Thiersaint v. Commissioner of Correction ( 2015 )

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THIERSAINT v. COMMISSIONER OF CORRECTION—FIRST DISSENT
PALMER, J., dissenting. I disagree with the majority’s
conclusion that Padilla v. Kentucky, 559 U.S. 356, 130
S. Ct. 1473, 176 L. Ed. 2d 284 (2010), which held that
the failure of defense counsel to advise a noncitizen
client regarding the immigration consequences of plead-
ing guilty establishes the performance prong of a claim
of ineffective assistance of counsel under the sixth
amendment, announced a new procedural rule within
the meaning of Teague v. Lane, 489 U.S. 28, 109 S. Ct.
1060, 103 L. Ed. 2d 334 (1989), and therefore does not
apply retroactively in habeas proceedings. Although I
agree that we should continue to apply the Teague
framework in determining whether a decision that rec-
ognizes a constitutional rule of criminal procedure
should be applied retroactively in habeas proceedings,
I would conclude that Padilla did not announce a new
rule because it was merely an application of the well
established standard governing ineffective assistance
of counsel claims under Strickland v. Washington, 466
U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984),
and because, under Connecticut law, the obligations of
counsel for the petitioner, Emmanuel Thiersant, were
consistent with the court’s holding in Padilla. I con-
clude, therefore, that the habeas court in the present
case properly determined that the petitioner was
deprived of his right to the effective assistance of coun-
sel. Accordingly, I respectfully dissent.1
The relevant facts and procedural history, which are
not disputed, may be summarized briefly as follows.
The petitioner is a native of Haiti who moved to the
United States in 1994, when he was fourteen years old.
Shortly after his arrival, he was critically injured in a
motor vehicle accident, and required the amputation of
his right leg above the knee. Following the accident,
the petitioner was hospitalized for eight months, and
was administered a variety of drugs for his injuries.
After leaving the hospital, he developed an addiction
to crack cocaine. In 2006, the petitioner was arrested
and charged with various narcotics offenses after mak-
ing two $20 sales of crack cocaine to an undercover
police officer. The petitioner was represented by Attor-
ney John Imhoff. In 2007, the petitioner pleaded guilty
to possession of cocaine with intent to sell in violation
of General Statutes § 21a-277 (a), and, based on his
conviction for that offense, he was subsequently
ordered removed from the United States. Thereafter,
the petitioner commenced the present habeas action,
alleging that Imhoff had failed to advise him of the
immigration consequences of his guilty plea in violation
of Padilla v. Kentucky, supra, 559 U.S. 374. The habeas
court determined that Padilla, which was decided after
the petitioner’s conviction became final, applied retro-
actively to the petitioner’s claim.
On the merits of the petitioner’s claim, the habeas
court agreed with the petitioner that he had been
deprived of the effective assistance of counsel. The
court first determined that Imhoff had performed defi-
ciently because his representation fell below ‘‘an objec-
tive standard of reasonableness.’’ Strickland v.
Washington, supra, 466 U.S. 688. In support of this
conclusion, the habeas court found that Imhoff had
failed to advise the petitioner that his conviction under
§ 21a-277 (a) would constitute an aggravated felony for
immigration law purposes and that, as a result of that
conviction, he would be subject to mandatory detention
by the United States Immigration and Customs Enforce-
ment Agency upon the completion of his sentence. In
addition, the court found that Imhoff had failed to
advise the petitioner that his conviction would render
him ineligible for almost all defenses to removal, virtu-
ally assuring that he would be ordered removed from
the United States and permanently barred from
returning. According to the habeas court, those adverse
immigration consequences of a conviction under § 21a-
277 (a) were sufficiently clear and definite that Imhoff
had a duty to advise the petitioner about those conse-
quences prior to his plea. The court further concluded
that, at the time Imhoff represented the petitioner, a
reasonably competent defense attorney would have
provided such advice. Instead, Imhoff ‘‘gave the peti-
tioner differing, unspecific and incorrect advice, all of
which left room for the petitioner to believe that he
could contest his removal,’’ and advised the petitioner
to consult an immigration attorney for more specific
advice. The court also concluded that reasonably com-
petent counsel would have raised the petitioner’s immi-
gration status during plea negotiations in an effort to
obtain an alternative disposition that would not have
resulted in a conviction of an aggravated felony, and
Imhoff had failed to do so.
In addition, the habeas court found that the petitioner
was prejudiced by Imhoff’s deficient performance
because, had the petitioner known that his conviction
would subject him to near certain and permanent
removal from the United States, he would have insisted
on going to trial rather than pleading guilty. The habeas
court found that this would have been a rational deci-
sion based in large part on the conditions the petitioner
would face in Haiti upon his return to that country, as
well as the petitioner’s strong ties to the United States.
The petitioner has been a lawful permanent resident of
the United States for almost twenty years and currently
lives with his longtime girlfriend, who suffers from sei-
zures and often requires his assistance, and their young
daughter. As a result of the injuries he suffered in the
motor vehicle accident, the petitioner requires the use
of either a prosthesis or a wheelchair. The habeas court
credited evidence presented by the petitioner regarding
the inhumane conditions in Haiti for criminal deportees,
especially those who are disabled. Upon return to Haiti
as a criminal deportee, the petitioner would be subject
to indefinite detention in a cell measuring ten feet by
ten feet, containing twenty to sixty other detainees,
where temperatures reach 100 degrees and rodents,
insects, and disease are rampant. Detainees do not have
access to bathroom facilities or medical care, and many
detainees become seriously ill or die due to the extreme
conditions. Detainees also must rely on family members
or fellow detainees for food and water because it is not
provided by the government. Because the petitioner has
no family in Haiti, he would have to rely on his fellow
detainees or go without nourishment. Even if he were
released from detention, the petitioner likely would face
discrimination and harassment from Haitian citizens
because of his disability and his status as a criminal
deportee. As the habeas court observed, in light of these
extraordinary circumstances, the petitioner’s decision
to forgo the plea offer and proceed to trial would have
been a reasonable one regardless of the strength of the
state’s case against him because ‘‘he would have had
nothing to lose’’ by taking his chances at trial. The
habeas court therefore granted the petitioner’s petition
for a writ of habeas corpus and ordered the petitioner’s
conviction vacated so that he could stand trial on the
charges. The respondent, the Commissioner of Correc-
tion, appealed, claiming that the habeas court had
improperly concluded that Padilla applied retroactively
to the petitioner’s claim.
I
As the majority has explained, claims of ineffective
assistance of counsel at the plea stage are governed by
the standard set forth in Strickland v. Washington,
supra, 466 U.S. 687–91, and Hill v. Lockhart, 474 U.S.
52, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985). Under Strick-
land and Hill, a habeas petitioner must prove that
‘‘counsel’s representation fell below an objective stan-
dard of reasonableness . . . [and] that there is a rea-
sonable probability that, but for counsel’s errors, [the
petitioner] would not have pleaded guilty and would
have insisted on going to trial.’’2 (Citations omitted;
internal quotation marks omitted.) Johnson v. Commis-
sioner of Correction, 285 Conn. 556, 575–76, 941 A.2d
248 (2008). In Padilla v. Kentucky, supra, 559 U.S. 374,
the United States Supreme Court concluded that advice
regarding the immigration consequences of a guilty plea
is not categorically removed from the sixth amend-
ment’s protections, and that a criminal defense attorney
may render constitutionally ineffective assistance by
failing to advise a noncitizen client about such conse-
quences. Subsequently, in Chaidez v. United States,
U.S. , 133 S. Ct. 1103, 185 L. Ed. 2d 149 (2013), the
court concluded that Padilla does not apply retroac-
tively in federal habeas proceedings, so that a nonciti-
zen whose conviction became final before the decision
in Padilla was announced is not entitled to relief in
federal habeas court. In reaching its conclusion, the
court applied the retroactivity framework it previously
had set forth in Teague v. Lane, supra, 489 U.S. 288.
As the court explained, under Teague, when a decision
announces a ‘‘new rule, a person whose conviction is
already final may not benefit from the decision in a
[federal] habeas or similar proceeding. Only when we
apply a settled rule may a person avail herself of the
decision on collateral review.’’3 (Footnote omitted;
internal quotation marks omitted.) Chaidez v. United
States, supra, 1107. The court concluded that Padilla
announced a new rule and, consequently, declined to
give it retroactive effect. Id., 1113.
Of course, if we were bound to follow Chaidez, the
respondent in the present case would be entitled to
prevail on his appeal because, under Chaidez, Padilla
does not apply retroactively. As the United States
Supreme Court made clear in Danforth v. Minnesota,
552 U.S. 264, 128 S. Ct. 1029, 169 L. Ed. 2d 859 (2008),
however, Teague applies only to federal habeas review,
and states are therefore free to give broader retroactive
effect to a constitutional rule as a matter of state law.
In Danforth, the court explained that Teague’s ‘‘general
rule of nonretroactivity [was justified] in part by refer-
ence to comity and respect for the finality of state
convictions,’’ and that ‘‘[f]ederalism and comity consid-
erations are unique to federal habeas review of state
convictions. . . . If anything, considerations of comity
militate in favor of allowing state courts to grant habeas
relief to a broader class of individuals than is required
by Teague. And while finality is, of course, implicated
in the context of state as well as federal habeas, finality
of state convictions is a state interest, not a federal
one. It is a matter that [s]tates should be free to evaluate,
and weigh the importance of, when prisoners held in
state custody are seeking a remedy for a violation of
federal rights by their lower courts.’’ (Citation omitted;
emphasis in original.) Id., 279–80.
Accordingly, in determining whether to give retroac-
tive effect to Padilla, we need not follow Teague, and
may adopt our own retroactivity test for purposes of
state law. As the majority observes, however, we pre-
viously have adopted the Teague framework,4 and I
agree generally that we should continue to adhere to
that framework when determining whether a decision
applies retroactively to cases that otherwise have pro-
ceeded to final judgment. The Teague framework has
significant advantages, in that it gives proper weight to
the state’s important interest in ensuring the finality of
convictions, is relatively straightforward to apply, and
leads to consistent results.
As the United States Supreme Court itself has
expressly recognized, however, ‘‘[a] decision . . . that
a new rule does not apply retroactively under Teague
does not imply that there was no right and thus no
violation of that right at the time of trial—only that no
remedy will be provided in federal habeas courts.’’ Id.,
291. Accordingly, when we determine whether to give
a decision retroactive effect, we are not determining
whether the constitutional right in question existed at
the time of the alleged violation, but only whether to
afford a remedy for a violation of that right. It necessar-
ily follows, then, that when we decide not to give a rule
retroactive effect, we are deciding that an undetermined
number of constitutional violations will stand uncor-
rected. This fact militates in favor of a more flexible
or liberal application of the Teague framework when,
as here, considerations of federalism and comity do not
come into play.
Furthermore, critics of the Teague framework have
pointed out that the United States Supreme Court has
given an exceedingly broad interpretation to the defini-
tion of a new rule, thereby restricting significantly the
availability of remedies for constitutional violations. As
first articulated in Teague, a decision was deemed to
announce a new rule if the result was not ‘‘dictated by
precedent’’ existing at the time the defendant’s convic-
tion became final. (Emphasis omitted.) Teague v. Lane,
supra, 489 U.S. 301. Subsequently, the Supreme Court
‘‘has greatly expanded the meaning of what is ‘new’ to
include results not ‘apparent to all reasonable jurists’
at the time.’’ Commonwealth v. Sylvain, 466 Mass. 422,
433, 995 N.E.2d 760 (2013), quoting Lambrix v. Sin-
gletary, 520 U.S. 518, 527–28, 117 S. Ct. 1517, 137 L. Ed.
2d 771 (1997). Consequently, a decision is considered
new for purposes of Teague ‘‘even when it is controlled
or governed by prior law and is the most reasonable
interpretation of that law, unless no other interpretation
is reasonable.’’ Rhoades v. State, 149 Idaho 130, 138,
233 P.3d 61 (2010), cert. denied, U.S. , 131 S.
Ct. 1571, 179 L. Ed. 2d 477 (2011), citing Butler v. McKel-
lar, 494 U.S. 407, 415, 110 S. Ct. 1212, 108 L. Ed. 2d 347
(1990). Because this standard is so broad, ‘‘decisions
defining a constitutional safeguard rarely merit applica-
tion on collateral review.’’ Colwell v. State, 118 Nev.
807, 818, 59 P.3d 463 (2002), cert. denied, 540 U.S. 981,
124 S. Ct. 462, 157 L. Ed. 2d 370 (2003). Although the
United States Supreme Court has deemed this approach
to be appropriate in the context of determining whether
to apply a rule retroactively on federal habeas review
of state convictions, the same federalism and comity
concerns are not implicated when a state determines
whether to apply the rule for purposes of its own habeas
proceedings. In fact, with respect to the state’s signifi-
cant interest in finality, because state collateral review
generally takes place sooner than federal collateral
review, the adverse effect on that interest is less pro-
nounced in the former context than it is in the latter.5
Thus, a number of states have recognized that the
restrictive approach to retroactivity mandated by
Teague and its progeny provides insufficient protection
for criminal defendants seeking to vindicate constitu-
tional rights in state habeas proceedings; see, e.g.,
Rhoades v. State, supra, 138–39; Commonwealth v. Syl-
vain, supra, 433–35; Colwell v. State, supra, 818–20; an
observation with which I agree. I therefore believe that
the decision of whether ‘‘to give retroactive effect to a
rule of law [under the Teague framework] should reflect
independent judgment, based upon the concerns of this
[c]ourt and the uniqueness of our state, our [c]onstitu-
tion, and our long-standing jurisprudence.’’ (Internal
quotation marks omitted.) Rhoades v. State, supra, 139.
Applying the Teague framework to the present case,
and with the foregoing considerations in mind, I would
conclude that Padilla did not announce a new constitu-
tional rule. In reaching this conclusion, I agree with
Justice Sotomayor’s dissent in Chaidez, in which she
explains that Padilla did not announce a new rule under
Teague because it was merely an application of the rule
set forth in Strickland. Chaidez v. United States, supra,
133 S. Ct. 1114. Furthermore, Connecticut case law and
practice at the time Padilla was decided support rather
than foreclose this conclusion and, contrary to the con-
cern expressed by the majority, applying Padilla retro-
actively would not open the floodgates to petitioners
seeking relief for alleged violations of Padilla.
As the majority opinion explains, the court in Chaidez
acknowledged that, ‘‘[w]here the beginning point of our
analysis is a rule of general application, a rule designed
for the specific purpose of evaluating a myriad of factual
contexts, it will be the infrequent case that yields a
result so novel that it forges a new rule, one not dictated
by precedent.’’ (Internal quotation marks omitted.) Id.,
1107. The court further acknowledged that, because
Strickland itself is a rule of general application, ‘‘gar-
den-variety applications of the test in Strickland . . .
for assessing claims of ineffective assistance of counsel
do not produce new rules.’’ Id. According to the court,
however, ‘‘Padilla did something more’’ than merely
apply Strickland to a new factual context. Id., 1108.
Specifically, the court explained, ‘‘[b]efore deciding if
failing to provide [advice regarding immigration conse-
quences] fell below an objective standard of reasonable-
ness, Padilla considered a threshold question: Was
advice about deportation categorically removed from
the scope of the [s]ixth [a]mendment right to counsel
because it involved only a collateral consequence of a
conviction, rather than a component of the criminal
sentence?’’ (Internal quotation marks omitted.) Id. As
the court further explained, it had never decided
whether the sixth amendment requires attorneys to
advise their clients regarding the collateral conse-
quences of a conviction, and state and lower federal
courts had been nearly unanimous in concluding that
it does not. Id., 1108–1109. According to the court, this
meant that its decision in Padilla was not ‘‘ ‘dictated’ ’’
by precedent, and, therefore, that it announced a new
rule. (Emphasis omitted.) Id., 1110.
In dissent, Justice Sotomayor, joined by Justice Gins-
burg, argued that Padilla did not announce a new rule
because it merely applied ‘‘the existing rule of Strick-
land . . . in a new setting, the same way the [c]ourt has
done repeatedly in the past: by surveying the relevant
professional norms and concluding that they unequivo-
cally required attorneys to provide advice about the
immigration consequences of a guilty plea.’’ Id., 1114.
Although, as I have indicated, the United States
Supreme Court has taken a broad view of what consti-
tutes a new rule, it has also stated that ‘‘a case does
not announce a new rule [when] it [is] merely an applica-
tion of the principle that governed a prior decision to
a different set of facts.’’ (Emphasis in original; internal
quotation marks omitted.) Id., 1107, quoting in part
Teague v. Lane, supra, 489 U.S. 307. Thus, whether a
rule is new ‘‘depends in large part on the nature of the
rule. If the rule in question is one which of necessity
requires a case-by-case examination of the evidence,
then we can tolerate a number of specific applications
without saying that those applications themselves cre-
ate a new rule.’’ Wright v. West, 505 U.S. 277, 308, 112
S. Ct. 2482, 120 L. Ed. 2d 225 (1992) (Kennedy, J., concur-
ring). In other words, ‘‘when all [the court does] is apply
a general standard to the kind of factual circumstances
it was meant to address, [it] will rarely state a new
rule for Teague purposes.’’ Chaidez v. United States,
supra, 1107.
Padilla was the quintessential application of a gen-
eral standard to a different set of facts. As Justice Soto-
mayor explained in her dissent, the standard for
determining deficient performance under Strickland is
‘‘simply reasonableness under prevailing professional
norms . . . [which] takes its content from the stan-
dards by which lawyers judge their professional obliga-
tions . . . and those standards are subject to change.’’
(Citations omitted; internal quotation marks omitted.)
Id., 1114. Put another way, the evolving nature of profes-
sional norms means that representation that satisfies
the sixth amendment one year may not do so the next,
but this does not mean that the sixth amendment stan-
dard itself changes. Rather, although the Strickland
reasonableness standard is pegged to a benchmark that
evolves over time, the rule remains the same. ‘‘That is
why, despite the many different settings in which it
has been applied, [the court had] never found that an
application of Strickland resulted in a new rule.’’ Id.,
1114–15 (Sotomayor, J., dissenting).
In Padilla, the court merely applied the standard set
forth in Strickland and concluded that, at the time of the
petitioner’s conviction, prevailing professional norms
required attorneys to advise their clients of the immigra-
tion consequences of pleading guilty, depending on the
severity and certainty of those consequences. Padilla
v. Kentucky, supra, 559 U.S. 366–69. The court first
surveyed the radical changes in immigration law from
the early 1900s—when Congress first authorized
removal of noncitizens convicted of certain crimes, but
also gave state and federal judges the power to make
binding recommendations at sentencing to prevent
removal—through the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996, 8 U.S.C. § 1101
et seq., which made removal ‘‘practically inevitable’’ for
noncitizens who commit an eligible offense. See id.,
360–64; see also Chaidez v. United States, supra, 133
S. Ct. 1116 (Sotomayor, J., dissenting). The court then
explained that professional norms had evolved to
respond to these changes in immigration law, such that
‘‘[a]uthorities of every stripe—including the American
Bar Association, criminal defense and public defender
organizations, authoritative treatises, and state and city
bar publications—universally require defense attorneys
to advise as to the risk of deportation consequences for
non-citizen clients.’’ (Internal quotation marks omitted.)
Chaidez v. United States, supra, 1116 (Sotomayor, J.,
dissenting), quoting Padilla v. Kentucky, supra, 367.
Thus, when the court in Padilla recognized a shift in
defense counsel’s obligations under the sixth amend-
ment, it was because prevailing professional norms had
evolved in response to changes in immigration law, not
because the court viewed the sixth amendment in a
substantively different way. In other words, ‘‘[b]oth
before Padilla and after, counsel was obligated to fol-
low the relevant professional norms. It was only
because those norms reflected changes in immigration
law that Padilla reached the result it did, not because
the [s]ixth [a]mendment right had changed at all.’’
Chaidez v. United States, supra, 1117 (Sotomayor, J.,
dissenting).
Like the court in Chaidez, the majority in the present
case relies heavily on the characterization of Padilla
as having answered a ‘‘threshold’’ question about the
scope of the sixth amendment. I believe that this view
of Padilla fails to account for the fact that the court
in Padilla answered that question simply by applying
the Strickland standard to the facts of the case. As
Justice Sotomayor explained in her dissent in Chaidez,
the court in Padilla expressly declined to address the
distinction between direct and collateral consequences
because ‘‘deportation has a ‘close connection to the
criminal process,’ and is ‘uniquely difficult to classify
as either a direct or a collateral consequence.’ ’’ Id.,
1117, quoting Padilla v. Kentucky, supra, 559 U.S. 366.
Prior to Padilla, the court had never decided whether
counsel’s duty to provide advice concerning the collat-
eral consequences of a conviction is within the scope
of the sixth amendment, and it still has not done so
because Padilla expressly refused to address that ques-
tion. Because the court concluded that immigration
consequences are not collateral, the court ultimately
could decide that the sixth amendment does not require
attorneys to advise their clients regarding the collateral
consequences of a conviction without disturbing the
holding of Padilla. Thus, the ‘‘chink-free wall between
direct and collateral consequences’’; Chaidez v. United
States, supra, 1110; remains unbreached.
The fact that the court in Padilla first addressed
whether the sixth amendment applied to the claim
before it was due to the nature of the decision the court
was reviewing and the question for which it had granted
review, rather than the nature of the sixth amendment
inquiry. The Supreme Court of Kentucky had concluded
that deportation was a collateral consequence of a con-
viction that fell outside the scope of the sixth amend-
ment and, therefore, that the appellee was not entitled
to an evidentiary hearing on his ineffective assistance
claim. Commonwealth v. Padilla, 253 S.W.3d 482,
484–85 (Ky. 2008). As Justice Sotomayor observes in
her dissent, the United States Supreme Court rejected
that conclusion simply by applying the Strickland stan-
dard. Chaidez v. United States, supra, 133 S. Ct. 1114.
Thus, although the court had to address whether immi-
gration consequences fell outside the scope of the sixth
amendment because of the Supreme Court of Ken-
tucky’s disposition of the case, it answered that ques-
tion by applying Strickland to determine the obligations
of defense counsel under the facts of the case, just as
it would for any other ineffective assistance of coun-
sel claim.
That the court in Padilla did not announce a new
rule is further supported by the fact that, in addressing
a claim under Padilla, a habeas court merely applies
the Strickland test as it would for any other ineffective
assistance claim. In a standard Strickland-Hill case in
which the petitioner claims that his attorney provided
ineffective assistance at the plea stage, the petitioner
must demonstrate that his attorney’s advice was objec-
tively unreasonable, such that it ‘‘ ‘fell below an objec-
tive standard of reasonableness’ ’’; Hill v. Lockhart,
supra, 474 U.S. 57; and that, ‘‘but for counsel’s errors,
he would not have pleaded guilty and would have
insisted on going to trial.’’ Id., 59. This is exactly the
inquiry that a habeas court makes when addressing a
claim under Padilla. See Padilla v. Kentucky, supra, 559
U.S. 366–69 (explaining that performance of criminal
defense attorney when advising noncitizen client is to
be judged by Strickland reasonableness standard, and
counsel’s duty in such cases depends on, inter alia,
clarity of potential immigration consequences client
faces). As in the present case, a petitioner seeking to
prevail on a claim under Padilla must show that a
reasonably competent attorney would have advised his
client regarding the immigration consequences of plead-
ing guilty, and that he would not have pleaded guilty
had his attorney provided such advice. Thus, the rule
to be applied when a petitioner brings a claim under
Padilla is the rule set forth in Strickland and Hill. The
habeas court does not apply a ‘‘Padilla rule’’ because
the court in Padilla did not establish a rule—it merely
applied the rule established by Strickland and Hill.
I recognize that the majority in Chaidez relied on the
fact that, prior to Padilla, the overwhelming majority
of courts to address the question concluded that immi-
gration consequences are collateral and therefore out-
side the scope of the sixth amendment.6 In Connecticut,
however, the obligations of defense counsel recognized
in Padilla were already required under state law and
prevailing professional norms at the time that decision
was issued. Contrary to the majority’s assertions, there
was no binding precedent from this court or the Appel-
late Court at that time holding that advice regarding
immigration consequences was outside the scope of
the sixth amendment right to the effective assistance
of counsel.7 All of the case law on which the majority
relies addresses what is required of the trial court when
canvassing a defendant to ensure that a plea is voluntary
under the fifth amendment. See State v. Malcolm, 257
Conn. 653, 662, 778 A.2d 134 (2001) (‘‘only substantial
compliance [with General Statutes § 54-1j] is required
. . . in order to ensure that the plea is voluntary’’ [foot-
note omitted]); State v. Andrews, 253 Conn. 497, 500,
513–14, 752 A.2d 49 (2000) (trial court’s failure to advise
regarding parole ineligibility did not render plea invol-
untary); State v. Irala, 68 Conn. App. 499, 520, 792 A.2d
109 (trial court’s failure to advise regarding specific
immigration consequences does not render plea invol-
untary), cert. denied, 260 Conn. 923, 797 A.2d 519, cert.
denied, 537 U.S. 887, 123 S. Ct. 132, 154 L. Ed. 2d 148
(2002). As the majority recognizes in declining to
address the petitioner’s alternative claim that his plea
was involuntary in violation of his right to due process,
whether a plea is voluntary under the fifth amendment is
a distinct issue from whether defense counsel provided
ineffective assistance under the sixth amendment.8 See
Lafler v. Cooper, U.S. , 132 S. Ct. 1376, 1390,
182 L. Ed. 2d 398 (2012) (‘‘[a]n inquiry into whether the
rejection of a plea is knowing and voluntary . . . is
not the correct means by which to address a claim of
ineffective assistance of counsel’’). Consequently, our
recognition that trial courts are not constitutionally
required to ‘‘instruct defendants on the intricacies of
immigration law’’; State v. Malcolm, supra, 663; did not,
as the majority maintains, have any bearing on defense
counsel’s obligations under the sixth amendment.
Moreover, some Connecticut cases decided prior to
Padilla may be read to suggest that the sixth amend-
ment does require criminal defense attorneys to advise
their clients regarding immigration consequences. For
example, in State v. Irala, supra, 68 Conn. App. 500–501,
the defendant sought to withdraw her pleas, claiming,
inter alia, that her trial counsel was ineffective for failing
to advise her regarding the immigration consequences
of her conviction. The trial court denied her motions
and, in affirming the trial court’s judgments, the Appel-
late Court concluded that the defendant’s attorney had
not performed deficiently because he had discussed
the immigration consequences of the pleas with the
defendant. Id., 506, 526–27. Thus, the Appellate Court
implicitly accepted that advice regarding immigration
consequences did fall within the scope of the sixth
amendment, but concluded that counsel in that case
met those obligations. Id., 527.
At least one habeas court prior to the decision in
Padilla found that an attorney had performed defi-
ciently by providing inaccurate advice regarding the
immigration consequences to his client of pleading
guilty. In Durant v. Coughlin, Superior Court, judicial
district of Ansonia-Milford at Milford, Docket No. CV-
99-066532 (July 12, 1999), the court determined that the
petitioner’s attorney performed deficiently under the
sixth amendment by erroneously advising the petitioner
that he would not be deported because he was married
to a United States citizen. The court determined, how-
ever, that the petitioner failed to prove that he was
prejudiced by counsel’s erroneous advice. See also
Dawkins v. Armstrong, Superior Court, judicial district
of New London, Docket No. CV-552015 (May 30, 2001)
(addressing petitioner’s claim on merits but concluding
that petitioner knew he would likely be deported, and,
in any event, that petitioner was not prejudiced). Thus,
the majority is incorrect that, at the time Padilla was
decided, the courts of this state held that advice regard-
ing immigration consequences is outside the scope of
the sixth amendment.
Although our case law had not yet definitively
answered the question that the court resolved in Padilla
regarding the scope of the sixth amendment, Connecti-
cut law was consistent with the result in that case. As
Justice Eveleigh observes, Connecticut frequently has
been ahead of our sister states and the federal govern-
ment in recognizing the right to counsel, having guaran-
teed that right long before it was formally incorporated
into our state constitution in 1818. In 1917, Connecticut
was the first state to establish a public defender system,
decades before the United States Supreme Court, in
Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L.
Ed. 2d 799 (1963), recognized that the federal constitu-
tion requires states to provide counsel to indigent crimi-
nal defendants. In addition to recognizing the
paramount importance of the right to counsel generally,
this court has specifically held that state law guarantees
the right to the effective assistance of counsel even
where it is not required by the federal constitution,
ensuring that Connecticut residents are not stripped of
important rights without competent representation. See
Lozada v. Warden, 223 Conn. 834, 838, 842–43, 613 A.2d
818 (1992) (recognizing right to effective assistance of
counsel in habeas proceedings); cf. State v. Anony-
mous, 179 Conn. 155, 159–60, 425 A.2d 939 (1979) (statu-
tory right to counsel in termination of parental rights
proceeding implicitly includes right to effective assis-
tance of counsel).
The criminal defense bar in Connecticut has long
been aware that noncitizen defendants often give great
weight to immigration consequences when deciding
whether to accept or to reject a guilty plea. As the
habeas court found, prevailing professional norms and
statutory law at the time of the petitioner’s plea required
criminal defense attorneys to advise their clients regard-
ing the immigration consequences of pleading guilty.
The habeas court credited the testimony of the petition-
er’s expert witnesses, Attorney Anthony D. Collins and
Attorney Christopher Caldwell, who both testified
regarding prevailing professional norms in Connecticut
at the time the petitioner pleaded guilty in 2007. Specifi-
cally, Collins and Caldwell both testified that a reason-
ably competent defense attorney representing a
noncitizen in 2007 had a duty to avoid allowing her
client to be convicted of an aggravated felony ‘‘at all
costs,’’ to explain to her client the immigration conse-
quences of such a conviction, and to seek an alternate
disposition through plea negotiations. Moreover, as dis-
cussed by Justice Eveleigh in greater detail, training
available to criminal defense attorneys at that time pro-
vided detailed guidance on representing noncitizen
defendants in Connecticut, suggesting that the defense
bar was well aware of the need to advise such clients
regarding the immigration consequences of a con-
viction.
That prevailing professional norms were consistent
with the holding in Padilla is further supported by Con-
necticut statutory law, which has long recognized the
importance of ensuring that criminal defendants under-
stand that pleading guilty may carry immigration conse-
quences. The legislature enacted § 54-1j in 1982,
requiring trial court judges to advise defendants that
pleading guilty may carry the risk of deportation; see
Public Acts 1982, No. 82-177; and amended it in 2003
to require that judges provide defendants the opportu-
nity to discuss any potential immigration consequences
with their counsel before the court may accept a guilty
plea. See Public Acts 2003, No. 03-81, § 1. The 2003
amendment is particularly persuasive proof of prevail-
ing professional norms at the time of the petitioner’s
plea. Even if professional norms had not yet evolved
to the point that defense counsel recognized their obli-
gation to advise their clients regarding immigration con-
sequences prior to 2003, that amendment surely put the
defense bar on notice of that duty. Thus, although no
Connecticut case had yet recognized that the sixth
amendment required defense counsel to advise nonciti-
zen defendants regarding the immigration conse-
quences of a conviction, our statutory law and the actual
practices of the legal community were fully in accord
with the dictates of Padilla at least as early as 2003.
Finally, the finality concerns raised by the majority
that traditionally counsel against applying a decision
retroactively on collateral review are not implicated in
the present case because the number of noncitizens
who would be eligible for relief in Connecticut is lim-
ited, and the number who would actually be able to
obtain relief is further limited by the Strickland stan-
dard. As the petitioner has underscored, a decision to
apply Padilla retroactively in state habeas proceedings
would only lead to a new trial for those who, like the
petitioner: (1) are noncitizens; (2) have pleaded guilty
to an offense that would result in their removal; (3)
whose convictions became final before 2010; (4) have
not yet been deported; (5) were not advised that plead-
ing guilty would subject them to removal; (6) pleaded
guilty at a time when a reasonably competent attorney
would have provided such advice; (7) would not have
pleaded guilty had they been so advised; and (8) can
prove that such a decision would have been a rational
one under the circumstances.9 These requirements will
make it exceedingly difficult for a petitioner to prevail
under Padilla on collateral review.
The Strickland standard itself also would limit the
number of petitioners entitled to relief, adequately pro-
tecting the finality of convictions and preventing a flood
of overturned convictions. In determining whether an
attorney’s performance was constitutionally deficient,
Strickland expressly instructs courts to ‘‘eliminate the
distorting effects of hindsight’’ and to ‘‘evaluate the
conduct from counsel’s perspective at the time.’’ Strick-
land v. Washington, supra, 466 U.S. 689. This means
that whether an attorney’s advice was constitutionally
deficient depends on whether the advice conformed to
professional norms at the time of the plea. While it is
clear that professional norms in Connecticut required
defense counsel to advise their clients about immigra-
tion consequences at the time the petitioner pleaded
guilty in 2007, the claims of noncitizens who pleaded
guilty prior to that date would be judged by the profes-
sional norms as of the date of their pleas. In addition,
under Strickland’s prejudice prong, a defendant must
prove that, if he had been advised about the risk of
deportation, ‘‘he would not have pleaded guilty and
would have insisted on going to trial’’; Hill v. Lockhart,
supra, 474 U.S. 59; and that ‘‘a decision to reject the
plea bargain would have been rational under the circum-
stances.’’ Padilla v. Kentucky, supra, 559 U.S. 372. This
difficult task is especially challenging in cases alleging
a violation of Padilla because the petitioner must con-
vince the habeas court that he would have insisted on
a trial even though he likely would face a substantially
greater sentence upon conviction, and then would still
be subject to deportation after serving that sentence.
As the court observed in Padilla, ‘‘[t]he nature of relief
secured by a successful collateral challenge to a guilty
plea—an opportunity to withdraw the plea and proceed
to trial—imposes its own significant limiting principle:
[t]hose who collaterally attack their guilty pleas lose
the benefit of the bargain obtained as a result of the
plea. Thus, a different calculus informs whether it is
wise to challenge a guilty plea in a habeas proceeding
because, ultimately, the challenge may result in a less
favorable outcome for the [petitioner] . . . .’’ (Empha-
sis in original.) Id., 372–73. For these reasons, it is highly
unlikely that applying Padilla retroactively will lead to
an appreciable number of new trials.
The refusal of the United States Supreme Court to
apply Padilla retroactively in federal habeas proceed-
ings is understandable, given the much larger pool of
noncitizens to whom such a decision would apply and
the comity considerations necessarily implicated by any
such decision. Those concerns, however, simply do not
apply to our decision whether to apply Padilla retroac-
tively. As discussed previously, moreover, prevailing
professional norms and statutory law in Connecticut
required defense attorneys to advise their clients
regarding immigration consequences long before the
court in Padilla formally recognized that requirement
under the sixth amendment. I would conclude, there-
fore, that Padilla did not announce a new rule under
Connecticut law, and that the habeas court properly
applied Padilla retroactively to the petitioner’s claim.
II
I now turn to the merits of the petitioner’s ineffective
assistance claim. In light of its findings, which are sup-
ported by the record, the habeas court properly found
that Imhoff’s performance was objectively unreason-
able. The habeas court found that, at the time the peti-
tioner pleaded guilty, a reasonably competent attorney
would have been aware that possession of narcotics
with intent to sell in violation of § 21a-277 (a) consti-
tutes an aggravated felony. The habeas court further
found that a reasonably competent attorney in Imhoff’s
position would have advised the petitioner that, upon
conviction of an aggravated felony, he would be subject
to mandatory removal from the United States, ineligible
for virtually all defenses to removal, and permanently
barred from returning to the United States. Consistent
with Padilla, the habeas court noted that, because the
law regarding the immigration consequences of the peti-
tioner’s conviction was ‘‘clear and succinct,’’ Imhoff
had a duty to provide the petitioner with correct advice
regarding those consequences. See Padilla v. Kentucky,
supra, 559 U.S. 368–69. The habeas court further found
that Imhoff failed to meet that standard because he ‘‘was
unaware of the specific consequences of the petitioner’s
plea in this case and as a result was unable to, and did
not, provide clear and accurate advice.’’ Rather than
correctly advising the petitioner that a conviction under
§ 21a-277 (a) would constitute an aggravated felony,
virtually assuring that he would be permanently
removed from the United States, Imhoff gave the peti-
tioner vague advice that did not impress upon him the
grave and certain nature of the immigration conse-
quences he faced. As the habeas court also stated,
‘‘[a]dvising the petitioner, who was indigent and incar-
cerated, to obtain and consult with an immigration
attorney, when he had no ability or resources to do
so,’’ fell below the standard expected of reasonably
competent counsel under the sixth amendment.
The habeas court also found that this is one of the
rare cases in which the evidence establishes that, had
the petitioner been advised about the immigration con-
sequences of his guilty plea, he would have insisted on
going to trial, and that such a decision would have been
‘‘rational under the circumstances.’’ Padilla v. Ken-
tucky, supra, 559 U.S. 372. The petitioner, who has been
a permanent resident of the United States for almost
twenty years, has strong family ties to this country in
general and to Connecticut in particular, and no family
connections in Haiti whatsoever. Although this may
be true of many noncitizens—and alone, likely to be
insufficient to satisfy the prejudice prong of the Strick-
land-Hill test—the petitioner’s case is compelling given
the extremely harsh conditions that he would face upon
his return to Haiti. As the habeas court found, criminal
deportees to Haiti are subject to ‘‘deplorable and inhu-
mane conditions’’ that include being held in an over-
crowded cell where disease is rampant and
temperatures reach 100 degrees, with no bathroom
facilities or access to medical care. As deplorable as
the conditions are in Haiti for criminal deportees gener-
ally, the petitioner likely would be treated even more
harshly because of his disability, as ‘‘disabled persons
. . . are treated as outcasts in prison and in society
generally’’ and ‘‘[a]n amputee, like the [petitioner],
would not be provided a wheelchair or prosthesis in
the holding cells, or any medical treatment or medica-
tions.’’ It is no wonder, then, that the habeas court
credited the petitioner’s testimony that ‘‘he would have
risked spending significantly more time in jail in this
country rather than be deported to Haiti.’’
Although it ordinarily is well-nigh impossible for a
petitioner to prove that it would have been objectively
reasonable to forgo a favorable plea agreement that
offers a dramatically reduced jail sentence and insist
on a trial when, as in the present case, the state had
overwhelming evidence of guilt—especially in view of
the fact that the petitioner is subject to mandatory
deportation after serving his sentence—the petitioner’s
case presents extraordinary circumstances that justify
affording him relief. I would conclude, therefore, that
the habeas court properly determined that the peti-
tioner was deprived of his right to the effective assis-
tance of counsel. Accordingly, I respectfully dissent.
1
I therefore agree with Justice Eveleigh’s conclusion that Padilla applies
retroactively in state habeas proceedings, and I also agree with a portion
of his analysis and reasoning. I am concerned, however, that the approach
he advocates would, in practice, lead to near universal retroactivity for all
constitutional rules, and that a new trial will be required in every such case,
no matter when the conviction was obtained. I therefore am unable to
agree that we should apply a constitutional rule retroactively whenever ‘‘the
fundamental fairness of a trial or plea is seriously diminished without the
rule . . . .’’ Although this test seems sensible in theory, the concept of
‘‘fundamental fairness’’ is so amorphous that virtually all constitutional rules
of criminal procedure pertaining to a criminal trial or plea may be said to
implicate ‘‘fundamental fairness’’ in one way or another. Insofar as the vast
majority of such rules would be subject to retroactive applicability under
Justice Eveleigh’s test, I do not believe that the test takes sufficient account
of the state’s significant interest in finality. It bears emphasis, moreover,
that new substantive rules invariably apply retroactively because they ‘‘nec-
essarily carry a significant risk that a defendant stands convicted of an act
that the law does not make criminal or faces a punishment that the law
cannot impose upon him,’’ whereas only procedural rules are subject to the
Teague retroactivity test because ‘‘[t]hey do not produce a class of persons
convicted of conduct the law does not make criminal, but merely raise the
possibility that someone convicted with use of the invalidated procedure
might have been acquitted otherwise.’’ (Internal quotation marks omitted.)
Schriro v. Summerlin, 542 U.S. 348, 352, 124 S. Ct. 2519, 159 L. Ed. 2d 442
(2004). As I explain hereinafter, I believe that we should continue to follow
the Teague framework, including the important exceptions delineated by
the United States Supreme Court; see footnote 3 of this dissenting opinion;
because that framework gives due weight to the state’s legitimate interests
and leads to consistent results. As I further explain, however, I would
conclude that Padilla applies retroactively in habeas proceedings in this
state because it did not announce a new rule.
2
The court in Strickland set forth the general standard for establishing
an ineffective assistance of counsel claim, requiring a petitioner to prove
both that trial counsel performed deficiently and that, ‘‘but for counsel’s
unprofessional errors, the result of the proceeding would have been differ-
ent.’’ Strickland v. Washington, supra, 466 U.S. 694. In Hill, the court held
that the Strickland standard applies to claims of ineffective assistance at
the plea stage, but explained that the prejudice prong requires a petitioner
to prove that, ‘‘but for counsel’s errors, he would not have pleaded guilty
and would have insisted on going to trial.’’ Hill v. Lockhart, supra, 474 U.S. 59.
3
The court in Teague recognized two exceptions to the general rule of
nonretroactivity for new constitutional rules. See Teague v. Lane, supra,
489 U.S. 307 (‘‘First, a new rule should be applied retroactively if it places
certain kinds of primary, private individual conduct beyond the power of
the criminal law-making authority to proscribe. . . . Second, a new rule
should be applied retroactively if it requires the observance of those proce-
dures that . . . are implicit in the concept of ordered liberty.’’ [Citation
omitted; internal quotation marks omitted.]). Because I would conclude that
Padilla did not announce a new rule, those exceptions are not relevant to
my analysis.
4
I note, however, that we have never addressed the question of whether
to give retroactive effect to a particular decision where, as in the present
case, the United States Supreme Court has previously ruled that the decision
does not apply retroactively on federal habeas review. In fact, we have only
actually conducted a Teague analysis in one case, Duperry v. Solnit, 261
Conn. 309, 318–24, 803 A.2d 287 (2002), wherein we reversed the judgment
of the habeas court on the ground that it announced a new rule in a collateral
proceeding. In the remaining cases on which the majority relies, we did not
actually apply the Teague framework at all. See State v. Payne, 303 Conn.
538, 549–50, 550 n.10, 34 A.3d 370 (2012) (adopting new approach to joinder
of criminal trials under rules of practice and noting that it will not apply
retroactively on collateral review); Johnson v. Warden, 218 Conn. 791, 796–
98, 591 A.2d 407 (1991) (concluding that United States Supreme Court deci-
sion on which petitioner relied did not apply retroactively because it had
resolved question of statutory interpretation and did not announce constitu-
tional rule). I also note that I agree with the majority that nothing we said
in Luurtsema v. Commissioner of Correction, 299 Conn. 740, 12 A.3d 817
(2011), suggests that we should no longer follow the Teague framework in
determining whether a constitutional rule applies retroactively.
5
As the Nevada Supreme Court recently put it, ‘‘[t]he policy concerns
behind Teague are partly germane to collateral review by this and other
state courts and partly not. We share the concern that the finality of convic-
tions not be unduly disturbed, but the need to prevent excessive interference
by federal habeas courts has no application to habeas review by state courts
themselves. And even the effect on finality is not as extreme when a state
appellate court, as opposed to a federal court, decides to apply a rule
retroactively: first, the decision affects only cases within that state, and
second, most state collateral review occurs much sooner than federal collat-
eral review. In addition, we are concerned with encouraging the [trial]
courts of this state to strive for perspicacious, reasonable application of
constitutional principles in cases where no precedent appears to be squarely
on point.’’ Colwell v. State, supra, 118 Nev. 818.
6
I note, however, that ‘‘[t]he standard for determining when a case estab-
lishes a new rule is objective, and the mere existence of conflicting authority
does not necessarily mean a rule is new.’’ (Internal quotation marks omitted.)
Chaidez v. United States, supra, 133 S. Ct. 1120 (Sotomayor, J., dissenting).
This is especially true with cases involving a governing standard that, like
Strickland, will necessarily evolve to reflect current practices. Thus, in
the present case, the ‘‘earlier decisions show nothing more than that the
underlying professional norms had not yet evolved to require attorneys
to provide advice about deportation consequences.’’ Id., 1118 (Sotomayor,
J., dissenting).
7
In arguing to the contrary, the respondent relies on State v. Aquino, 89
Conn. App. 395, 406–407, 873 A.2d 1075 (2005), in which the Appellate Court
concluded that deportation was a collateral consequence outside the scope
of the sixth amendment. Subsequently, however, following our grant of
certification, we reversed the judgment of the Appellate Court and concluded
that that court did not have jurisdiction to address the claim and should
have dismissed the appeal as moot. State v. Aquino, 279 Conn. 293, 298–99,
901 A.2d 1194 (2006). Because the Appellate Court did not have jurisdiction
over the appeal in Aquino, its discussion of the merits was dicta and not
binding on habeas courts at the time Padilla was decided. Cf. State v.
Singleton, 274 Conn. 426, 440, 876 A.2d 1 (2005) (‘‘when a court dismisses
a case for lack of subject matter jurisdiction, any further discussion of the
merits of that case is dicta’’).
8
The majority also notes that, in Chaidez, the court included Connecticut
among the jurisdictions to have determined that advice concerning immigra-
tion consequences does not fall within the scope of the right to the effective
assistance of counsel. See Chaidez v. United States, supra, 133 S. Ct. 1109
n.8. The case on which the court in Chaidez relied for that proposition,
however, Niver v. Commissioner of Correction, 101 Conn. App. 1, 919 A.2d
1073 (2007), held no such thing. In Niver, the Appellate Court affirmed the
habeas court’s denial of a claim of ineffective assistance of counsel based
on counsel’s failure to provide adequate advice regarding the immigration
consequences of a plea, and, in setting forth the governing law, stated that
‘‘[t]he impact of a plea’s immigration consequences . . . is not of constitu-
tional magnitude . . . .’’ (Internal quotation marks omitted.) Id., 4. The
court did not resolve the case on those grounds, however, and went on to
conclude that counsel’s performance was not deficient because he ‘‘specifi-
cally discussed the potential immigration consequences of [the petitioner’s]
plea’’; id., 5; and that, in any event, the petitioner failed to prove that she
was prejudiced. Id., 5–6. Thus, Niver cannot fairly be read to stand for the
proposition for which it was cited in Chaidez.
9
Although the majority cites four cases in which Padilla claims were
rejected in the eight months following Chaidez as evidence that ‘‘the petition-
er’s claim that retroactive application of Padilla in Connecticut will have
a limited effect is belied by the facts,’’ the majority fails to acknowledge
that, in three of those cases, the habeas court denied the claim on the merits.
See Gonzalez v. Commissioner of Correction, 145 Conn. App. 28, 30, 74
A.3d 509 (noting habeas court determined that counsel adequately advised
petitioner regarding immigration consequences), cert. denied, 310 Conn.
929, 78 A.3d 145 (2013); Saksena v. Commissioner of Correction, Superior
Court, judicial district of Tolland, Docket No. CV-08-4002306-S (June 2, 2011)
(same), aff’d, 145 Conn. App. 152, 158–59, 76 A.3d 192, cert. denied, 310
Conn. 940, 79 A.3d 892 (2013); Alcena v. Warden, Superior Court, judicial
district of Tolland, Docket No. CV-10-4003448-S (May 5, 2011) (same; also
determined that petitioner did not establish prejudice). The court in the
fourth case did not reach the merits, rejecting the claim on the ground that
Padilla did not apply retroactively. Gjini v. Warden, Superior Court, judicial
district of Tolland, Docket No. CV-10-4003834-S (March 6, 2013). These cases
do not support the majority’s concerns that applying Padilla retroactively
would lead to a flood of new trials; in fact, they demonstrate that the
Strickland standard adequately protects the state’s interest in the finality
of convictions.