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JOSE PAULINO v. COMMISSIONER OF CORRECTION
(AC 35691)
Gruendel, Lavine and Dupont, Js.
Argued October 9, 2014—officially released January 27, 2015
(Appeal from Superior Court, judicial district of
Tolland, geographical area number nineteen,
Solomon, J.)
Neal Cone, senior assistant public defender, for the
appellant (petitioner).
Nancy L. Walker, deputy assistant state’s attorney,
with whom, on the brief, were Brian Preleski, state’s
attorney, and Richard K. Greenalch, Jr., special deputy
assistant state’s attorney, for the appellee (respondent).
Opinion
DUPONT, J. The petitioner, Jose Paulino, appeals
from the denial of his petition for certification to appeal
from the judgment of the habeas court dismissing with-
out prejudice his petition for a writ of habeas corpus.
The underlying basic question for our resolution is
whether the habeas court properly denied the petition-
er’s certification to appeal because of a lack of subject
matter jurisdiction due to the fact that the court could
not provide any relief to the petitioner and the issue
was, therefore, moot. We conclude that the habeas
court did not abuse its discretion in denying the petition
for certification to appeal and, accordingly, we dismiss
the appeal.
The following facts and procedural history are rele-
vant to our decision. The petitioner is a citizen of the
Dominican Republic who had visited the United States
periodically and had married a woman who lived in
Hartford. In 2008, following a trial to the court, the
petitioner was convicted of possession of narcotics with
intent to sell by a person who is not drug-dependent
in violation of General Statutes § 21a-278 (b) and pos-
session of narcotics with intent to sell within 1500 feet
of a public school in violation of General Statutes § 21a-
278a (b). The trial court then sentenced the petitioner
to three year terms of incarceration on each charge, to
be served consecutively, for a total effective sentence
of six years of imprisonment. The petitioner appealed
the convictions to this court, claiming that the trial
court had abused its discretion by failing to order a
competency hearing for him and by depriving him of
the right to a fair trial. State v. Paulino, 127 Conn.
App. 51, 52, 12 A.3d 628 (2011). This court affirmed the
convictions on March 1, 2011. Id., 70.
On December 14, 2011, while incarcerated at Osborn
Correctional Institute in Somers, the petitioner filed a
handwritten pro se petition for writ of habeas corpus.
In his petition, the petitioner claimed that the attorney
representing him at the criminal trial had provided inef-
fective assistance of counsel. The petitioner also alleged
that the government unlawfully entered his home, with-
out a warrant or probable cause, where he kept large
sums of money legally earned, and unlawfully inter-
cepted and monitored telephone conversations with a
man known to the petitioner as a heroin dealer. Finally,
the petitioner made a claim of actual innocence and
asked the court to order a new trial or release him.
On June 21, 2012, the United States Immigration
Court issued an oral decision finding the petitioner
removable as charged. In particular, the immigration
court first found that ‘‘removability has been estab-
lished by clear and convincing evidence as a non-immi-
grant overstay.’’ The immigration court then found that
the petitioner’s ‘‘conviction for possession with intent
to sell narcotics is both an aggravated felony and an
offense relating to a controlled substance.’’ Accord-
ingly, the immigration court ordered that the petitioner
be ‘‘removed to the Dominican Republic.’’ The peti-
tioner then filed an appeal from that decision, noting
his pending habeas corpus action in state court. The
Board of Immigration Appeals (board) affirmed the
decision and dismissed his appeal on October 18, 2012,
reasoning that ‘‘the fact that the respondent may be
pursuing post-conviction relief in the form of a collat-
eral attack on his conviction in state criminal court does
not affect its finality for federal immigration purposes.’’
The petitioner appealed that dismissal to the United
States Court of Appeals for the Second Circuit on
December 14, 2012, which subsequently dismissed the
appeal on May 14, 2013.
On January 11, 2013, while the immigration appeal
was still pending in the Second Circuit, the habeas court
held a status conference at which the petitioner’s
habeas counsel informed the court that the petitioner
had been deported.1 On the basis of this information, the
habeas court dismissed the petitioner’s habeas petition
without prejudice.2 On January 17, 2013, the petitioner’s
habeas counsel filed a petition for certification to
appeal. The habeas court denied the petition for certifi-
cation to appeal on March 13, 2013. This appeal
followed.3
On appeal, the petitioner claims that the habeas court
abused its discretion by denying certification to appeal.
In response, the respondent, the Commissioner of Cor-
rection, argues that this court does not need to reach
that issue because there is a threshold issue that is
dispositive of the appeal. Specifically, the respondent
argues that the Second Circuit’s dismissal of the immi-
gration appeal, together with the petitioner’s failure
to show a reasonable possibility that further habeas
proceedings would provide practical relief, render this
appeal moot. While we agree with the respondent that
the petitioner has failed to show a reasonable possibility
that further habeas proceedings would provide practi-
cal relief, we disagree with the respondent’s argument
and instead conclude that the habeas court did not
abuse its discretion in denying certification to appeal.
‘‘We begin by setting forth the applicable standard
of review and procedural hurdles that a petitioner must
surmount to obtain appellate review of the merits of a
habeas court’s denial of a habeas petition following
denial of certification to appeal. In Simms v. Warden,
229 Conn. 178, 187, 640 A.2d 601 (1994), [our Supreme
Court] concluded that . . . [General Statutes] § 52-470
(b) prevents a reviewing court from hearing the merits
of a habeas appeal following the denial of certification
to appeal unless the petitioner establishes that the
denial of certification constituted an abuse of discretion
by the habeas court. In Simms v. Warden, 230 Conn.
608, 615–16, 646 A.2d 126 (1994), [our Supreme Court]
incorporated the factors adopted by the United States
Supreme Court in Lozada v. Deeds, 498 U.S. 430, 431–32,
111 S. Ct. 860, 112 L. Ed. 2d 956 (1991), as the appro-
priate standard for determining whether the habeas
court abused its discretion in denying certification to
appeal. This standard requires the petitioner to demon-
strate that the issues are debatable among jurists of
reason; that a court could resolve the issues [in a differ-
ent manner]; or that the questions are adequate to
deserve encouragement to proceed further. . . . A
petitioner who establishes an abuse of discretion
through one of the factors listed above must then dem-
onstrate that the judgment of the habeas court should
be reversed on its merits. . . . In determining whether
the habeas court abused its discretion in denying the
petitioner’s request for certification, we necessarily
must consider the merits of the petitioner’s underlying
claims to determine whether the habeas court reason-
ably determined that the petitioner’s appeal was frivo-
lous. . . .
‘‘The conclusions reached by the trial court in its
decision to dismiss [a] habeas petition are matters of
law, subject to plenary review. . . . [When] the legal
conclusions of the court are challenged, [the reviewing
court] must determine whether they are legally and
logically correct . . . and whether they find support
in the facts that appear in the record.’’ (Citation omitted;
internal quotation marks omitted.) McMillion v. Com-
missioner of Correction, 151 Conn. App. 861, 868–70,
97 A.3d 32 (2014).
As noted previously, the habeas court dismissed the
petition for a writ of habeas corpus without prejudice,
noting that the court lacked jurisdiction to hear the
petition because of the petitioner’s deportation. ‘‘Moot-
ness . . . implicates subject matter jurisdiction, which
imposes a duty on the [trial] court to dismiss a case if
the court can no longer grant practical relief to the
parties. . . . Mootness presents a circumstance
wherein the issue before the court has been resolved
or had lost its significance because of a change in the
condition of affairs between the parties. . . . A case
becomes moot when due to intervening circumstances
a controversy between the parties no longer exists.’’
(Citations omitted; internal quotation marks omitted.)
We the People of Connecticut, Inc. v. Malloy, 150 Conn.
App. 576, 581, 92 A.3d 961, cert. denied, 314 Conn. 919,
100 A.3d 850 (2014).
‘‘Because courts are established to resolve actual con-
troversies, before a claimed controversy is entitled to
a resolution on the merits it must be justiciable . . . .
Justiciability requires (1) that there be an actual contro-
versy between or among the parties to the dispute . . .
(2) that the interests of the parties be adverse . . .
(3) that the matter in controversy be capable of being
adjudicated by judicial power . . . and (4) that the
determination of the controversy will result in practical
relief to the complainant. . . . A case is considered
moot if [the trial] court cannot grant the appellant any
practical relief through its disposition of the merits
. . . .’’ (Internal quotation marks omitted.) Wyatt
Energy, Inc. v. Motiva Enterprises, LLC, 308 Conn.
719, 736, 66 A.3d 848 (2013).
This court addressed the issue of whether a petition-
er’s deportation renders a case moot in Quiroga v.
Commissioner of Correction, 149 Conn. App. 168, 87
A.3d 1171, cert. denied, 311 Conn. 950, 91 A.3d 462
(2014). In Quiroga, the petitioner, a citizen of Uruguay,
was convicted of possession of narcotics and larceny
in the first degree. Id., 170. The petitioner in that case
filed a petition for a writ of habeas corpus, alleging that
his representation regarding the larceny conviction was
ineffective. Id., 171. Following a trial, the habeas court
denied the petition and the petitioner appealed. Id.,
172. During the pendency of that appeal, however, the
petitioner was permanently removed to Uruguay. Id.,
172–73. On appeal, this court relied on our Supreme
Court’s decision in State v. Aquino, 279 Conn. 293, 901
A.2d 1194 (2006),4 finding that there was ‘‘no evidence
in the record before us that the petitioner’s guilty plea
to larceny in the first degree was the sole reason for
his deportation. To the contrary, the immigration judge
specifically found that removability on the ground of
the petitioner’s narcotics convictions had been estab-
lished by clear and convincing evidence.’’ (Emphasis
in original; internal quotation marks omitted.) Quiroga
v. Commissioner of Correction, supra, 173. Further-
more, this court rejected the petitioner’s argument that
absent the larceny conviction, ‘‘he would have been
eligible for a possible cancellation of removal pursuant
to 8 U.S.C. § 1229b.’’ Id., 173–74. This court dismissed
the petitioner’s appeal, holding that ‘‘Aquino requires
proof that the larceny plea was the exclusive basis of
the petitioner’s deportation, rather than a primary or
likely one.’’ Id., 174.
The present case is similar to Quiroga. Here, the
petitioner was convicted of two drug related offenses.
After the petitioner served his sentences for these con-
victions, the immigration court ordered that he be
removed from the United States. There is no evidence
in the record before us, nor was there any evidence
presented to the habeas court, to suggest that the peti-
tioner’s convictions were the sole reason for his depor-
tation. To the contrary, the immigration court
specifically found that removability on the ground of
the petitioner’s nonimmigrant overstay had ‘‘been estab-
lished by clear and convincing evidence.’’ In the absence
of any such evidence, we conclude that the petitioner
has failed to demonstrate that the issue of whether his
habeas petition was moot is debatable among jurists
of reason, that a court could resolve that issue differ-
ently, or that the issue deserves encouragement to pro-
ceed further.
The petitioner here nevertheless maintains that we
can retain jurisdiction over his appeal pursuant to the
collateral consequences doctrine. We disagree.
‘‘Under the collateral consequences doctrine, this
court may retain jurisdiction and consider a claim that
otherwise has been rendered moot when a litigant
shows there is a reasonable possibility that prejudicial
collateral consequences will occur. . . . Where there
is no direct practical relief available from the reversal
of the judgment . . . the collateral consequences doc-
trine acts as a surrogate, calling for a determination
whether a decision in the case can afford the litigant
some practical relief in the future. The reviewing court
. . . determines, based upon the particular situation,
whether, the prejudicial collateral consequences are
reasonably possible.’’ (Citation omitted; internal quota-
tion marks omitted.) State v. Chavarro, 130 Conn. App.
12, 18, 21 A.3d 541 (2011). ‘‘[T]his standard requires the
[litigant] to demonstrate more than an abstract, purely
speculative injury, but does not require the [litigant] to
prove that it is more probable than not that the prejudi-
cial consequences will occur.’’ (Internal quotation
marks omitted.) Quiroga v. Commissioner of Correc-
tion, supra, 149 Conn. 176.
The petitioner argues that as a collateral consequence
of the denial of his petition for certification to appeal,
he is permanently barred from reentering the United
States. At oral argument before this court, the petition-
er’s counsel argued that if the petitioner’s drug related
convictions were overturned during habeas corpus pro-
ceedings, the petitioner would only be barred from read-
mission to the United States for the ten years applicable
to the visa overstay. See 8 U.S.C. § 1182 (a) (9) (A)
(ii). The petitioner, however, has failed to produce any
evidence that, in the absence of his convictions, he
would be permitted to return to the United States. Fur-
thermore, the petitioner failed to produce any such
evidence for the habeas court prior to its dismissal of
the petitioner’s habeas petition. Therefore, we conclude
that the petitioner has failed to demonstrate that the
habeas court abused its discretion in denying his peti-
tion for certification to appeal.
The appeal is dismissed.
In this opinion the other judges concurred.
1
The record does not indicate the exact date that the petitioner was
deported. It is clear, however, that he had served his entire sentence and
was released on parole from prison on August 12, 2012. Furthermore, the
record indicates that he was no longer in the United States on January
11, 2013.
2
‘‘A dismissal without prejudice terminates litigation and the court’s
responsibilities, while leaving the door open for some new, future litigation.’’
(Internal quotation marks omitted.) Commission on Human Rights &
Opportunities v. Torrington, 96 Conn. App. 313, 319, 901 A.2d 46, cert.
denied, 280 Conn. 929, 909 A.2d 957 (2006). ‘‘Dismissal without prejudice’’
is defined in Ballentine’s Law Dictionary as ‘‘[a] voluntary dismissal of an
action or proceeding without an adjudication of the cause that would prevent
the bringing of a new action upon the same cause. . . . An order of dismissal
of an action reciting that it is without prejudice, the effect of which is to
prevent the dismissal from operating as a bar to any new suit which the
plaintiff might thereafter desire to bring on the same cause of action. . . .’’
Ballentine’s Law Dictionary (3d Ed. 1969). Although this definition can be
considered ‘‘black letter law,’’ the instant case is an example of a dismissal
which cannot be resurrected because the immigration court ordered the
petitioner’s deportation due to his visa overstay and both the Board of
Immigration Appeals and the Second Circuit dismissed the petitioner’s
appeal of such deportation.
3
We note that the petitioner’s immigration appeal was dismissed by the
Second Circuit after the habeas court denied petitioner’s certification to
appeal but before the present appeal. On May 14, 2013, the United States
Court of Appeals for the Second Circuit dismissed the petitioner’s petition
for review of the board’s dismissal of his appeal. The court reasoned that
it lacked jurisdiction to review the petition, as it was ‘‘deposited in the
internal mailing system of Petitioner’s detention facility more than 30 days
after the date of the [board’s] decision.’’
4
In Aquino, our Supreme Court specifically addressed whether an appeal
is moot when a litigant is deported during the pendency of his appeal. State
v. Aquino, supra, 279 Conn. 293. The court held that ‘‘in the absence of
any evidence that the defendant’s guilty plea was the sole reason for his
deportation, the defendant’s appeal must be dismissed as moot. The defen-
dant did not produce any evidence at the hearing on his motion to withdraw
his guilty plea—indeed, he did not even claim—that he would be deported
solely as the result of his guilty plea. While this appeal was pending, the
defendant was deported. There is no evidence in the record as to the reason
for his deportation. If it was not the result of his guilty plea alone, then this
court can grant no practical relief and any decision rendered by this court
would be purely advisory. . . . We conclude, therefore, that the appeal
must be dismissed on the ground that the defendant has failed to establish
that his claim is not moot.’’ (Citations omitted; footnotes omitted; internal
quotation marks omitted.) Id., 298–99; see also State v. Chavarro, 130 Conn.
App. 12, 17–18, 21 A.3d 541 (2011) (court held that defendant’s appeal was
moot because he ‘‘failed to establish that his deportation was the result of
his guilty plea alone’’ [internal quotation marks omitted]).