conviction at the time he filed
his petition did not render him in custody pursuant to
that conviction for the purposes of establishing the
jurisdiction of the habeas court. ‘‘[O]nce the sentence
imposed for a conviction has completely expired, the
collateral consequences of that conviction are not them-
selves sufficient to render an individual ‘in custody’ for
the purposes of a habeas attack upon it.’’ Maleng v.
Cook, 490 U.S. 488, 492, 109 S. Ct. 1923, 104 L. Ed.
2d 540 (1989); Lebron v. Commissioner of Correction,
supra, 274 Conn. 530 (‘‘our courts have never held that
the collateral consequences of a conviction that expired
before the habeas petition was filed are sufficient to
render a petitioner in ‘custody’ on the expired convic-
tion within the meaning of § 52-466 and, thus, to invoke
the subject matter jurisdiction of the court as an initial
matter’’ [emphasis in original]). ‘‘Simply stated, the col-
lateral consequences of the petitioner’s expired convic-
tions, although severe, are insufficient to render the
petitioner in custody on those convictions and, there-
fore, to invoke the jurisdiction of the habeas court.’’
Ajadi v. Commissioner of Correction, supra, 280
Conn. 541.7
Because the petitioner’s sentence had been served
fully by the time his petition was filed, the habeas court
properly concluded that the petitioner was not in cus-
tody at that time, within the meaning of § 52-466, and
thus dismissed his petition for lack of subject matter
jurisdiction.
The judgment is affirmed.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
General Statutes § 53a-59 (a) (4) provides in relevant part: ‘‘A person is
guilty of assault in the first degree when . . . (4) with intent to cause serious
physical injury to another person and while aided by two or more other
persons actually present, he causes such injury to such person or to a third
person . . . .’’
Violation of § 53a-59 (a) (4) is a class B felony and, thus, the petitioner
was subject to a maximum sentence of not less than one year imprisonment
nor more than twenty years imprisonment, and a fine in an amount not to
exceed fifteen thousand dollars. The plea agreement pursuant to which the
petitioner was sentenced provided for five years of incarceration, execution
suspended, and five years of probation. Considering the exposure to a
lengthy sentence and a substantial fine, it is clear that the plea agreement
would have been extremely attractive to any defendant even with the possi-
bility, ultimately, of deportation.
2
General Statutes § 52-466 (a) (1) provides in relevant part: ‘‘An application
for a writ of habeas corpus . . . shall be made to the superior court, or to
a judge thereof, for the judicial district in which the person whose custody
is in question is claimed to be illegally confined or deprived of such per-
son’s liberty.’’
3
The United States Supreme Court in Padilla v. Kentucky, supra, 559
U.S. 366, held ‘‘that advice regarding deportation is not categorically removed
from the ambit of the Sixth Amendment right to counsel,’’ and thus before
an alien criminal defendant pleads guilty to a charged offense, his attorney
must advise him of the potential deportation consequences of his plea and
resulting conviction. It went on to explain that ‘‘deportation is a particularly
severe penalty . . . but it is not, in a strict sense, a criminal sanction.
Although removal proceedings are civil in nature . . . deportation is never-
theless intimately related to the criminal process. Our law has enmeshed
criminal convictions and the penalty of deportation for nearly a century
. . . . And, importantly, recent changes in our immigration law have made
removal nearly an automatic result for a broad class of noncitizen offenders.
Thus, we find it most difficult to divorce the penalty from the conviction
in the deportation context. . . . Moreover, we are quite confident that non-
citizen defendants facing a risk of deportation for a particular offense find
it even more difficult.’’ (Citations omitted; internal quotation marks omitted.)
Id., 365–66.
4
See Chaidez v. United States, U.S. , 133 S. Ct. 1103, 1107–13, 185
L. Ed. 2d 149 (2013) (Padilla does not apply retroactively to petitioners
whose convictions had become final by time Padilla decision was
announced).
5
Even if we had concluded that the habeas court had jurisdiction over
the petitioner’s habeas action, his claim that the holding of Padilla would
permit him to prevail on the merits of his claim is unsupported by the United
States Supreme Court’s more recent decision in Chaidez v. United States,
U.S. , 133 S. Ct. 1103, 1107–13, 185 L. Ed. 2d 149 (2013). The Supreme
Court in Chaidez held that the holding of Padilla does not apply retroactively
to petitioners whose convictions had become final by the time the Padilla
decision was announced on March 31, 2010. Id., 1107.
6
Nowhere in the petitioner’s brief does he dispute the fact that he was
not in the custody of or restrained by the state in connection with his
challenged conviction at the time he filed his petition.
7
In support of the merits of his claim on appeal, the petitioner argues
that Padilla eliminated the distinction between direct and collateral conse-
quences of an alien defendant’s criminal conviction by applying the two-
pronged test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984), to resolve ineffective assistance of
counsel claims asserted by petitioners whose guilty pleas resulted in deporta-
tion. Under Strickland, to establish ineffective assistance of counsel, coun-
sel’s representation must fall ‘‘below an objective standard of
reasonableness’’; id., 688; and there also must be ‘‘a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.’’ Id., 694. He claims that the record shows that
the ineffective assistance of his counsel satisfies both prongs of Strickland
and warrants reversal of the habeas court’s dismissal of his petition for a
writ of habeas corpus and a remand of the case to the habeas court for
adjudication of the merits of his petition. Because we do not reach the
merits of the petitioner’s claim we need not consider whether the distinction
between collateral and direct consequences is applicable to the determina-
tion of whether counsel was ineffective in failing to advise the petitioner
of the potential deportation consequences of the conviction.