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*********************************************** 
PEDRO CARRASQUILLO v. COMMISSIONER

OF CORRECTION

(AC 42537)

Moll, Alexander and Suarez, Js.

Syllabus

The petitioner, who had been convicted of murder and carrying a pistol

without a permit, sought a writ of habeas corpus, claiming that his trial

counsel, P, rendered ineffective assistance by failing to properly advise

him concerning a plea offer. The habeas court denied the petition,

concluding that P had provided the petitioner with effective assistance

and, thereafter, the court granted the petition for certification to appeal,

and the petitioner appealed to this court. Held that the habeas court

properly denied the petition for a writ of habeas corpus and properly

concluded that the petitioner was not deprived of the effective assistance

of counsel: there was ample evidence in the record to support the court’s

findings that P advised the petitioner regarding the plea offer, the state’s

case against him, and the pros and cons of going to trial through extensive discussions, P requested several continuances to provide the petitioner with time to consider the plea offer, and there was evidence in

the record that P did in fact recommend that the petitioner plead guilty;

moreover, P’s representation was not deficient, as the advice given by

P was adequate for the petitioner to make an informed decision about

whether to accept the plea offer, P having made the petitioner aware

of the mandatory minimum sentence, discussed the state’s evidence

against him, including witness statements and warrant affidavits, and

estimated that the petitioner had a 50/50 chance of success at trial;

furthermore, there was no requirement that counsel specifically recommend that a client accept a plea offer, only that counsel provide an

informed opinion regarding the plea offer under the circumstances of

the case.

Argued January 12—officially released July 27, 2021

Procedural History

Amended petition for a writ of habeas corpus, brought

to the Superior Court in the judicial district of Tolland

and tried to the court, Bhatt, J.; judgment denying the

petition, from which the petitioner, on the granting of

certification, appealed to this court. Affirmed.

Robert L. O’Brien, assigned counsel, with whom, on

the brief, was William A. Adsit, assigned counsel, for

the appellant (petitioner).

Margaret Gaffney Radionovas, senior assistant state’s

attorney, with whom were Patrick J. Griffin, state’s

attorney, and Adrienne Russo, assistant state’s attorney, for the appellee (respondent).
Opinion

SUAREZ, J. The petitioner, Pedro Carrasquillo,

appeals, following the granting of his petition for certification to appeal, from the judgment of the habeas court

denying his second amended petition for a writ of

habeas corpus. The petitioner claims that the habeas

court erred by concluding that he was not deprived of

his right to the effective assistance of counsel during

his underlying criminal trial. We affirm the judgment

of the habeas court.

The following facts and procedural history are relevant to our resolution of the petitioner’s claims. In 2005,

following a trial, the petitioner was convicted of murder

in violation of General Statutes (Rev. to 2003) § 53a-54a

(a) and carrying a pistol without a permit in violation

of General Statutes (Rev. to 2003) § 29-35.1 Attorney

Diane Polan represented the petitioner throughout the

pretrial, trial, and sentencing phases of his case. Michael

Dearington, state’s attorney for the judicial district of

New Haven, prosecuted the case. In June, 2004, during

a pretrial conference, the court, Fasano, J., indicated

that it would accept a proposed plea agreement in which

the petitioner would enter a guilty plea to the charge

of murder and receive the mandatory minimum sentence of twenty-five years of incarceration. In November, 2004, the petitioner formally rejected the proposed

plea agreement. Following the jury’s verdict of guilty

and the finding of guilty by the court, on September

13, 2005, the court imposed a thirty-five year sentence

on the murder count and a concurrent sentence of five

years for the carrying a pistol without a permit count.

The judgment of conviction was upheld following the

petitioner’s direct appeal to our Supreme Court. State v.

Carrasquillo, 290 Conn. 209, 211, 962 A.2d 772 (2009).2

On September 27, 2013, the petitioner, as a self-represented litigant, filed a petition for a writ of habeas

corpus. The petitioner subsequently was appointed

habeas counsel. On December 26, 2017, the petitioner,

through counsel, filed an amended petition. On April

24, 2018, a second amended petition was filed. In the

second amended petition, the petitioner alleged, in relevant part, that he received deficient representation

related to the plea offer discussed before Judge Fasano

prior to the start of the criminal trial. He alleged that

his confinement is unlawful because the representation

provided by his trial counsel, Attorney Polan, ‘‘[fell]

below the range of competency displayed by lawyers

with ordinary training and skill’’ and that ‘‘there [was]

[a] reasonable probability that, but for counsel’s acts

and omissions, [he] would have either accepted the plea

agreement offered and received a lower sentence or

would have proceeded to trial and received a more

favorable outcome.’’3

The petitioner alleged that trial counsel’s representa-
tion was deficient in several ways. The petitioner asserted

that his trial counsel failed (1) ‘‘to adequately and meaningfully convey the terms of the plea agreement offered

to the petitioner, and convey all of the possible consequences of going to trial rather than accepting the plea

agreement,’’ (2) ‘‘to ensure that the petitioner had the

capacity to make an informed decision regarding whether

to enter a plea or go to trial,’’ (3) ‘‘to consult . . . with

a medical professional specializing in adolescent cognitive, neurological and psychological development to

assist trial counsel in understanding how to meaningfully convey the offered plea agreement to the petitioner, or to assist trial counsel in determining whether

petitioner had the capacity to make an informed decision to plead or proceed to trial,’’ (4) to ensure ‘‘that

a capable individual be appointed guardian ad litem for

the petitioner and ensure that the court would approve

the trial counsel’s recommendation that the appointed

guardian ad litem make the decision whether the petitioner should enter a plea or proceed to trial,’’ (5) ‘‘to

have an appropriate adolescent psychiatric professional

interview the petitioner for the purpose of offering a

professional opinion on whether the petitioner had the

capacity and/or was capable of making an informed decision on the issue of whether to enter a plea or proceed

to trial,’’ (6) ‘‘to adequately cross-examine the state’s

witnesses to reveal inconsistencies in their testimonies

and to impeach their veracity,’’ and (7) ‘‘to adequately

question defense witnesses to rebut the testimony of

the witnesses provided by the state.’’ The claim raised in

the present appeal is related only to the habeas court’s

rejection of the petitioner’s claim that he received deficient representation with respect to the advice he

received from trial counsel in connection with the

plea offer.

On September 11, 2018, the habeas court, Bhatt, J.,

presided over the habeas trial. The petitioner presented

the testimony of two witnesses, himself and Attorney

Dearington.4 The petitioner testified about the plea offer

that he had received before the murder trial and the

advice Attorney Polan had given him regarding the

offer. He testified that Attorney Polan had advised him

that if he went to trial and lost, he could receive a

sentence of between twenty-five and thirty years of

incarceration. The petitioner indicated that Attorney

Polan did not communicate the maximum sentence for

a charge of murder. The petitioner further testified that

Attorney Polan did not give him any specific recommendation regarding the plea offer, and she told him that

he should make the decision ‘‘based on how [he felt]

because at the end of the day, [he] was going to be the

one serving the time or going to trial and going home

. . . .’’ Attorney Polan gave the petitioner an estimate

that he had a ‘‘50/50’’ chance at trial. The petitioner also

testified that after trial, but before the verdict, Attorney

Polan had indicated to him that there was another offer.5
There was not a long conversation about the offer, and

the petitioner ‘‘just refused.’’

The petitioner’s habeas counsel examined Attorney

Dearington about the pretrial plea offer. Attorney Dearington testified that Judge Fasano indicated that he

would accept the plea agreement and impose a sentence

of twenty-five years of incarceration. Attorney Dearington testified that the petitioner did not accept the plea

offer, and he had no recollection of making another

offer to the petitioner at the time of trial. He indicated

that nothing in his notes suggested that a second plea

offer was made.

On November 30, 2018, in a memorandum of decision,

the habeas court denied the petitioner’s second

amended petition for a writ of habeas corpus. The court

found that ‘‘[t]he petitioner discussed the offer at length

with Attorney Polan, who requested several continuances from June 15, 2004, when the offer was extended,

to November 4, 2004, when the offer was rejected, in

order to allow the petitioner time to consider the offer.

During their discussions considering the offer, they discussed the state’s evidence, which included witness

statements and warrant affidavits, the pros and cons

of going to trial, the weaknesses of the state’s case and

defenses they could pursue. Attorney Polan informed

him that murder carried a mandatory minimum sentence of twenty-five years. The petitioner was aware

that murder was the most serious charge in Connecticut

and that it carried a significant penalty. Attorney Polan

advised him, however, that if he went to trial and lost,

he could expect a sentence in the range of twenty-five

to thirty-five years’ incarceration. . . .

‘‘Attorney Polan advised him to make his decision based

on how he felt ‘because at the end of the day, [he] was

going to be the one serving the time or going to trial

and going home, that not to listen to nobody because

it was not their decision to make.’ She told him that

while it was good to ‘take people’s opinions and ponder

them,’ the final decision was his to make. She estimated

the odds of winning at trial as ‘50/50.’ Neither his mother

nor his stepfather provided any input about whether

he should accept or reject the offer. The petitioner decided

to reject the offer and go to trial based on the inconsistencies of witness statements. This decision was bolstered by the existence of a witness, a Nathaniel Grayson, who had given a statement to the police indicating

that the individual who kicked in the decedent’s car

window was the one who shot him. This decision was

made after a consideration of the terms of the offer, the

evidence against him, the odds of success at trial and

the potential sentence he might receive if he lost that

trial. There is no dispute that had the petitioner accepted

the offer, Judge Fasano would have accepted the plea

and sentenced him in accordance with that offer,

despite the victim’s father’s opposition to it. . . .
‘‘The petitioner also testified as to the existence of a

second offer, made during jury deliberation. He testified

that he was brought into an anteroom in the courtroom,

where Attorney Polan told him that the state was inquiring whether he’d plead to the twenty-five years. His

mother was present during this meeting but did not

offer any advice. He told Attorney Polan that he would

not accept this offer and she did not pursue it at length

because she already knew that he was not going to take

this offer. . . .

‘‘Attorney Dearington testified that there was no second offer and it was not reflected in his file. . . . It was

his practice to make notes of all offers and something

as significant as an offer to resolve the case mid-trial

would have been noted.’’ (Citation omitted.)

The court rejected the petitioner’s claim that Attorney

Polan was deficient in the advice that she gave the

petitioner regarding the plea offer. The court determined that ‘‘Attorney Polan adequately advised the petitioner in order to assist him in making the decision to

plead guilty or not.’’ In reaching its decision, the court

noted that Attorney Polan ‘‘requested continuances for

a period of four to five months to give the petitioner

time to consider the offer. She wrote him a letter laying

out the offer and discussed the pros and cons of pleading with him. In fulfilling her constitutional obligations,

she made him aware of the mandatory minimum sentence, the witness statements, warrant affidavits and

the strengths and weaknesses of the state’s case. She

even estimated their chance of success as ‘50/50.’ She

further guessed that if he lost after trial, he would get

no more than thirty-five years to serve, which is exactly

what he was sentenced to.’’

Regarding the petitioner’s claim that Attorney Polan

did not make a specific recommendation about the

offer, the court concluded that ‘‘there is no requirement

that counsel have to tell their client what the client’s

decision should be. While counsel’s duty is to provide

an informed opinion as to what pleas should enter, the

reasonableness of counsel’s advice is to be examined

in the context in which it was given, under the circumstances of the case.’’ Further, the court determined that

‘‘Attorney Polan had extensive discussions with the

petitioner about the strengths and weaknesses of the

case, expressed her belief as to the likelihood of success

after trial and told him that, in the end, it was his choice

to make.’’

Alternatively, the court determined that there was evidence before it that ‘‘would suggest that Attorney Polan

did, in fact, recommend that the petitioner plead guilty.’’

The court noted that, ‘‘[a]t the petitioner’s sentencing,

Attorney Polan presented the testimony of Karen Brody,

a psychiatrist who had examined the petitioner. During

questioning by Attorney Polan, [Brody] testified that it
was her finding that the petitioner lacked judgment.

The petitioner told her that it was that lack of judgment

that ‘caused him to go to trial as opposed to accepting

the advice of counsel and perhaps taking a plea.’ ’’

Further, the court found that ‘‘the petitioner’s testimony

establishes that he chose to reject the offer not because

of Attorney Polan’s deficient performance, but because

he believed that the state’s case was weak and that there

was a likelihood of prevailing at trial.’’ On cross-examination, the petitioner testified that the ‘‘inconsistencies

in the witness testimonies and the existence of Grayson

as a defense witness were factors in rejecting the offer.’’

The court also rejected the petitioner’s contention that

Attorney Polan should have had him evaluated to determine if he was capable of making an informed decision

about the plea, given his young age. Accordingly, the

court denied the petitioner’s second amended petition

for a writ of habeas corpus.

On December 14, 2018, the habeas court granted the

petitioner’s certification to appeal. This appeal followed. Additional facts and procedural history will be

set forth as necessary.

As a preliminary matter, we begin by addressing the

contention of the respondent, the Commissioner of Correction, that the claim raised in this appeal is not reviewable because several aspects of the claim were not

raised in the second amended petition and because they

are inadequately briefed on appeal. The aspects of the

claim at issue include the petitioner’s assertions that

Attorney Polan did not advise him regarding the strength

of the state’s case, the maximum possible sentence he

could receive, or the advisability of accepting the plea

offer. ‘‘A reviewing court will not consider claims not

raised in the habeas petition or decided by the habeas

court. . . . Appellate review of claims not raised

before the habeas court would amount to an ambuscade

of the [habeas] judge.’’ (Citations omitted; internal quotation marks omitted.) Henderson v. Commissioner of

Correction, 129 Conn. App. 188, 198, 19 A.3d 705, cert.

denied, 303 Conn. 901, 31 A.3d 1177 (2011).

We disagree with the respondent and conclude that

these contentions are properly preserved for our review.

In his second amended petition, the petitioner alleged

that ‘‘[t]rial counsel failed to adequately and meaningfully convey the terms’’ of the plea offer or the ‘‘possible

consequences’’ of rejecting the offer and going to trial.

These allegations are general in nature, but they reasonably may be interpreted to encompass the petitioner’s

assertions that trial counsel failed to advise him regarding the strength of the state’s case, the maximum possible sentence he could receive, or the advisability of

accepting the plea offer. Moreover, in its memorandum

of decision, the habeas court made specific factual findings regarding these allegations.6 The respondent’s contention that the petitioner’s briefing of these issues was
inadequate is similarly unpersuasive. We are satisfied

that the petitioner has adequately raised and briefed

the claim.

We now turn to the governing legal principles applicable to the petitioner’s ineffective assistance of counsel

claim. ‘‘Our standard of review of a habeas court’s judgment on ineffective assistance of counsel claims is well

settled. In a habeas appeal, this court cannot disturb

the underlying facts found by the habeas court unless

they are clearly erroneous, but our review of whether

the facts as found by the habeas court constituted a

violation of the petitioner’s constitutional right to effective assistance of counsel is plenary. . . . The habeas

judge, as the trier of facts, is the sole arbiter of the

credibility of witnesses and the weight to be given to

their testimony. . . .

‘‘A claim of ineffective assistance of counsel is governed

by the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674

(1984). Under Strickland, the petitioner has the burden

of demonstrating that (1) counsel’s representation fell

below an objective standard of reasonableness, and (2)

counsel’s deficient performance prejudiced the defense

because there was a reasonable probability that the

outcome of the proceedings would have been different

had it not been for the deficient performance. . . .7

‘‘In order to prevail on a claim of ineffective assistance

of counsel, the petitioner must establish both prongs of

the Strickland test. . . . [A] habeas court may dismiss

the petitioner’s claim if he fails to satisfy either prong.

. . . Accordingly, a court need not determine the deficiency of counsel’s performance if consideration of the

prejudice prong will be dispositive of the ineffectiveness claim.’’ (Citations omitted; footnote added;

internal quotation marks omitted.) Sewell v. Commissioner of Correction, 168 Conn. App. 735, 741–42, 147

A.3d 196 (2016), cert. denied, 324 Conn. 907, 152 A.3d

1245 (2017).

In the context of a plea bargain, ‘‘[a] defense lawyer in

a criminal case has the duty to advise his client fully on

whether a particular plea to a charge appears to be

desirable.’’ (Internal quotation marks omitted.) Vazquez

v. Commissioner of Correction, 123 Conn. App. 424,

437, 1 A.3d 1242 (2010), cert. denied, 302 Conn. 901, 23

A.3d 1241 (2011). ‘‘Although the defendant ultimately

must decide whether to accept a plea offer or proceed

to trial, this critical decision, which in many instances

will affect a defendant’s liberty, should be made by a

represented defendant with the adequate professional

assistance, advice, and input of his or her counsel.

Counsel should not make the decision for the defendant

or in any way pressure the defendant to accept or reject

the offer, but counsel should give the defendant his or

her professional advice on the best course of action

given the facts of the particular case and the potential
total sentence exposure.’’ (Emphasis omitted.) Barlow

v. Commissioner of Correction, 150 Conn. App. 781,

800, 93 A.3d 165 (2014). ‘‘We are mindful that [c]ounsel’s

conclusion as to how best to advise a client in order

to avoid, on the one hand, failing to give advice and,

on the other, coercing a plea enjoys a wide range of

reasonableness . . . . Accordingly, [t]he need for recommendation depends on countless factors, such as

the defendant’s chances of prevailing at trial, the likely

disparity in sentencing after a full trial compared to the

guilty plea . . . whether [the] defendant has maintained his innocence, and the defendant’s comprehension of the various factors that will inform [his] plea

decision.’’ (Citation omitted; internal quotation marks

omitted.) Sanders v. Commissioner of Correction, 169

Conn. App. 813, 828, 153 A.3d 8 (2016), cert. denied,

325 Conn. 904, 156 A.3d 536 (2017).

Although the petitioner argues that the court improperly rejected his claim of ineffective assistance of counsel, he has, in the present appeal, narrowed the specific

allegations of ineffective representation on which his

claim is based. The petitioner asserts that Attorney

Polan’s failure to adequately advise him about the plea

offer constituted deficient performance. Specifically,

the petitioner argues that Attorney Polan rendered ineffective assistance of counsel by ‘‘failing to reasonably

explain the contours of the pretrial, court-indicated

twenty-five year offer to the petitioner, including the

strength of the state’s case against the petitioner, the

maximum possible sentence exposure and the legal and

practical advisability of accepting the plea offer.’’ We

agree with the habeas court that the petitioner failed

to demonstrate that Attorney Polan’s advice regarding

the plea offer was deficient.

First, we must address the petitioner’s challenges to

the court’s factual findings. ‘‘To the extent that factual

findings are challenged, this court cannot disturb the

underlying facts found by the habeas court unless they

are clearly erroneous. . . . [A] finding of fact is clearly

erroneous when there is no evidence in the record to

support it . . . or when although there is evidence to

support it, the reviewing court on the entire evidence

is left with the definite and firm conviction that a mistake has been committed.’’ (Internal quotation marks

omitted.) Fields v. Commissioner of Correction, 179

Conn. App. 567, 576, 180 A.3d 638 (2018).

The petitioner disputes the court’s finding that Attorney Polan advised him through ‘‘extensive discussions’’

about the case against him. After a thorough review of

the record, we conclude that there is ample evidentiary

support for the court’s finding. Attorney Polan requested

several continuances from June 15 to November 4,

2004, in order to provide the petitioner time to consider

the plea offer. During this period of time, the petitioner

discussed the offer with counsel, who advised him of
the state’s evidence, the pros and cons of going to trial,

the weaknesses of the state’s case, and possible defenses to pursue. Attorney Polan also discussed the potential sentence exposure with the petitioner, as well as his

chances of success at trial. On the basis of this evidence,

we conclude that the court’s finding that Attorney Polan

advised the petitioner through extensive discussions

about the case was not clearly erroneous.

The petitioner also challenges the court’s finding that

‘‘there was evidence to ‘suggest that Attorney Polan did,

in fact, recommend that the petitioner plead guilty.’ ’’

Contrary to the petitioner’s argument, the testimony of

Brody at the petitioner’s sentencing supports this finding of fact. As we have discussed previously in this

opinion, Brody testified that the petitioner lacked judgment and that it was his lack of judgment that caused

him to go to trial ‘‘as opposed to accepting the advice

of counsel and perhaps taking a plea.’’ We conclude

that the court properly found that there was evidence

to suggest that Attorney Polan did recommend that the

petitioner plead guilty.

Next, we turn to the court’s determination that Attorney Polan’s representation was not deficient. We conclude that the advice provided to the petitioner by Attorney Polan was adequate for him to make an informed

decision about whether to accept the state’s plea offer.

The petitioner argues that Attorney Polan’s representation was deficient because she failed to explain the

strength of the state’s case against him, advise him of

the maximum possible sentence for murder, or make

a recommendation as to whether he should accept the

proposed plea bargain. Despite these allegations, the

petitioner has not demonstrated, as required under the

performance prong of Strickland, that Attorney Polan’s

advice fell below an objective standard of reasonableness. See Strickland v. Washington, supra, 466 U.S.

687–88; Sewell v. Commissioner of Correction, supra,

168 Conn. App. 741–42. The court found that, in fulfilling

her constitutional obligations, Attorney Polan ‘‘made

[the petitioner] aware of the mandatory minimum sentence, the witness statements, warrant affidavits and

the strengths and weaknesses of the state’s case.’’ Attorney Polan wrote the petitioner a letter in which she

explained the plea agreement and discussed the pros

and cons of this agreement with him. She estimated

that his chance of success at trial was ‘‘50/50’’ and told

him that he would not get more than thirty-five years

if he was found guilty at trial.

Additionally, there is no requirement that counsel specifically recommend that the petitioner accept a plea

offer. Barlow v. Commissioner of Correction, supra,

150 Conn. App. 794–95. As the habeas court observed,

counsel’s duty is to provide an informed opinion regarding the plea offer under the circumstances of the case.

In the present case, trial counsel had ‘‘extensive discus-
sions with the petitioner about the strengths and weaknesses of the case, expressed her belief as to the likelihood of success after trial, and told [the petitioner]

that, in the end, it was his choice to make.’’ Accordingly,

we agree with the habeas court that Attorney Polan

adequately advised the petitioner concerning the plea

offer.

The judgment is affirmed.

In this opinion the other judges concurred.

1 The petitioner elected a bench trial on the charge of carrying a pistol

without a permit and a jury trial on the charge of murder.

2

In its opinion affirming the judgment of conviction, our Supreme Court

set forth the facts underlying the conviction. State v. Carrasquillo, supra,

290 Conn. 211–13. We do not repeat those facts in this opinion because they

are not relevant to the issues presented in this appeal.

3 The petition also contained a second count in which the petitioner

asserted a violation of his right to due process under the sixth and fourteenth

amendments to the United States constitution. In its memorandum of decision denying the petition, the habeas court stated that the due process claim

did not warrant review apart from the petitioner’s ineffective assistance of

counsel claim, as the due process claim ‘‘is inextricably interwoven with

the petitioner’s claim of ineffective assistance of counsel.’’ In the present

appeal, the petitioner does not raise a claim of error related to this portion

of the habeas court’s ruling.

4 At the time of the habeas trial, Attorney Dearington had retired from

his position as state’s attorney for the judicial district of New Haven.

5

In the present appeal, the petitioner makes no claim in relation to this

second offer. The petitioner’s claim on appeal is related solely to the representation he received with respect to the pretrial plea offer.

6 The court found that Attorney Polan made the petitioner aware of the

‘‘mandatory minimum sentence, the witness statements, warrant affidavits

and the strengths and weaknesses of the state’s case.’’ The court also found

that Attorney Polan speculated that if the petitioner were found guilty, he

would ‘‘get no more than thirty-five years to serve . . . .’’ In terms of providing a recommendation that the petitioner accept the offer, the court found

that there was no requirement that counsel ‘‘tell their clients what the client’s

decision should be.’’

Additionally, the court observed that there was evidence before the court

that suggested that Attorney Polan did, in fact, recommend that the petitioner

plead guilty. Karen Brody, a psychiatrist who had examined the petitioner,

testified at the petitioner’s sentencing hearing, the transcript of which was

entered as an exhibit at the habeas trial. In her testimony, Brody indicated

that the petitioner told her that it was his own lack of judgment that ‘‘caused

him to go to trial as opposed to accepting the advice of counsel and perhaps

taking a plea.’’

7

In the context of a claim of ineffective assistance that pertains to the

representation afforded in connection with a plea offer, our Supreme Court

has held that ‘‘to establish prejudice, a petitioner need establish only that

(1) it is reasonably probable that, if not for counsel’s deficient performance,

the petitioner would have accepted the plea offer, and (2) the trial judge

would have conditionally accepted the plea agreement if it had been presented to the court.’’ Ebron v. Commissioner of Correction, 307 Conn. 342,

357, 53 A.3d 983 (2012), cert. denied sub nom. Arnone v. Ebron, 569 U.S.

913, 133 S. Ct. 1726, 185 L. Ed. 2d 802 (2013).