Gonzalez v. Commissioner of Correction ( 2021 )

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ALFREDO GONZALEZ v. COMMISSIONER
OF CORRECTION
(AC 43815)
Alvord, Prescott and Suarez, Js.
Syllabus
The petitioner, who had been convicted of several crimes in connection
with the shooting death of the victim, sought a writ of habeas corpus,
claiming, inter alia, that his trial counsel rendered ineffective assistance
for having followed a strategy that was based on an inaccurate statement
of the law. The petitioner specifically asserted that his right to due
process was violated because the statutory (§§ 53a-8 and 53a-55a)
scheme underlying his conviction of manslaughter in the first degree
with a firearm as an accessory does not require the state to prove, as
an essential element of accessorial liability, that he intended the princi-
pal’s use of a firearm. The habeas court concluded that the petitioner
failed to show how §§ 53a-8 and 53a-55a violated due process by shifting
to the defense the burden of proving an essential element of accessorial
liability, and, thus, that the petitioner had failed to prove that his counsel
rendered ineffective assistance. The court denied the petitioner’s habeas
petition, and, on the granting of certification, he appealed to this court.
On appeal, the respondent Commissioner of Correction contended that
the petitioner’s claim was procedurally barred pursuant to Teague v.
Lane (489 U.S. 288), which precludes a court on collateral review from
declaring a new constitutional rule after a conviction has become final.
Held that the habeas court properly denied the petitioner’s habeas peti-
tion, as state and federal precedent at the time his conviction became
final made clear that no constitutional rule existed then that required
the state to prove, as an essential element of accessorial liability for
manslaughter in the first degree with a firearm, that the accessory
intended the principal’s use of the firearm; moreover, the rule the peti-
tioner sought to establish was not, as he claimed, an application of
existing constitutional principles, as the United States Supreme Court
in Patterson v. New York (432 U.S. 197) had held prior to his conviction
that it was constitutionally permissible to require criminal defendants
to prove affirmative defenses that relate to culpability, which the legisla-
ture has required pursuant to statute (§ 53a-16b); furthermore, the rule
the petitioner sought to establish was procedural in nature pursuant to
Teague because it focused on the manner by which an accessory can
be deemed culpable for the use of a firearm by others and, thus, contrary
to his assertion, did not place a category of private conduct beyond the
power of the state to punish so as to satisfy that exception in Teague to
the prohibition against establishing new constitutional rules of criminal
procedure in collateral proceedings, as the rule the petitioner sought
would invalidate the provisions in §§ 53a-16b and 53a-55a that make a
criminal defendant’s lack of knowledge of the firearm an affirmative
defense, rather than an element of the offense.
Argued March 9—officially released June 29, 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.
W. Theodore Koch III, assigned counsel, for the appel-
lant (petitioner).
Rocco A. Chiarenza, assistant state’s attorney, with
whom, on the brief, were Maureen Platt, state’s attor-
ney, and Marc G. Ramia, senior assistant state’s attor-
ney, for the appellee (respondent).
Opinion
ALVORD, J. The petitioner, Alfredo Gonzalez, appeals
from the judgment of the habeas court denying his
petition for a writ of habeas corpus. The habeas court
granted his petition for certification to appeal. On
appeal, the petitioner claims that the habeas court
improperly rejected his claim that his right to due pro-
cess under the federal and state constitutions was vio-
lated because General Statutes §§ 53a-81 and 53a-55a2
do not require the state to prove, as an essential element
of accessorial liability for manslaughter in the first
degree with a firearm, that he intended the principal’s
use, carrying or threatened use of a firearm. We affirm
the judgment of the habeas court.
Our Supreme Court on direct appeal summarized the
underlying facts as reasonably found by the jury.3 ‘‘The
[petitioner] had engaged in an ongoing feud with the
victim, Samuel Tirado.4 On the evening of May 5, 2006,
the [petitioner] and three friends, Anthony Furs, Chris-
tian Rodriguez and Melvin Laguna, went out for the
evening in Rodriguez’ red GMC Yukon. They stopped
briefly at one bar, and then decided to go to a bar named
Bobby Allen’s in Waterbury because they knew that the
victim went there frequently, and they wanted to start
a fight with him. En route to Bobby Allen’s, the [peti-
tioner] observed that there were two guns in the Yukon,
in addition to a razor blade that he intended to use in
that fight, and remarked that, if he had the money, he
would give it to Furs to ‘clap,’ or shoot, the victim.
Rodriguez, who also disliked the victim, then offered
to pay Furs $1000 to shoot the victim, which Furs
accepted.
‘‘When they arrived at Bobby Allen’s, the [petitioner]
left the group briefly to urinate behind a nearby funeral
home. When he rejoined the group, Furs gave the [peti-
tioner] the keys to the Yukon and told him to go get
the truck because the victim was nearby speaking with
Rodriguez. The [petitioner] and Furs then drove a short
distance toward Bobby Allen’s in the Yukon, and Furs,
upon spotting the victim and Rodriguez outside the bar,
jumped out of the Yukon and shot the victim in the
chest with a black handgun, mortally wounding him.
Rodriguez and Laguna then fled the scene on foot, while
Furs and the [petitioner] drove off in the Yukon to a
friend’s nearby apartment on South Main Street. There-
after, with the assistance of friends, Furs5 and the [peti-
tioner] fled separately from the apartment, and the [peti-
tioner] subsequently disposed of the gun, first by hiding
it in a woodpile at his mother’s home, and later by
throwing it into Pritchard’s Pond (pond) in Waterbury.
‘‘Thereafter, Waterbury police officers investigating
the shooting questioned the [petitioner] after arresting
him on an outstanding motor vehicle warrant on May
6, 2006. The [petitioner] initially gave a statement deny-
ing any involvement in the incident. Subsequently, on
May 15, 2006, the Waterbury police reinterviewed the
[petitioner], at which time he admitted disposing of the
gun by throwing it into the pond. The [petitioner] then
accompanied the officers to the pond and showed them
where he had thrown the gun, which enabled a dive
team to recover it several days later.6 After they returned
to the police station, the [petitioner] gave the police a
second statement admitting that he had lied in his initial
statement and explaining his role in the events leading
to and following the shooting.
‘‘The state charged the [petitioner] in a six count
substitute information with murder as an accessory in
violation of § 53a-8 and General Statutes § 53a-54a (a),
conspiracy to commit murder in violation of General
Statutes §§ 53a-48 and 53a-54a, manslaughter in the first
degree with a firearm as an accessory in violation of
§§ 53a-8 and 53a-55a, conspiracy to commit assault in
the first degree in violation of § 53a-48 and General
Statutes § 53a-59 (a) (5), hindering prosecution in the
second degree in violation of General Statutes § 53a-
166, and criminal possession of a firearm in violation
of General Statutes § 53a-217 (a) (1). The [petitioner]
elected a jury trial. After evidence, the trial court denied
the [petitioner’s] motion for acquittal. The jury returned
a verdict finding him not guilty of accessory to murder
and conspiracy to commit murder, but guilty on all
other counts. The trial court [Miano, J.] rendered a
judgment of conviction in accordance with the jury’s
verdict and sentenced the [petitioner] to a total effective
sentence of thirty-eight years imprisonment, with ten
years of special parole.’’ (Footnote in original; footnote
omitted.) State v. Gonzalez, 300 Conn. 490, 492–95, 15
A.3d 1049 (2011).
The petitioner’s sole claim on direct appeal to our
Supreme Court was that ‘‘the trial court improperly
instructed the jury regarding the elements of the offense
of manslaughter in the first degree with a firearm as
an accessory.7 Specifically, the [petitioner] claim[ed]
that accessorial liability under § 53a-8 encompasses
both the specific intent to cause a result, in this case,
to cause the victim serious physical injury, as well as
the general intent to perform the physical acts that
constitute the offense of manslaughter in the first
degree with a firearm, including the use, carrying or
threatened use of a firearm.’’ (Footnote added; internal
quotation marks omitted.) Id., 495.
Our Supreme Court rejected the petitioner’s claim
that the trial court improperly instructed the jury. Spe-
cifically, our Supreme Court concluded that the trial
court’s instruction conformed with State v. Miller, 95
Conn. App. 362, 896 A.2d 844, cert. denied, 279 Conn.
907, 901 A.2d 1228 (2006), which ‘‘properly articulated
the elements of accessorial liability under § 53a-8 for
manslaughter in the first degree with a firearm in viola-
tion of § 53a-55a,’’ and declined the petitioner’s ‘‘invita-
tion to overrule that decision.’’ State v. Gonzalez, supra,300 Conn. 509–10. Moreover, our Supreme Court
adopted the conclusion set forth in Miller that, ‘‘[w]hen
a defendant is charged with a violation of § 53a-55a as an
accessory, the state need not prove that the defendant
intended the use, carrying or threatened use of the
firearm.’’8 Id., 510; State v. Miller, supra, 362. Accord-
ingly, our Supreme Court affirmed the petitioner’s con-
viction. State v. Gonzalez, supra, 510.
Thereafter, the self-represented petitioner filed a peti-
tion for a writ of habeas corpus in the United States
District Court for the District of Connecticut pursuant
to 28 U.S.C. § 2254. In his one count habeas petition,
the petitioner alleged that ‘‘Connecticut’s statutory
scheme of manslaughter in the [first] [d]egree with a
[f]irearm violates the [d]ue [p]rocess [c]lause of the
[fifth] and [fourteenth] amend[ments] [t]o [the] [United
States constitution]. . . . In the facts supporting this
ground, the petitioner contend[ed] that . . . § 53a-55a
is violative of the United States [c]onstitution in that it
does not require the state to prove an essential element
of the substantial crime charged: the intent to use a
firearm. . . . The respondents move[d] to dismiss the
petition on the ground that the petitioner ha[d] not
exhausted his state court remedies as to the sole ground
in the petition. The respondents argue[d] that the peti-
tioner did not fairly present the federal constitutional
challenge raised in ground one of the . . . petition in
his direct appeal to [our] Supreme Court. Thus, [the
respondents argued that] the claim has not been
exhausted.’’ (Citation omitted; internal quotation marks
omitted.) Gonzalez v. Commissioner, United States
District Court, Docket No. 3:11cv1012 (VLB) (D. Conn.
July 20, 2012). The federal District Court, Bryant, J.,
dismissed his petition for a writ of habeas corpus with-
out prejudice for failure to exhaust state court reme-
dies. Id.
The petitioner then filed a petition for a writ of habeas
corpus in our Superior Court. In his amended habeas
petition, the petitioner alleged that his ‘‘trial counsel
was ineffective for following a strategy that was based
on an inaccurate statement of the law, i.e., that the state
was required to prove specific intent that a firearm be
used.’’ The habeas court, Cobb, J., denied his amended
petition for a writ of habeas corpus; Gonzalez v. War-
den, Superior Court, judicial district of Tolland, Docket
No. CV-XX-XXXXXXX-S (March 17, 2014); and this court
dismissed his appeal therefrom. Gonzalez v. Commis-
sioner of Correction, 160 Conn. App. 902, 125 A.3d
296 (2015).
On February 13, 2015, the petitioner filed the present
petition for a writ of habeas corpus. In his third
amended habeas petition, the petitioner set forth the
following four counts, in which he alleged (1) that
‘‘§§ 53a-8 and 53a-55a—accessory to commit man-
slaughter in the first degree with a firearm—combine
in a way that violates the due process clause of the
[fifth] and [fourteenth] amend[ments] to the [United
States constitution] as well as article first, § [8], of the
Connecticut constitution in that they do not require the
state to prove an essential element of the substantial
crime charged: the intent to use a firearm’’ (due process
claim), (2) ineffective assistance of trial counsel,9 (3)
ineffective assistance of appellate counsel,10 and (4)
ineffective assistance of prior state habeas counsel.11
In his return, with respect to each of the substantive
grounds set forth in the third amended habeas petition,
the respondent, the Commissioner of Correction, left
the petitioner to his proof.
Following a trial, the habeas court, Bhatt, J., first
determined that the ‘‘resolution of the petitioner’s claim
in count one [is] dispositive of the claims in the
remaining counts . . . .’’ Thus, the court ‘‘focuse[d] its
discussion on the question of whether there is a . . .
due process violation in our statutory scheme for acces-
sory to manslaughter in the first degree with a firearm.’’
Ultimately, the court concluded that ‘‘the petitioner has
not shown how our statutory scheme violates the due
process clause by impermissibly shifting the burden of
an essential element to the defense and has failed in
his burden of proving ineffective assistance of counsel.’’
Accordingly, the court rendered judgment denying his
amended petition for a writ of habeas corpus. There-
after, the petitioner filed a petition for certification to
appeal from the judgment of the habeas court, which
was granted. This appeal followed.12
On appeal, the petitioner claims that the habeas court
improperly rejected his claim that his right to due pro-
cess under the federal and state constitutions was vio-
lated because §§ 53a-8 and 53a-55a do not require the
state to prove, as an essential element of accessorial
liability for manslaughter in the first degree with a fire-
arm, that he intended the principal’s use, carrying or
threatened use of a firearm. Specifically, the petitioner
maintains that, ‘‘[t]o convict an individual of the offense
of accessory to manslaughter in the first degree with
a firearm, in violation of . . . §§ 53a-8 [and] 53a-55a,
in accord with due process as guaranteed by the state
and federal constitutions, the state must prove that
(1) with the intent to cause serious physical injury to
another person, the principal causes the death of such
person, (2) in the commission of such offense, the prin-
cipal uses a firearm, and (3) the accessory intends that
the principal use a firearm.’’ (Emphasis added.)
The respondent contends that the principles enunci-
ated in Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060,
103 L. Ed. 2d 334 (1989), preclude this court from estab-
lishing the new constitutional rule of criminal proce-
dure proposed by the petitioner in a collateral habeas
action. Specifically, the respondent argues that the peti-
tioner ‘‘continues to seek . . . to have a new constitu-
tional right declared that requires, as a matter of due
process, the engrafting of a requirement that the state
prove that an accessory possess the intent that a firearm
be used in order to be convicted of the crime of man-
slaughter in the first degree with a firearm. While a
court may declare new constitutional rules in a direct
appeal from a criminal conviction, it lacks such author-
ity to do so once a conviction becomes final.’’ In reply
to the respondent’s contention, the petitioner maintains
that ‘‘Teague is inapplicable’’ because ‘‘existing prece-
dent dictated the result [he] seeks; therefore, it is not
a new rule . . . .’’ Alternatively, the petitioner argues
that the rule he seeks satisfies the first exception to
the general prohibition against establishing new consti-
tutional rules of criminal procedure in collateral pro-
ceedings as set forth in Teague v. Lane, supra, 311,
because it ‘‘places a category of private conduct beyond
the power of the state to punish.’’ We agree with the
respondent and conclude that the petitioner’s due pro-
cess claim is procedurally barred by Teague.13
‘‘When considering the potential retroactive applica-
tion of a new rule of constitutional criminal procedure,
we apply the rule of Teague v. Lane, supra, 489 U.S.
288. . . . In Teague, the United States Supreme Court
held that new constitutional rules of criminal procedure
should not be established in or applied to collateral
proceedings, including habeas corpus proceedings.
[Id.], 315–16. A rule is considered to be new when it
breaks new ground or imposes a new obligation on the
[s]tates or the [f]ederal [g]overnment. . . . To put it
differently, a case announces a new rule if the result
was not dictated by precedent existing at the time the
defendant’s conviction became final. . . . Id., 301. Fur-
ther, a holding is not so dictated . . . unless it would
have been apparent to all reasonable jurists. . . . On
the other hand, Teague also made clear that a case
does not announce a new rule, [when] it [is] merely
an application of the principle that governed a prior
decision to a different set of facts.’’ (Citations omitted;
emphasis in original; internal quotation marks omitted.)
Dyous v. Commissioner of Mental Health & Addiction
Services, 324 Conn. 163, 173–74, 151 A.3d 1247 (2016).
‘‘With two exceptions, a new rule will not apply retro-
actively to cases on collateral review. Teague v. Lane,
supra, 489 U.S. 311–13. First, if the new rule is substan-
tive, that is, if the rule places certain kinds of primary,
private conduct beyond the power of the criminal law-
making authority to proscribe . . . it must apply retro-
actively. Such rules apply retroactively because they
necessarily 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. . . .
‘‘Second, if the new rule is procedural, it applies retro-
actively if it is a watershed [rule] of criminal procedure
. . . implicit in the concept of ordered liberty . . .
meaning that it implicat[es] the fundamental fairness
and accuracy of [a] criminal proceeding. . . . Water-
shed rules of criminal procedure include those that
raise the possibility that someone convicted with use
of the invalidated procedure might have been acquitted
otherwise.’’ (Citations omitted; internal quotation
marks omitted.) Casiano v. Commissioner of Correc-
tion, 317 Conn. 52, 62–63, 115 A.3d 1031 (2015), cert.
denied sub nom. Semple v. Casiano, 577 U.S. 1202, 136
S. Ct. 1364, 194 L. Ed. 2d 376 (2016).
The first step in our Teague analysis is to determine
whether the habeas court in the present case could have
afforded the petitioner relief on the basis of established
jurisprudence governing his claim or whether affording
such relief would have required the habeas court to
establish a new constitutional rule of criminal proce-
dure. See Dyous v. Commissioner of Mental Health &
Addiction Services, supra, 324 Conn. 174–75. An analy-
sis of the precedent existing at the time the petitioner’s
conviction became final in 2011 makes clear that no
constitutional rule existed at that time that required the
state to prove, as an essential element of accessorial
liability for manslaughter in the first degree with a fire-
arm, that the accessory intended the principal’s use of
a firearm.
We begin with an analysis of our state precedent
existing at the time the petitioner’s conviction became
final. In the petitioner’s direct appeal, our Supreme
Court adopted the conclusion initially set forth in State
v. Miller, supra, 95 Conn. App. 362, that ‘‘the state need
not prove that the [petitioner] intended the [principal’s]
use, carrying or threatened use of the firearm.’’ (Internal
quotation marks omitted.) State v. Gonzalez, supra, 300
Conn. 510. Our Supreme Court noted the affirmative
defense provided by General Statutes § 53a-16b, which
provides in relevant part that, ‘‘[i]n any prosecution for
an offense under § 53a-55a . . . in which the defendant
was not the only participant, it shall be an affirmative
defense that the defendant: (1) Was not armed with a
pistol, revolver, machine gun, shotgun, rifle or other
firearm, and (2) had no reasonable ground to believe
that any other participant was armed with such a
weapon. Section 53a-16b is consistent with other areas
wherein the legislature has provided that the state must
prove the essential elements of the crime, and has left
it to the defendant to mitigate14 his criminal culpability
or sentencing exposure via an affirmative defense, par-
ticularly with respect to areas that uniquely are within
the defendant’s knowledge.’’ Id., 508. This precedent
remains binding on this court today.15 Accordingly, our
review of state precedent existing at the time the peti-
tioner’s conviction became final reveals that the consti-
tutional rule the petitioner seeks would not have been
apparent to all reasonable jurists and, as such, was
not dictated by established precedent. See Dyous v.
Commissioner of Mental Health & Addiction Services,
supra, 324 Conn. 173–74.
We next consider the landscape of federal precedent
existing at the time the petitioner’s conviction became
final. The petitioner maintains that United States
Supreme Court precedent existing at the time his con-
viction became final dictated the result he seeks. Specif-
ically, he argues that his conviction became final ‘‘after
Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, [44 L.
Ed. 2d 508] (1975), and Apprendi v. New Jersey, 530
U.S. 466, 120 S. Ct. 2348, [147 L. Ed. 2d 435] (2000),
were well established,’’ and that ‘‘[t]he rationale of these
two cases alone implores the review that reveals the due
process violation.’’ We conclude that the petitioner’s
reliance on these cases is misplaced.
In Mullaney, the United States Supreme Court
declared a Maine statutory scheme unconstitutional.16
The Maine Supreme Judicial Court had held that, in
prosecuting a charge of murder, ‘‘the prosecution could
rest on a presumption of implied malice aforethought
and require the defendant to prove that he had acted
in the heat of passion on sudden provocation in order to
reduce murder to manslaughter.’’ Mullaney v. Wilbur,
supra, 421 U.S. 688. The issue before the court was
‘‘whether the Maine rule requiring the defendant to
prove that he acted in the heat of passion on sudden
provocation accords with due process.’’ Id., 692. The
United States Supreme Court held that this statutory
scheme improperly shifted the burden of persuasion
from the prosecutor to the defendant and was therefore
a violation of the requirement of due process that the
prosecution prove beyond a reasonable doubt every
fact necessary to constitute the crime charged, as stated
in In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25
L. Ed. 2d 368 (1970). Mullaney v. Wilbur, supra, 701.
In Apprendi, the United States Supreme Court
declared a New Jersey statutory scheme unconstitu-
tional.17 The New Jersey statutory scheme ‘‘allows a
jury to convict a defendant of a second-degree offense
based on its finding beyond a reasonable doubt that
he unlawfully possessed a prohibited weapon; after a
subsequent and separate proceeding, it then allows a
judge to impose punishment identical to that New Jer-
sey provides for crimes of the first degree, N.J. Stat.
Ann. § 2C:43-6 (a) (1) (West 1999), based upon the
judge’s finding, by a preponderance of the evidence,
that the defendant’s purpose for unlawfully possessing
the weapon was to intimidate his victim on the basis
of a particular characteristic the victim possessed.’’
(Internal quotation marks omitted.) Apprendi v. New
Jersey, supra, 530 U.S. 491. The issue before the court
was ‘‘whether the [d]ue [p]rocess [c]lause of the [f]our-
teenth [a]mendment requires that a factual determina-
tion authorizing an increase in the maximum prison
sentence for an offense from [ten] to [twenty] years be
made by a jury on the basis of proof beyond a reasonable
doubt.’’ Id., 469. The United States Supreme Court held
that, in accordance with due process, ‘‘any fact that
increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt.’’ Id., 490. The court
reasoned that the New Jersey statutory scheme was
unconstitutional because it ‘‘runs directly into our warn-
ing in Mullaney that [In re] Winship is concerned as
much with the category of substantive offense as with
the degree of criminal culpability assessed.’’ (Internal
quotation marks omitted.) Id., 494–95.
The respondent cites Patterson v. New York, 432 U.S.
197, 97 S. Ct. 2319, 53 L. Ed. 2d 281 (1977) for the
proposition that ‘‘due process does not mandate that
the state prove that an accessory to a crime intend
that every aggravating element be committed by the
principal.’’ In Patterson, the United States Supreme
Court declined to declare a New York statute unconsti-
tutional.18 The New York statute provides that a defen-
dant charged with murder can prove as ‘‘an affirmative
defense . . . that the defendant acted under the influ-
ence of extreme emotional disturbance for which there
was a reasonable explanation—which, if proved by a
preponderance of the evidence, would reduce the crime
to manslaughter . . . .’’ Id., 206. The issue before the
court was ‘‘the constitutionality under the [f]ourteenth
[a]mendment’s [d]ue [p]rocess [c]lause of burdening
the defendant in a New York [s]tate murder trial with
proving the affirmative defense of extreme emotional
disturbance as defined by New York law.’’ Id., 198. The
United States Supreme Court recognized that ‘‘the long-
accepted rule was that it was constitutionally permissi-
ble to provide that various affirmative defenses were
to be proved by the defendant’’; id., 211; and ‘‘decline[d]
to adopt as a constitutional imperative, operative coun-
trywide, that a [s]tate must disprove beyond a reason-
able doubt every fact constituting any and all affirmative
defenses related to the culpability of an accused.’’ Id.,
210. The court reasoned that the New York statute was
constitutional because it ‘‘does not serve to negat[e]
any facts of the crime which the [s]tate is to prove in
order to convict [a defendant] of murder. It constitutes
a separate issue on which the defendant is required to
carry the burden of persuasion.’’ Id., 206–207.
The court in Patterson distinguished its holding from
Mullaney, stating that ‘‘[t]here is some language in Mul-
laney that has been understood as perhaps construing
the [d]ue [p]rocess [c]lause to require the prosecution
to prove beyond a reasonable doubt any fact affecting
‘the degree of criminal culpability.’ . . . It is said that
such a rule would deprive legislatures of any discretion
whatsoever in allocating the burden of proof . . . .
The [c]ourt did not intend Mullaney to have such far-
reaching effect.’’ (Citations omitted.) Id., 214–15 n.15.
The court clarified that, under Mullaney, ‘‘a [s]tate must
prove every ingredient of an offense beyond a reason-
able doubt, and that it may not shift the burden of proof
to the defendant by presuming that ingredient upon
proof of the other elements of the offense. . . . Such
shifting of the burden of persuasion with respect to a
fact which the [s]tate deems so important that it must
be either proved or presumed is impermissible under
the [d]ue [p]rocess [c]lause.’’ Id., 215.
Our review of the United States precedent existing at
the time the petitioner’s conviction became final reveals
that the rule the petitioner seeks would not have been
apparent to all reasonable jurists and, as such, was
not dictated by established precedent. See Dyous v.
Commissioner of Mental Health & Addiction Services,
supra, 324 Conn. 173–74. First, the functioning of the
statutes at issue in Mullaney and Apprendi are distin-
guishable from that of the statutes at issue in the present
case. The statutes at issue in the present case function
to omit proof of any particular mental state of the princi-
pal or accomplice with respect to the use, carrying or
threatened use of a firearm. See State v. Miller, supra,95 Conn. App. 375 (proof of use, carrying or threatened
use of firearm ‘‘is not encompassed within the dual
intent requirement of § 53a-8, but rather is merely an
aggravating circumstance that does not require proof
of any particular mental state’’). Unlike the statutes at
issue in Mullaney and Apprendi, the statutes at issue
here do not provide that ‘‘the prosecution could rest
on a presumption’’; Mullaney v. Wilbur, supra, 421 U.S.
688; or that ‘‘a judge [could] impose [a heightened]
punishment . . . based upon the judge’s [independent
factual] finding . . . .’’ (Citation omitted.) Apprendi v.
New Jersey, supra, 530 U.S. 491. Second, at the time the
petitioner’s conviction became final, the United States
Supreme Court in Patterson had avowed ‘‘the long-
accepted rule . . . that it was constitutionally permis-
sible to provide that various affirmative defenses were
to be proved by the defendant.’’ Patterson v. New York,
supra, 432 U.S. 211. Our legislature did so in enacting
§ 53a-16b, which allows an accomplice to offer proof
of his or her mental state as an affirmative defense
with respect to the aggravating circumstance of using,
carrying or threatening the use of a firearm. Given the
United States Supreme Court’s holding in Patterson
that the state need not ‘‘disprove beyond a reasonable
doubt every fact constituting any and all affirmative
defenses related to the culpability of an accused’’; id.,
210; and for the aforementioned reasons, we cannot
conclude that the rule the petitioner seeks is merely an
application of established constitutional principles.
In light of our thorough review of the relevant federal
and state precedent, we conclude that, in the present
case, no grounds for relief for the petitioner’s due pro-
cess claim were clearly established at the time his con-
viction became final in 2011. See Dyous v. Commis-
sioner of Mental Health & Addiction Services, supra,
324 Conn. 177. Accordingly, we conclude that for the
habeas court to afford the petitioner relief on his due
process claim, it would have had to establish a new
constitutional rule that, to comport with due process,
the state must prove, as an essential element of accesso-
rial liability for manslaughter in the first degree with a
firearm, that the accessory intended the principal’s use
of a firearm.
Having concluded that the habeas court would have
had to depart from prior constitutional jurisprudence
to afford relief to the petitioner, we now address his
claim that the new constitutional rule he seeks falls
within the first Teague exception.19 The petitioner
claims that ‘‘the rule places a category of private con-
duct beyond the power of the state to punish’’ and,
therefore, satisfies the first Teague exception. We dis-
agree.
The first Teague exception ‘‘permits the retroactive
application of a new rule if the rule places a class
of private conduct beyond the power of the [s]tate to
proscribe . . . or addresses a substantive categorical
guarante[e] accorded by the [c]onstitution, such as a
rule prohibiting a certain category of punishment for a
class of defendants because of their status or offense.’’
(Citation omitted; internal quotation marks omitted.)
Saffle v. Parks, 494 U.S. 484, 494, 110 S. Ct. 1257, 108
L. Ed. 2d 415 (1990); Dyous v. Commissioner of Mental
Health & Addiction Services, supra, 324 Conn. 181 n.11.
In Teague v. Lane, supra, 489 U.S. 288, the United
States Supreme Court determined that ‘‘[t]he first
exception . . . is not relevant . . . [where the new
constitutional rule] would not accord constitutional
protection to any primary activity . . . .’’ (Citation
omitted.) Id., 311. Rather, ‘‘rules that regulate only the
manner of determining the defendant’s culpability are
procedural.’’ (Emphasis omitted.) Schriro v. Sum-
merlin, 542 U.S. 348, 353, 124 S. Ct. 2519, 159 L. Ed.
2d 442 (2004); Casiano v. Commissioner of Correction,
supra, 317 Conn. 68. ‘‘[A] rule that alters the manner
of determining culpability merely raise[s] the possibility
that someone convicted with use of the invalidated
procedure might have been acquitted otherwise. . . .
Applying this understanding to new rules governing
sentences and punishments, a new procedural rule cre-
ates the possibility that the defendant would have
received a less severe punishment but does not necessi-
tate such a result. Accordingly, a rule is procedural
when it affects how and under what framework a pun-
ishment may be imposed but leaves intact the state’s
fundamental legal authority to seek the imposition of
the punishment on a defendant currently subject to
the punishment.’’ (Internal quotation marks omitted.)
Casiano v. Commissioner of Correction, supra, 68.
The new constitutional rule that the petitioner seeks
in the present case would require the state, in accor-
dance with due process, to prove as an essential ele-
ment of accessorial liability for manslaughter in the
first degree with a firearm that the accessory intended
the principal’s use of a firearm. The petitioner argues
that ‘‘the proposed rule broadens protections against
punishment by the state’’ by requiring the state to ‘‘prove
to a jury that an accessory intended a principal’s use
of a firearm’’ before the accessory can ‘‘be exposed to
the severely increased penalties to which [the] principal
(who obviously intended the use of a firearm) is
exposed.’’ (Footnote omitted.) In effect, this rule would
alter the manner of determining an accessory’s culpabil-
ity for manslaughter in the first degree with a firearm
by invalidating the provisions set forth in §§ 53a-55a and
53a-16b, which make a defendant’s lack of knowledge
of the firearm an affirmative defense rather than make
his knowledge of the firearm an element of the offense.
Because the petitioner’s proposed rule focuses on the
manner by which an accessory can be deemed culpable
for the use, carrying or threatened use of a firearm by
others in the commission of manslaughter in the first
degree, we conclude that the new constitutional rule the
petitioner seeks is procedural in nature. See Casiano
v. Commissioner of Correction, supra, 317 Conn. 68.
Accordingly, we conclude that the new constitutional
rule of criminal procedure that the petitioner seeks
does not satisfy the first Teague exception. Thus, we
conclude that the habeas court properly denied the
petitioner relief with respect to his due process claim.
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 53a-8 provides in relevant part: ‘‘(a) A person, acting
with the mental state required for commission of an offense, who solicits,
requests, commands, importunes or intentionally aids another person to
engage in conduct which constitutes an offense shall be criminally liable
for such conduct and may be prosecuted and punished as if he were the
principal offender. . . .’’
2
General Statutes § 53a-55a provides in relevant part: ‘‘(a) A person is
guilty of manslaughter in the first degree with a firearm when he commits
manslaughter in the first degree as provided in section 53a-55, and in the
commission of such offense he uses, or is armed with and threatens the
use of or displays or represents by his words or conduct that he possesses
a pistol, revolver, shotgun, machine gun, rifle or other firearm. No person
shall be found guilty of manslaughter in the first degree and manslaughter
in the first degree with a firearm upon the same transaction but such person
may be charged and prosecuted for both such offenses upon the same
information. . . .’’
3
The petitioner appealed from the judgment of the trial court to this court,
and the appeal was transferred to our Supreme Court pursuant to General
Statutes § 51-199 (c) and Practice Book § 65-1. State v. Gonzalez, 300 Conn.
490, 492 n.3, 15 A.3d 1049 (2011).
4
‘‘The victim was the best friend of Michael Borelli, who was convicted
of manslaughter charges after he fatally stabbed Jose Gonzalez, the [petition-
er’s] brother, during a melee at a Waterbury gas station. At one of the court
hearings in that case, the victim chanted, ‘free Mike Borelli, fuck Peach,’ in
reference to the [petitioner], whose nickname is ‘Peachy.’ Thereafter, the
[petitioner] often stated that he blamed the victim for his brother’s death
and wanted revenge. The victim further antagonized the [petitioner] one
night in April, 2006, at [a bar named] Bobby Allen’s [in Waterbury], when
the victim snubbed the [petitioner’s] offer to shake his hand. The [petitioner]
then told the victim that he and his friends were ‘going down.’ ’’ State v.
Gonzalez, 300 Conn. 490, 492 n.4, 15 A.3d 1049 (2011).
5
‘‘Prior to trial in this case, Furs pleaded guilty to murder and was sen-
tenced to forty-seven years imprisonment. See Furs v. Superior Court, 298
Conn. 404, 407, 3 A.3d 912 (2010). As is detailed in the record of the trial
in the present case, as well as our [Supreme Court’s] opinion in Furs,
although the state subpoenaed Furs to testify at the [petitioner’s] trial, he
refused to testify on the ground that to do so would violate his privilege
against self-incrimination given a pending habeas corpus proceeding in his
case, notwithstanding the state’s offer of use immunity. Id., 407–409. The
trial court held Furs in summary criminal contempt and sentenced him to
six months imprisonment consecutive to his murder sentence as a conse-
quence of his failure to testify, concluding that the prosecutor’s offer of use
immunity was sufficient to protect Furs’ fifth amendment rights. Id., 409–10.
[Our Supreme Court] subsequently granted Furs’ writ of error from that
contempt finding, concluding that he was entitled to full transactional immu-
nity under General Statutes § 54-47a. Id., 406, 411–12.’’ State v. Gonzalez,
300 Conn. 493 n.5, 15 A.3d 1049 (2011).
6
‘‘Investigators subsequently determined that this gun had fired the bullet
that was recovered from the victim’s chest and had ejected a shell casing
that was found at the scene.’’ State v. Gonzalez, 300 Conn. 494 n.6, 15 A.3d
1049 (2011).
7
‘‘After explaining the principles of accessorial liability generally in the
context of the murder charge, the trial court instructed the jury in relevant
part that, [u]nder the accessorial theory of liability, as I’ve defined it, in
order for the state to prove the offense of accessory to manslaughter in the
first degree with a firearm, the following elements each must be proved
beyond a reasonable doubt: Number one, that the [petitioner] . . . had the
specific intent to cause serious physical injury to [the victim]. Two: That
the [petitioner] solicits, requests or intentionally aids the principal, the
shooter, who causes the death of such person, [the victim]. And three: In
the commission of such offense the principal, the shooter, uses a firearm.
After explaining each of the three elements individually, including that the
jury had to find that the [petitioner] had the specific intent to cause serious
physical injury to [the victim], and that the state must prove beyond a
reasonable doubt . . . that the [petitioner] did solicit, request or intention-
ally aid another person, the principal, to engage in conduct which constitutes
[the] crime of manslaughter in the first degree, the trial court noted that
the third element is that the state must prove beyond a reasonable doubt
that in the commission of this offense the principal, [Furs], uses a firearm,
defined as any pistol, revolver or other weapon, whether loaded or unloaded,
from which a shot may be discharged. You must find that the firearm was
operable at the time of the offense.
‘‘The [petitioner] subsequently took an exception to this portion of the
charge, seeking reinstruction on this point. The trial court denied that
request, rejecting the [petitioner’s] argument that the accessory must have
the intention that a firearm be used, not only the principal have the intent
to use a firearm and use a firearm, but that the accessory must have the
intention. That court agreed with the state’s position that the firearm element
was an aggravant and that the only mental state that the state was required
to prove under §§ 53a-8 and 53a-55a was intent to cause serious physical
injury.’’ (Footnote omitted; internal quotation marks omitted.) State v. Gon-
zalez, supra, 300 Conn. 496–99.
8
Our Supreme Court concluded that, ‘‘to establish accessorial liability
under § 53a-8 for manslaughter in the first degree with a firearm in violation
of § 53a-55a, the state must prove that the defendant, acting with the intent
to cause serious physical injury to another person, intentionally aided a
principal offender in causing the death of such person or of a third person,
and that the principal, in committing the act, used, carried or threatened
to use a firearm.’’ State v. Gonzalez, supra, 300 Conn. 496.
9
Specifically, the petitioner alleged that the performance of his trial coun-
sel, Attorney Lawrence S. Hopkins, was deficient because ‘‘he failed properly
to preserve the [due process] claim . . . .’’
10
Specifically, the petitioner alleged that the performance of his appellate
counsel, Attorney Raymond L. Durelli, was deficient because ‘‘he failed to
raise the [due process] issue . . . .’’
11
Specifically, the petitioner alleged that the performance of his prior
state habeas counsel, Attorney Joseph A. Jaumann, was deficient because
he failed to raise (1) the due process claim, (2) ‘‘the issue of ineffective
assistance of trial counsel,’’ and (3) ‘‘the issue of ineffective assistance of
appellate counsel . . . .’’
12
The petitioner does not challenge on appeal the habeas court’s determi-
nation with respect to his claims of ineffective assistance of trial, appellate,
and habeas counsel.
13
The petitioner argues that this court ‘‘should not undertake the [respon-
dent’s] proposed Teague analysis now because the [respondent] did not
assert it in the habeas court, the habeas court did not employ it, and the
petitioner can only respond . . . in [his] limited reply brief.’’ We reject the
petitioner’s contention that we should not consider this issue because the
respondent failed to raise it as a defense before the habeas court. See
Casiano v. Commissioner of Correction, 317 Conn. 52, 58 n.5, 115 A.3d
1031 (2015) (exercising discretion to consider issue of retroactivity under
Teague notwithstanding respondent’s failure to raise it as defense before
habeas court), cert. denied sub nom. Semple v. Casiano, 577 U.S. 1202, 136
S. Ct. 1364, 194 L. Ed. 2d 376 (2016).
‘‘[A] reviewing court has discretion to consider an unpreserved claim if
exceptional circumstances exist that would justify review of such an issue
if raised by a party . . . the parties are given an opportunity to be heard
on the issue, and . . . there is no unfair prejudice to the party against
whom the issue is to be decided.’’ (Internal quotation marks omitted.) Id.Exceptional circumstances exist that militate in favor of reviewing unpre-
served claims, even over the objection of a party, ‘‘when review of the claim
would obviate the need to address a constitutional question . . . .’’ (Cita-
tions omitted; footnote omitted.) Blumberg Associates Worldwide, Inc. v.
Brown & Brown of Connecticut, Inc., 311 Conn. 123, 159, 84 A.3d 840 (2014);
see also Neese v. Southern Railway Co., 350 U.S. 77, 78, 76 S. Ct. 131, 100
L. Ed. 60 (1955) (‘‘we follow the traditional practice of this [c]ourt of refusing
to decide constitutional questions when the record discloses other grounds
of decision, whether or not they have been properly raised . . . by the
parties’’). We are also mindful that ‘‘[t]his court has a basic judicial duty to
avoid deciding a constitutional issue if a nonconstitutional ground exists
that will dispose of the case.’’ (Internal quotation marks omitted.) State v.
Washington, 39 Conn. App. 175, 176–77 n.3, 664 A.2d 1153 (1995). Further-
more, the petitioner had the opportunity to address the issue of retroactivity
under Teague in his reply brief and at oral argument before this court, and
did so. See Casiano v. Commissioner of Correction, supra, 317 Conn. 58 n.5.
14
We note that, in the petitioner’s case, in which the state charged him
with manslaughter in the first degree with a firearm as an accessory in
violation of §§ 53a-8 and 53a-55a but not with the lesser included offense
of manslaughter in the first degree as an accessory in violation of General
Statutes §§ 53a-8 and 53a-55 (a) (1), his proof of the affirmative defense set
forth in § 53a-16b would serve to relieve him of any criminal culpability
associated with the charge of manslaughter in the first degree with a firearm
as an accessory.
15
In his principal appellate brief, the petitioner acknowledges State v.
Miller, supra, 95 Conn. App. 362, as binding precedent and argues that Miller
‘‘should be overruled.’’
16
‘‘The Maine murder statute, Me. Rev. Stat. Ann., [t]it. 17, § 2651 (1964),
provides: ‘Whoever unlawfully kills a human being with malice aforethought,
either express or implied, is guilty of murder and shall be punished by
imprisonment for life.’
‘‘The manslaughter statute, Me. Rev. Stat. Ann., [t]it. 17, § 2551 (1964), in
relevant part provides: ‘Whoever unlawfully kills a human being in the
heat of passion, on sudden provocation, without express or implied malice
aforethought . . . shall be punished by a fine of not more than $1,000 or
by imprisonment for not more than 20 years . . . .’ ’’ Mullaney v. Wilbur,
supra, 421 U.S. 686 n.3.
17
The United States Supreme Court articulated the New Jersey statutory
scheme as follows: ‘‘A New Jersey statute classifies the possession of a
firearm for an unlawful purpose as a ‘second-degree’ offense. N.J. Stat. Ann.
§ 2C:39-4 (a) (West 1995). Such an offense is punishable by imprisonment
for ‘between five years and 10 years.’ § 2C:43-6 (a) (2). A separate statute,
described by [New Jersey’s] Supreme Court as a ‘hate crime’ law, provides
for an ‘extended term’ of imprisonment if the trial judge finds, by a preponder-
ance of the evidence, that ‘[t]he defendant in committing the crime acted
with a purpose to intimidate an individual or group of individuals because
of race, color, gender, handicap, religion, sexual orientation or ethnicity.’
N.J. Stat. Ann. § 2C:44-3 (e) (West Supp. 1999–2000). The extended term
authorized by the hate crime law for second-degree offenses is imprisonment
for ‘between 10 and 20 years.’ § 2C:43-7 (a) (3).’’ Apprendi v. New Jersey,
supra, 530 U.S. 468–69.
18
Section 125.25 of New York’s Penal Law (McKinney 1975) provides in
relevant part: ‘‘A person is guilty of murder in the second degree when:
‘‘1. With intent to cause the death of another person, he causes the death
of such person or of a third person; except that in any prosecution under
this subdivision, it is an affirmative defense that:
‘‘(a) The defendant acted under the influence of extreme emotional distur-
bance for which there was a reasonable explanation or excuse, the reason-
ableness of which is to be determined from the viewpoint of a person in
the defendant’s situation under the circumstances as the defendant believed
them to be. Nothing contained in this paragraph shall constitute a defense
to a prosecution for, or preclude a conviction of, manslaughter in the first
degree or any other crime.’’ Patterson v. New York, supra, 432 U.S. 198–99 n.2.
19
The petitioner does not claim that this rule would fall within the second
exception in Teague, which is for watershed constitutional rules of criminal
procedure. See Dyous v. Commissioner of Mental Health & Addiction
Services, supra, 324 Conn. 181. As such, our analysis is limited to the first
Teague exception.