Opinion
The petitioner, Muhoza Zuberi, appeals from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court committed plain error
On July 9, 2009, the petitioner filed a pro se petition for a writ of habeas corpus. The petitioner later obtained counsel and, on June 11, 2010, through counsel, filed the amended petition underlying this appeal. The оnly claim raised in the amended petition was that the petitioner had been denied the effective representation of trial counsel. Specifically, the petitioner claimed that his right to the effective assistance of trial counsel was denied because (1) “[t]rial counsel failed to ensure that the petitioner’s plea of guilty was made knowingly, intelligently and voluntarily, in that . . . the trial counsel failed to advise the petitioner that the petitioner’s immigration status could be implicated by his plea of guilty, and . . . the trial counsel failed to advise the petitioner that his plea of guilty made him subject to deportation from [the United States],” and (2) “[t]rial counsel failed to аdvise the petitioner concerning the (i) consequences of his plea of guilty, and (ii) the petitioner’s right to withdraw his plea under certain circumstances as set forth in ... § 54-lj via [the] petitioner’s motion to vacate his plea.”
On April 15, 2011, in a memorandum of decision, the court denied the petitioner’s amended petition, finding that the petitionеr’s trial counsel “more likely than not advised the petitioner about the immigration consequences of his guilty plea.” Further, the court stated that “even if this court were to presume deficiency in [trial counsel’s] representation, the petitioner’s claim would still fail, as he has not made the required showing of prejudice. . . . [I]t is far from clear thаt, but for [trial counsel’s] alleged failure to inform [the petitioner] of the immigration consequences of his guilty plea, he would have rejected the plea bargain and insisted on going to trial. Additionally, had the petitioner gone to trial, it is not likely that he would have
I
First, we address the petitioner’s claim that plain error exists. “[The plain error] doctrine, codified at Practice Book § 60-5, is an extraordinary remedy used by appellate courts to rectify errors committed at trial that, although unpreserved, are of such monumental proportion that they threaten to erode our system of justice and work a serious and manifest injustice on the aggrieved party. [T]he plain error doctrine ... is not ... a rule of reviewability. It is a rule of reversibility. That is, it is a doctrine that this court invokes in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal оf the trial court’s judgment, for reasons of policy. ... In addition, the plain error doctrine is reserved for truly extraordinary situations [in which] the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . . . Plain error is a doctrine that should be invoked sparingly. . . . Implicit in this very demanding stаndard is the notion . . . that invocation of the plain error doctrine is reserved for occasions requiring the reversal of the judgment under review. . . . [Thus, an appellant] cannot prevail under [the plain error doctrine] . . . unless he demonstrates that the claimed error is both so clear and so harmful that a failure to reverse the judgment would rеsult in manifest injustice. . . .
“[W]e recently clarified the two step framework under which we review claims of plain error. First, we must determine whether the trial court in fact committed an error and, if it did, whether that error was indeed plain in the sense that it is patent [or] readily discemable on the face of a factually adequate record, [and] also . . . obvious in the sense of not debatable. . . . [T]his inquiry entails a relatively high standard, under which it is not enough for the defendant simply to demonstrate that his position is correct. Rather, the party seeking plain error review must demonstrate that the claimed impropriety was so clear, obvious and indisputable as to warrant the extraordinary remedy of reversal. . . .
“In addition, although a clear and obvious mistake on the part of the trial court is a prerequisite for reversal under the plain error doctrine, such a finding is not, without more, sufficient to warrant the application of the doctrine. Because [a] party cannot prevail under plain error unless it has demonstrated thаt the failure to grant relief will result in manifest injustice . . . under the second prong of the analysis we must determine whether the consequences of the error are so grievous as to be fundamentally unfair or manifestly unjust. . . . Only if both prongs of the analysis are satisfied can the appealing party obtain relief.” (Citation omitted; internal quotation marks omitted.) State v. Davenport,
“To obtain relief through a habeas petition, the petitioner must plead facts that, if proven, establish that the petitioner is entitled to relief. In a writ of habeas corpus alleging illegal confinement the application must set forth specific grounds for the issuance of the writ including the basis for the claim of illegal confinement. . . . [T]hе petition for a writ of habeas corpus is essentially a pleading and, as such, it should conform generally to a complaint in a civil action. ... It is fundamental in our law that the right of
On appeal, thе petitioner does not challenge the court’s findings and conclusions regarding the alleged ineffective assistance of his trial counsel,
Based on our thorough review of the record, we conclude that the petitioner has failed to demonstrate plain error by the habeas court. The court was not required, nor permitted, to look beyond the issues raised in the petitioner’s amended habeas petition. See id. The petitioner acknowledges that the alleged ineffective assistance of his trial counsel was the sole argument presented as the basis for the relief sought in the amended habeas petition. In its memorandum of decision, the court appropriately confined its discussion and аnalysis to the petitioner’s claims regarding ineffective assistance of counsel.
The court did not, as the petitioner argues, fail to follow a clearly applicable mandatory statute because § 54-lj imposes mandatory requirements on the trial court, not the habeas court.
II
Alternatively, the petitioner invites this court to vacate his conviction in the exercise of its inherent supervisory authority over the administration of justice. See, e.g., State v. Jimenez-Jaramill,
The judgment is affirmed.
In this opinion the other judges concurred.
Notes
The petitioner seeks plain error review of the habeas court’s judgment because, as he acknowledges, his current claim on appeal was not raised or argued before the habeas court.
General Statutes § 54-lj provides in relevant part: “(a) The court shall not accept a plea of guilty or nolo contendere from any defendant in any criminal proceeding unless the court first addresses the defendantpersonally and determines that the defendant fully understands that if the defendant is not a citizen of the United States, conviction of the offensе for which the defendant has been charged may have the consequences of deportation or removal from the United States, exclusion from readmission to the United States or denial of naturalization, pursuant to the laws of the United States. If the defendant has not discussed these possible consequences with the defendant’s attоrney, the court shall permit the defendant to do so prior to accepting the defendant’s plea. . . .
“(c) If the court fails to address the defendant personally and determine that the defendant fully understands the possible consequences of the defendant’s plea, as required in subsection (a) of this section, and the defendant not later than three years after the acceptance of the plea shows that the defendant’s plea and conviction may have one of the enumerated consequences, the court, on the defendant’s motion, shall vacate the judgment, and permit the defendant to withdraw the plea of guilty or nolo contenderе, and enter a plea of not guilty.”
The record reflects that, as of September 14, 2010, the petitioner had been in the custody of the United States Department of Homeland Security since June, 2008, pending a deportation hearing as a consequence of his April 30, 2007 sentence. The record is barren as to the petitioner’s present status.
With respect to the petitioner’s claim that his trial counsel failed to advise him concerning his “right to withdraw his plea under certain circumstances as set forth in ... § 54-lj via [the] petitioner’s motion to vacate his plea,” the habeas court found that “[t]he petitioner did not present any evidence on this claim and did not directly address it in his рosttrial brief. Accordingly, [the habeas court found] that the petitioner . . . abandoned this claim.”
In addition, based upon this court’s review of the record, there does not appear to be any evidence that the petitioner ever filed a motion to vacate his plea with the trial court.
The petitioner does appear to challenge the habeas court’s suggestion that his prior conviction for an earlier domestic assault matter may have, by itself, exposed him to deportation. To the extent that the court’s suggestion constituted a factual finding, it is not relevant to the resolution of this appeal.
Although the petitioner made reference to § 54-lj in his argument, it was in the context of his ineffective assistance of counsel claim.
On appeal, the petitioner claims that he was “indisputably entitled under § 54-lj to the relief he sought in his habeas petition.” The petitioner’s claim is predicated on the faulty presumption that his actions in the habeas court, rather than in the trial court, wеre sufficient to entitle him to relief under § 54-lj (c). Because the statute refers to the trial court, the petitioner would only be entitled to relief by making the requisite showing of trial court error and the motion to vacate specified in § 54-lj (c) to the trial court. In resolving this appeal, we do not decide whether the petitioner propеrly satisfied this statutory requirement before the trial court. We conclude only that his amended habeas petition and presentation of evidence to the habeas court could not serve as a substitute for the required showing and motion to the trial court.
We note that, during oral argument before this court, the petitioner specificаlly recognized that the trial court is the court specified in the provisions of § 54-lj. The petitioner nonetheless argues that the statute does not limit the habeas court from granting the same relief specified in § 54-lj (c). The petitioner’s argument is unavailing because the issue is not whether the habeas court had the authority to grant such relief under the statute, but, rather, whether it was required to do so sua sponte based on the petitioner’s passing reference to the statute in the context of his argument about ineffective assistance of counsel.
Moreover, the cases relied on by the petitioner for the proposition that “[i]t is plain error for a trial court to fail to apply an applicable statute, even in the absence of the statute having been brought to its attention by the parties”; (internal quotation marks omitted); are inapposite to the present case because the petitioner appeals from the judgment of the habeas court, not the trial court. Because the statute relied on by the petitioner applies to the trial court, there was no error by the habeas court in failing to grant relief under the statute.