Kondjoua v. Commissioner of Correction

Syllabus

The petitioner, a Cameroonian citizen who had been convicted, on a guilty plea, of the crime of sexual assault in the third degree, sought a writ of habeas corpus, claiming that his trial counsel had provided ineffective assistance by failing to advise him properly of the immigration conse- quences of pleading guilty and that his right to due process was violated because his plea was not knowingly, intelligently and voluntarily made due to trial counsel's failure to advise him properly with respect to the immigration consequences. The respondent, the Commissioner of Correction, filed a return raising a special defense that the petitioner's due process claim was procedural defaulted. The habeas court rendered judgment denying the habeas petition, finding that the petitioner failed to establish that trial counsel had rendered ineffective assistance or that he was prejudiced by trial counsel's alleged deficient performance. The court also found that the petitioner's due process claim was proce- durally defaulted because he failed to meet his burden as to his ineffec- tive assistance of counsel claim and had not established cause and prejudice sufficient to overcome the procedural default. In reaching its decision, the court credited trial counsel's testimony that he had advised the petitioner, prior to the plea hearing, that he would be deported if he pleaded guilty, and it discredited the petitioner's testimony to the contrary. Thereafter, on the granting of certification, the petitioner appealed to this court. Held: 1. The petitioner could not prevail on his claim that the habeas court improp- erly rejected his ineffective assistance of counsel claim, that court having properly determined that the petitioner failed to establish that he was prejudiced by his trial counsel's alleged deficient performance; the peti- tioner failed to meet his burden of demonstrating that he would have rejected the plea agreement and insisted on going to trial had he known the immigration