Thiersaint v. Commissioner of Correction

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THIERSAINT v. COMMISSIONER OF CORRECTION—SECOND DISSENT
EVELEIGH, J., with whom McDONALD, J., joins, dis-
senting. I respectfully dissent. I disagree with the major-
ity’s conclusion that Padilla v. Kentucky, 559 U.S. 356,
130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), does not
apply retroactively to the guilty plea of the petitioner,
Emmanuel Thiersaint. Instead, I would apply Padilla
to the petitioner’s claim and would conclude that the
advice given by the petitioner’s counsel constituted inef-
fective assistance of counsel under Strickland v. Wash-
ington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984). Accordingly, I respectfully dissent.
As the majority has explained, the resolution of the
respondent’s first claim on appeal requires us to deter-
mine whether the rule announced in Padilla applies
retroactively to the petitioner’s guilty plea or whether
it was a new rule. I agree with the factual and procedural
history set forth in the majority opinion. I also agree
with the majority regarding the standard of review gov-
erning the petitioner’s claim. ‘‘Although the underlying
historical facts found by the habeas court may not be
disturbed unless they were clearly erroneous, whether
those facts constituted a violation of the petitioner’s
rights under the sixth amendment is a mixed determina-
tion of law and fact that requires the application of
legal principles to the historical facts of this case. . . .
As such, that question requires plenary review by this
court unfettered by the clearly erroneous standard.
. . .
‘‘A criminal defendant is constitutionally entitled to
adequate and effective assistance of counsel at all criti-
cal stages of criminal proceedings. . . . This right
arises under the sixth and fourteenth amendments to
the United States constitution and article first, § 8, of
the Connecticut constitution. . . . It is axiomatic that
the right to counsel is the right to the effective assis-
tance of counsel.’’ (Citations omitted; internal quotation
marks omitted.) Gonzalez v. Commissioner of Correc-
tion, 308 Conn. 463, 469–70, 68 A.3d 624, cert. denied
sub nom. Dzurenda v. Gonzalez, U.S. , 134 S.
Ct. 639, 187 L. Ed. 2d 445 (2013).
In Padilla v. Kentucky, supra, 559 U.S. 366, the United
States Supreme Court concluded that the Strickland
standard for effective assistance of counsel applied to
a petitioner’s claim that his counsel had improperly
failed to advise him of the immigration consequences
of a guilty plea. In doing so, the United States Supreme
Court recognized that ‘‘[d]eportation as a consequence
of a criminal conviction is, because of its close connec-
tion to the criminal process, uniquely difficult to classify
as either a direct or a collateral consequence. The collat-
eral versus direct distinction is thus ill suited to evaluat-
ing a Strickland claim concerning the specific risk of
deportation. We conclude that advice regarding depor-
tation is not categorically removed from the ambit of
the [s]ixth [a]mendment right to counsel. Strickland
applies to [the petitioner’s] claim.’’ Id.
The United States Supreme Court further concluded
that the petitioner had satisfied the first prong of Strick-
land because ‘‘the terms of the relevant immigration
statute are succinct, clear, and explicit in defining the
removal consequence for [the petitioner’s] conviction.
. . . [The petitioner’s] counsel could have easily deter-
mined that his plea would make him eligible for deporta-
tion simply from reading the text of the statute, which
addresses not some broad classification of crimes but
specifically commands removal for all controlled sub-
stances convictions except for the most trivial of mari-
juana possession offenses. Instead, [the petitioner’s]
counsel provided him false assurance that his convic-
tion would not result in his removal from this country.
This is not a hard case in which to find deficiency: The
consequences of [the petitioner’s] plea could easily be
determined from reading the removal statute, his depor-
tation was presumptively mandatory, and his counsel’s
advice was incorrect.’’ (Citation omitted.) Id., 368–69.
The United States Supreme Court further recognized
the following: ‘‘Immigration law can be complex, and
it is a legal specialty of its own. Some members of the
bar who represent clients facing criminal charges, in
either state or federal court or both, may not be well
versed in it. There will, therefore, undoubtedly be
numerous situations in which the deportation conse-
quences of a particular plea are unclear or uncertain.
The duty of the private practitioner in such cases is
more limited. When the law is not succinct and straight-
forward . . . a criminal defense attorney need do no
more than advise a noncitizen client that pending crimi-
nal charges may carry a risk of adverse immigration
consequences. But when the deportation consequence
is truly clear, as it was in this case, the duty to give
correct advice is equally clear.’’ (Footnote omitted.)
Id., 369.
In Chaidez v. United States, U.S. , 133 S. Ct.
1103, 1105, 185 L. Ed. 2d 149 (2013), the United States
Supreme Court considered whether the ruling in Padilla
‘‘that the sixth amendment requires an attorney for a
criminal defendant to provide advice about the risk of
deportation arising from a guilty plea’’ applies ‘‘retroac-
tively, so that a person whose conviction became final
before we decided Padilla can benefit from it.’’ The
United States Supreme Court considered the claim in
Chaidez under the principles set out in Teague v. Lane,
489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989).
In Teague, the United States Supreme Court held
that a criminal defendant cannot collaterally attack a
conviction on the basis of a new rule of criminal proce-
dure identified after the conviction became final. Id.,
299. Thus, where a ‘‘ ‘new rule’ ’’ is announced, ‘‘a per-
son whose conviction is already final may not benefit
from the decision in a habeas or similar proceeding.’’
Chaidez v. United States, supra, 133 S. Ct. 1107. A ‘‘case
announces a new rule when it breaks new ground or
imposes a new obligation’’ on the government; that is,
the result of the case ‘‘was not dictated by precedent
existing at the time the defendant’s conviction became
final’’; (emphasis omitted; internal quotation marks
omitted) Teague v. Lane, supra, 489 U.S. 333; or was not
‘‘apparent to all reasonable jurists.’’ (Internal quotation
marks omitted.) Chaidez v. United States, supra, 1107.
The court in Teague did, however, recognize two
important exceptions to the nonretroactivity rule.
‘‘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 procedures that . . . are implicit in the concept
of ordered liberty.’’ (Citation omitted; internal quotation
marks omitted.) Teague v. Lane, supra, 307.
In Chaidez, the United States Supreme Court rea-
soned as follows: ‘‘Before Padilla, we had declined
to decide whether the [s]ixth [a]mendment had any
relevance to a lawyer’s advice about matters not part
of a criminal proceeding. Perhaps some advice of that
kind would have to meet Strickland’s reasonableness
standard—but then again, perhaps not: No precedent
of our own ‘dictated’ the answer. . . . All we say here
is that Padilla’s holding that the failure to advise about
a [noncriminal] consequence could violate the [s]ixth
[a]mendment would not have been—in fact, was not—
‘apparent to all reasonable jurists’ prior to our decision.
. . . Padilla thus announced a ‘new rule.’ ’’ (Citations
omitted; emphasis omitted; footnote omitted.) Chaidez
v. United States, supra, 133 S. Ct. 1110–11. The United
States Supreme Court, accordingly, refused to apply
the Padilla rule retroactively to the petitioner’s federal
habeas claim for ineffective assistance of counsel
related to her counsel’s failure to inform her of the
immigration consequences of her guilty plea. Id.
Although I agree with the majority that Chaidez con-
trols the question as it relates to federal habeas claims,
I disagree with the majority’s failure to fully recognize
the impact of Danforth v. Minnesota, 552 U.S. 264, 128
S. Ct. 1029, 169 L. Ed. 2d 859 (2008), and its progeny
on state habeas claims. In Danforth, the United States
Supreme Court recognized that ‘‘the Teague rule of
nonretroactivity was fashioned to achieve the goals of
federal habeas while minimizing federal intrusion into
state criminal proceedings. It was intended to limit the
authority of federal courts to overturn state convic-
tions—not to limit a state court’s authority to grant
relief for violations of new rules of constitutional law
when reviewing its own . . . convictions.’’ Id., 280–81.
The court further stated that because ‘‘[f]ederalism and
comity considerations are unique to federal habeas
review of state convictions . . . comity militate[s] in
favor of allowing state courts to grant habeas relief to a
broader class of individuals than is required by Teague.’’
(Citations omitted; emphasis omitted.) Id., 279–80.
Therefore, the United States Supreme Court made clear
that the decision of whether to apply a new rule in a
state habeas proceeding is left entirely to the state.
Indeed, in Luurtsema v. Commissioner of Correc-
tion, 299 Conn. 740, 753 n.14, 12 A.3d 817 (2011), this
court recognized that, ‘‘[u]nder Teague, new rules of
criminal procedure do not apply retroactively to already
final judgments in federal habeas proceedings unless
they fall under one of several specified exceptions.
Teague v. Lane, supra, [489 U.S. 310.] Although this
court has in the past applied the Teague framework to
state habeas proceedings as well; see, e.g., Johnson v.
Warden, 218 Conn. 791, 797, 591 A.2d 407 (1991); the
United States Supreme Court recently held in Danforth
v. Minnesota, [supra, 552 U.S. 282], that the restrictions
Teague imposes on the fully retroactive application of
new procedural rules are not binding on the states.’’
(Emphasis added.)
The majority states that ‘‘[c]ontrary to the petitioner’s
suggestion, our reference in Luurtsema to Danforth
did not mean that this court was not bound by Teague,
but, rather, was intended to describe the reasoning in
Danforth.’’ I disagree. In my view, in Luurtsema, this
court recognized that Danforth changed the landscape
of this area of state law and we were no longer required
to follow Teague for state habeas claims that involved
application of new procedural rules. Although Luurt-
sema did not involve the retroactive application of a
procedural rule, it clearly indicated an intention by this
court to reconsider whether Teague would apply to
Connecticut habeas proceedings involving retroactive
application of procedural rules when a case presented
that issue.
I also disagree with the majority’s statement that
‘‘[f]urthermore, even the petitioner has recognized that,
on the few occasions when Connecticut courts have
considered Teague, they have applied its principles
without hesitation.’’ First, two of the cases cited by the
majority, Duperry v. Solnit, 261 Conn. 309, 312, 803
A.2d 287 (2002), and Johnson v. Warden, supra, 218
Conn. 796–98, were decided long before Danforth made
clear that the decision of whether to apply a new rule
in a state habeas proceeding is left entirely to the state.
Accordingly, these cases are not relevant to the inquiry
in the present case, namely, whether, in light of Dan-
forth, this state will choose to apply the new procedural
rule established in Padilla retroactively in state
habeas proceedings.
The only other case from this court cited by the
majority for the proposition that ‘‘when Connecticut
courts have considered Teague, they have applied its
principles without hesitation’’ is State v. Payne, 303
Conn. 538, 34 A.3d 370 (2012). First, Payne was not a
habeas proceeding. Id., 541. Instead, in Payne, this court
considered whether the trial court properly joined the
defendant’s felony murder and jury tampering cases for
trial. Id., 541–42. In Payne, this court adopted a new
burden of proof concerning joinder at trial and applied
it in the defendant’s direct appeal in that case. Id., 549–
50. In a footnote, this court stated as follows: ‘‘Because
this rule of law pertains to the party bearing the burden
of proof, it is procedural, and not substantive, and there-
fore will not apply retroactively in habeas proceedings.
See Luurtsema v. Commissioner of Correction, [supra,
299 Conn. 753–54]; see also Bousley v. United States,
523 U.S. 614, 620, 118 S. Ct. 1604, 140 L. Ed. 2d 828
(1998) (‘unless a new rule of criminal procedure is of
such a nature that without [it] the likelihood of an
accurate conviction is seriously diminished . . . there
is no reason to apply the rule retroactively on habeas
review’ . . .).’’ State v. Payne, supra, 550 n.10. As
explained previously herein, in Luurtsema, this court
explicitly recognized that the restrictions Teague
imposes on the fully retroactive application of new pro-
cedural rules are not binding on the states and left that
question open. In my view, the citation to Luurtsema
in Payne is misplaced and cannot be considered in this
court’s resolution of how to apply the restrictions of
Teague in state habeas proceedings.1
Having concluded that we are not bound by a strict
adherence to Teague, I would undertake a close exami-
nation of the United States Supreme Court’s opinion in
Teague to determine how to apply its principles in this
state habeas proceeding. In Teague, the petitioner in a
federal habeas proceeding claimed that the United
States Supreme Court should adopt a new rule applying
the sixth amendment’s fair cross section requirement
to the petit jury. Teague v. Lane, supra, 489 U.S. 299.
The United States Supreme Court refused to address the
petitioner’s claim because it concluded, as a threshold
matter, that ‘‘the rule urged by [the] petitioner should
not be applied retroactively to cases on collateral
review . . . .’’ Id.
In deciding the threshold issue of retroactive applica-
tion, the United States Supreme Court acknowledged
that ‘‘[t]his retroactivity determination would normally
entail application of the [standard set forth in Linkletter
v. Walker, 381 U.S. 618, 85 S. Ct. 1731, 14 L. Ed. 2d 601
(1965)], but we believe that our approach to retroactiv-
ity for cases on collateral review requires modification.’’
Teague v. Lane, supra, 489 U.S. 301. The United States
Supreme Court then explained that, ‘‘[i]t is admittedly
often difficult to determine when a case announces a
new rule, and we do not attempt to define the spectrum
of what may or may not constitute a new rule for retro-
activity purposes. In general, however, a case
announces a new rule when it breaks new ground or
imposes a new obligation on the [s]tates or the [f]ederal
[g]overnment.’’ Id.
‘‘The Linkletter retroactivity standard has not led to
consistent results. Instead, it has been used to limit
application of certain new rules to cases on direct
review, other new rules only to the defendants in the
cases announcing such rules, and still other new rules
to cases in which trials have not yet commenced.’’ Id.,
302. The court in Teague then traced the recent history
of the Linkletter rule and the rejection of that rule
as follows: ‘‘Dissatisfied with the Linkletter standard,
Justice Harlan advocated a different approach to retro-
activity. He argued that new rules should always be
applied retroactively to cases on direct review, but that
generally they should not be applied retroactively to
criminal cases on collateral review. See Mackey v.
United States, [401 U.S. 667, 675, 91 S. Ct. 1160, 28 L.
Ed. 2d 404] (1971) (opinion concurring in judgments in
part and dissenting in part); Desist [v. United States,
394 U.S. 244, 256, 89 S. Ct. 1030, 22 L. Ed. 2d 248 (1969)
(Harlan, J., dissenting)].
‘‘In Griffith v. Kentucky, [479 U.S. 314, 107 S. Ct. 708,
93 L. Ed. 2d 649] (1987), we rejected as unprincipled and
inequitable the Linkletter standard for cases pending on
direct review at the time a new rule is announced,
and adopted the first part of the retroactivity approach
advocated by Justice Harlan. We agreed with Justice
Harlan that ‘failure to apply a newly declared constitu-
tional rule to criminal cases pending on direct review
violates basic norms of constitutional adjudication.’
[Id., 322]. . . . Although new rules that constituted
clear breaks with the past generally were not given
retroactive effect under the Linkletter standard, we
held that ‘a new rule for the conduct of criminal prose-
cutions is to be applied retroactively to all cases, state
or federal, pending on direct review or not yet final,
with no exception for cases in which the new rule
constitutes a ‘‘clear break’’ with the past.’ ’’ (Citations
omitted.) Teague v. Lane, supra, 489 U.S. 303–305.
In Teague, the United States Supreme Court also rec-
ognized that although Justice Harlan believed that new
rules generally should not be applied retroactively to
cases on collateral review, he ‘‘identified only two
exceptions to his general rule of nonretroactivity for
cases on collateral review. First, a new rule should be
applied retroactively if it places certain kinds of pri-
mary, 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 procedures that . . .
are implicit in the concept of ordered liberty.’’ (Citation
omitted; internal quotation marks omitted.) Id., 307.
The court in Teague concluded that ‘‘we now adopt
Justice Harlan’s view of retroactivity for cases on collat-
eral review. Unless they fall within an exception to
the general rule, new constitutional rules of criminal
procedure will not be applicable to those cases which
have become final before the new rules are announced.’’
Id., 310.
The court in Teague then explained that they applied
the second exception suggested by Justice Harlan with
a modification. Specifically, the court in Teague recog-
nized that the second exception was to allow the retro-
active application of new rules where the ‘‘procedure
at issue must implicate the fundamental fairness of the
trial’’ and ‘‘be so central to an accurate determination
of innocence or guilt . . . .’’ Id., 312–13. The court in
Teague then concluded that ‘‘[b]ecause the absence of
a fair cross section on the jury venire does not under-
mine the fundamental fairness that must underlie a
conviction or seriously diminish the likelihood of
obtaining an accurate conviction, we conclude that a
rule requiring that petit juries be composed of a fair
cross section of the community would not be a ‘bedrock
procedural element’ that would be retroactively applied
under the second exception we have articulated.’’ Id.,
315.2
As I have explained previously in this opinion, this
court is not bound to apply the framework of Teague
to state habeas proceedings. Although I agree with the
majority that many states have applied Teague in decid-
ing state habeas claims, I find it instructive that the
majority of those decisions were prior to Danforth,
which made clear that states were not required to follow
Teague for purposes of their state habeas proceedings.
See footnote 11 of the majority opinion. Indeed, only
twelve of the decisions cited by the majority occurred
after Danforth.3
Instead, I find persuasive the decisions of the Nevada
Supreme Court in Colwell v. State, 118 Nev. 807, 59 P.3d
463 (2002) (per curiam), cert. denied, 540 U.S. 981, 124
S. Ct. 462, 157 L. Ed. 2d 370 (2003), and the Idaho
Supreme Court in Rhoades v. State, 149 Idaho 130, 233
P.3d 61 (2010), cert. denied, U.S. , 131 S. Ct.
1571, 179 L. Ed. 2d 477 (2011). Both Nevada and Idaho
have adopted modified versions of the Teague test. Col-
well v. State, supra, 819; Rhoades v. State, supra, 136.
In Colwell v. State, supra, 118 Nev. 818–19, the Nevada
Supreme Court stated as follows: ‘‘Though we consider
the approach to retroactivity set forth in Teague to be
sound in principle, the [United States] Supreme Court
has applied it so strictly in practice that decisions defin-
ing a constitutional safeguard rarely merit application
on collateral review. . . . We appreciate that strictly
constraining retroactivity serves the [United States]
Supreme Court’s purpose of circumscribing federal
habeas review of state court decisions, but as a state
court we choose not to bind quite so severely our own
discretion in deciding retroactivity. We therefore
choose to adopt with some qualification the approach
set forth in Teague. We adopt the general framework
of Teague, but reserve our prerogative to define and
determine within this framework whether a rule is new
and whether it falls within the two exceptions to nonret-
roactivity (as long as we give new federal constitutional
rules at least as much retroactive effect as Teague
does).’’ (Footnotes omitted.)
The Nevada Supreme Court further concluded that
‘‘consistent with the Teague framework, we will not
apply a new constitutional rule of criminal procedure
to finalized cases unless it falls within either of two
exceptions. There is no bright-line rule for determining
whether a rule is new, but there are basic guidelines
to follow. . . . When a rule is new, it will still apply
retroactively in two instances: (1) if the rule establishes
that it is unconstitutional to proscribe certain conduct
as criminal or to impose a type of punishment on certain
defendants because of their status or offense; or (2) if
it establishes a procedure without which the likelihood
of an accurate conviction is seriously diminished. These
are basically the exceptions defined by the [United
States] Supreme Court. But we do not limit the first
exception to ‘primary, private individual’ conduct,
allowing the possibility that other conduct may be con-
stitutionally protected from criminalization and warrant
retroactive relief. And with the second exception, we
do not distinguish a separate requirement of ‘bedrock’
or ‘watershed’ significance: if accuracy is seriously
diminished without the rule, the rule is significant
enough to warrant retroactive application.’’ (Footnotes
omitted.) Id., 819–20. In adopting the modified
approach, the Nevada Supreme Court reasoned that
‘‘this adaptation of the approach taken in Teague and
its progeny provides us with a fair and straightforward
framework for determining retroactivity.’’ Id., 820.
Similarly, the Idaho Supreme Court adopted the
Teague approach when determining whether decisions
of the United States Supreme Court and the appellate
courts of Idaho should be given retroactive effect.
Rhoades v. State, supra, 149 Idaho 136. Nevertheless,
the Idaho Supreme Court reasoned that ‘‘[w]hile the
[United States] Supreme Court has strictly interpreted
Teague to avoid excessive interference by federal
habeas courts in state criminal convictions that have
become final, this [c]ourt does not have a similar con-
cern for comity when interpreting whether a decision
pronounces a new rule of law for purposes of applying
Teague. As the holding in Danforth . . . makes clear,
when deciding whether to give retroactive effect to a
decision of the [United States] Supreme Court, this
[c]ourt is not required to blindly follow that court’s
view of what constitutes a new rule or whether a new
rule is a watershed rule.’’ Id., 139. Instead, the Idaho
Supreme Court concluded that ‘‘in the future, the deci-
sions of the courts of this state whether to give retroac-
tive effect to a rule of law should reflect independent
judgment, based upon the concerns of this [c]ourt and
the ‘uniqueness of our state, our [c]onstitution, and our
long-standing jurisprudence.’ State v. Donato, 135 Idaho
469, 472, [20 P.3d 5] (2001) (noting that when this [c]ourt
has found that the Idaho [c]onstitution provides greater
protection than the [United States constitution], it has
done so, ‘on the uniqueness of our state, our [c]onstitu-
tion, and our long-standing jurisprudence’).’’ Rhoades
v. State, supra, 139.
Like the Nevada Supreme Court and the Idaho
Supreme Court, I would conclude that this court should
adopt the principles of Teague, but in deciding whether
to give retroactive effect to a new rule, this court should
exercise independent judgment on the basis of the
unique requirements of our state constitution, judicial
precedents and statutory framework. Furthermore, I
would conclude that in implementing the second excep-
tion in Teague, ‘‘if accuracy is seriously diminished
without the rule, the rule is significant enough to war-
rant retroactive application.’’ Colwell v. State, supra,
118 Nev. 820. Indeed, if the rule is so central to an
accurate plea or conviction and the fundamental fair-
ness of a trial or plea is seriously diminished without
the rule, the rule is significant enough to warrant retro-
active application. See Teague v. Lane, supra, 489 U.S.
312–13 (‘‘procedure at issue must implicate the funda-
mental fairness of the trial’’ and ‘‘be so central to an
accurate determination of innocence or guilt’’).4
Having concluded that we should adopt a modified
version of Teague on the basis of the uniqueness of our
state constitution, precedents and statutory framework,
I turn to whether we should give retroactive effect to
the rule announced in Padilla that the sixth amendment
right to counsel requires an attorney for a criminal
defendant to provide advice about the risk of deporta-
tion arising from a guilty plea. I answer that question
in the affirmative.
Before addressing whether we should give retroac-
tive effect to Padilla in the present case, it is important
to note that the habeas court made a factual finding
that ‘‘[h]ad the petitioner known that he faced certain
and permanent removal from the United States when
he pleaded guilty to the charge of possession with intent
to sell, he would not have pleaded guilty, but would
have insisted on going to trial. The petitioner would
prefer a long jail sentence in the United States rather
than suffer permanent banishment from the United
States to Haiti.’’ On the basis of that finding, I would
conclude that the failure of the petitioner’s attorney to
inform the petitioner of the immigration consequences
of his plea undermines the accuracy of his guilty plea,
and leads me to the conclusion that the fundamental
fairness of the plea process was seriously flawed.
In making this determination, I first look to the unique
requirements and history of the right to counsel under
our state constitution. ‘‘This state has had a long history
of recognizing the significance of the right to counsel,
even before that right attained federal constitutional
importance. Until 1836, the common law of England
denied the services of counsel to a person charged with
a felony for anything but advisory guidance on questions
of law. Powell v. Alabama, 287 U.S. 45, 60, 53 S. Ct. 55,
77 L. Ed. 158 (1932). This rule was defended largely on
the theory that the court itself was counsel for the
accused. Id., 61.
‘‘Although in 1708 Connecticut enacted a law prohib-
iting pleading for hire without the express consent of
the court; State v. Gethers, 197 Conn. 369, 389–90 n.19,
497 A.2d 408 (1985); the custom of assigning counsel
in all criminal cases quickly became the norm. State v.
Davis, 199 Conn. 88, 99, 506 A.2d 86 (1986). By the end
of the eighteenth century, the Connecticut legislature
had abolished all those odious laws arising from the
English common law tradition and had assured that any
person charged with a crime was entitled to . . . coun-
sel . . . .’’ (Internal quotation marks omitted.) State v.
Stoddard, 206 Conn. 157, 164–65, 537 A.2d 446 (1988).
Writing for this court in State v. Stoddard, supra, 206
Conn. 165, Chief Justice Peters went on to explain that
‘‘[w]hen the customary right to counsel was formally
incorporated into the Connecticut constitution in 1818,
the advice and services of counsel were regarded as
crucial to a criminal defendant at any time, especially
given the inability of a defendant to testify in Connecti-
cut in 1818. . . . More contemporary developments
suggest that this state’s commitment to securing the
right to counsel has not diminished since 1818. Not
only was Connecticut the first state to adopt the public
defender system . . . but the right to counsel was
secured to criminal defendants in this state long before
the mandate of Gideon v. Wainwright, 372 U.S. 335,
83 S. Ct. 792, 9 L. Ed. 2d 799 [(1962) (holding that the
fourteenth amendment incorporated the sixth amend-
ment right to counsel)] . . . . The United States
Supreme Court has turned to the historical experience
of Connecticut in expanding the right to counsel under
the federal constitution. Faretta v. California, 422 U.S.
806, 827, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975); Powell
v. Alabama, supra, [287 U.S.] 62–63.’’ (Citations omitted;
internal quotation marks omitted.)
‘‘This rich history demonstrates that ‘the fundamental
right to counsel is elevated to the highest order.’ State
v. Hamilton, 228 Conn. 234, 260, 636 A.2d 760 (1994)
(Berdon, J., dissenting). Indeed, even before the initia-
tion of the adversarial judicial proceeding—that is,
before arraignment—we have held that under our state
constitution, a suspect’s ‘waiver of presence of counsel
can, under certain circumstances, be shown invalid if
the police fail to inform a suspect of [his counsel’s
efforts to communicate with him].’ State v. Stoddard,
supra, 206 Conn. 173. This holding was based on the
duty of the police to ‘act reasonably, diligently and
promptly to provide counsel [for the suspect] with accu-
rate information and to apprise the suspect of the efforts
by counsel.’ Id., 167. If, under the state constitution,
prearraignment waiver of counsel is invalidated when
an accused is not informed of his counsel’s request to
speak to him, it logically follows that there can be no
effective postarraignment waiver without the presence
of appointed counsel.’’ State v. Piorkowski, 243 Conn.
205, 229, 700 A.2d 1146 (1997) (Berdon, J., dissenting).
As the foregoing demonstrates, the right to counsel
under our state constitution has a rich history predating
that of the right to counsel under the federal constitu-
tion and we have repeatedly held that the state constitu-
tion affords broader protection of the right to counsel
than the federal constitution. I would conclude that the
unique and broad protections of the right to counsel
under our state constitution weigh in favor of giving
retroactive effect to Padilla in a state habeas pro-
ceeding.
I next turn to the unique statutory framework of the
state. The habeas court found that, at the time of the
petitioner’s plea in 2007, there existed an ‘‘established
professional norm in this state, that the defendant’s
counsel discuss the immigration consequences of his
plea with the defendant.’’ In support of its conclusion
the habeas court credited the expert testimony offered
by the petitioner that the petitioner’s counsel at the
time of the plea ‘‘also had a duty to inform a noncitizen
defendant that if he pleaded guilty to [an aggravated
felony] after the completion of his Connecticut sen-
tence, he would not be released but would be turned
over to federal immigration authorities and mandatorily
detained pending deportation proceedings, that there
was no legitimate defense to removal, that he would
ultimately be removed from the United States and
returned to his country of origin, and that he would be
permanently barred from returning . . . .’’ (Footnote
omitted.) Thus, the habeas court found that counsel’s
obligation in 2007 was not only to mention immigration
consequences, but also to provide accurate advice
about them. The habeas court further found that the
‘‘existence and application’’ of General Statutes § 54-1j,
provided ‘‘further evidence’’ of this established profes-
sional norm.
In 1982, the legislature enacted § 54-1j; see Public
Acts 1982, No. 82-177; which prohibits judges of the
Superior Court from accepting a guilty plea from a
defendant unless the court advised the defendant that
if he or she is a noncitizen, a conviction could result
in deportation. I note that it was not until December
1, 2013, that the Federal Rules of Criminal Procedure
required federal courts before accepting a plea to
‘‘inform the defendant of, and determine that the defen-
dant understands . . . that, if convicted, a defendant
who is not a United States citizen may be removed
from the United States, denied citizenship, and denied
admission to the United States in the future.’’ Fed. R.
Crim. P. 11 (b) (1). The Advisory Committee on Federal
Rules of Criminal Procedure that recommended the
change to the federal rules expressly relied on Padilla’s
recognition that an informed plea requires the defen-
dant to be aware of immigration consequences that may
result from the plea. Advisory Committee on Federal
Rules of Criminal Procedure, ‘‘Report of the Advisory
Committee on Criminal Rules,’’ (2010), p. 2, available
at http://www.uscourts.gov/uscourts/RulesAnd
Policies/rules/Reports/CR12-2010.pdf (last visited
March 26, 2015).
In 2003, prior to the petitioner’s plea in the present
action, the legislature amended § 54-1j to, inter alia, add
the following requirement: ‘‘If the defendant has not
discussed these possible [immigration] consequences
[of the conviction] with the defendant’s attorney, the
court shall permit the defendant to do so prior to
accepting the defendant’s plea.’’ Public Acts 2003, No.
03-81, § 1. The addition of this requirement prohibited
courts from accepting a plea without first ensuring that
a defendant had an opportunity to speak with his crimi-
nal counsel regarding the immigration consequences
of accepting the plea. This amendment to § 54-1j is
significant because it demonstrates Connecticut’s early
recognition that the broad expansion of the categories
of offenses triggering automatic deportation, and the
elimination of avenues for relief under federal immigra-
tion law trigger greater responsibility for criminal
defense attorneys to ensure their clients know, when
accepting a plea deal, that they may be accepting depor-
tation. The requirement that every defendant have an
opportunity to speak with his or her defense counsel
regarding the immigration consequences of a plea
assumes that the criminal attorney will be equipped to
provide meaningful and accurate advice as to what
those immigration consequences are likely to be. The
statute’s requirement that the judge provide the defen-
dant with an opportunity to discuss the immigration
consequences of the plea with ‘‘the defendant’s attor-
ney’’ confirms that the opportunity for discussion the
provision mandates is between the defendant and his
criminal defense counsel, guaranteed to him by Gideon
v. Wainwright, supra, 372 U.S. 335, thereby ensuring
that indigent noncitizen defendants will have an oppor-
tunity to consult with an attorney regarding the immi-
gration consequences of a plea before accepting one.
The added statutory provision would make little sense
if there was not already a prevailing professional norm
among attorneys in Connecticut that criminal defense
counsel must be sufficiently versed in the immigration
consequences of criminal convictions so as to provide
meaningful advice to their clients regarding the conse-
quences of a plea. The prevailing norm, namely that
criminal attorneys should accurately discuss immigra-
tion consequences with their clients, made the 2003
amendment to § 54-1j possible.
The 2003 amendment, in turn, helped solidify the
standards of the Connecticut defense bar that effective
representation entails advising clients of the immigra-
tion consequences of their pleas. As recognized in Padi-
lla ‘‘[i]mmigration law can be complex, and it is a legal
specialty of its own.’’ Padilla v. Kentucky, supra, 559
U.S. 369. In Padilla the United States Supreme Court
also noted that the ‘‘weight of prevailing professional
norms supports the view that counsel must advise her
client regarding the risk of deportation.’’ (Internal quo-
tation marks omitted.) Id., 367. The court demonstrated
these professional norms through a panoply of training
materials, the earliest of which was published in 1993.
Id. As the trial court in the present case found, by 2005,
a manual entitled ‘‘A Brief Guide to Representing Non-
citizen Criminal Defendants in Connecticut,’’ was avail-
able to criminal defense attorneys. The manual outlined
the key potential pitfalls in representing noncitizen cli-
ents and provided a guide to common Connecticut crim-
inal statutes and the immigration consequences of a
conviction under those statutes. Indeed, the habeas
court found that the petitioner’s counsel had partici-
pated in seminars on representing noncitizen defen-
dants and received the manual. The manual, which was
updated in 2007 and again in 2010, also explored strate-
gies for negotiating pleas that would avoid severe and
disproportionate consequences for noncitizen clients.
See J. Baron, ‘‘A Brief Guide to Representing Non-citi-
zen Criminal Defendants in Connecticut,’’ (2010), avail-
able at http://ctpublicdefendertraining.com/materials/
immigration/CT_Crim_Imm_Guide2010.pdf (last vis-
ited March 26, 2015).5
As the foregoing demonstrates, the statutory frame-
work of the state of Connecticut has long recognized
the importance of an attorney advising his client of the
immigration consequences of a plea. The fact that the
state statutory framework recognized that an attorney
must competently advise a defendant of the immigra-
tion consequences of a plea demonstrates that this state
has considered such advice essential to ensuring the
accuracy of the plea and the fundamental fairness of
the process and, thus, supports the retroactive applica-
tion of Padilla in this state’s habeas proceedings. Cer-
tainly, as found by the habeas court, the petitioner
would not have entered his plea if he was assured of
deportation as a result thereof. In my view, the funda-
mental fairness of the plea process is unquestionably
affected when the plea is based on inaccurate legal
advice. Therefore, on the basis of this state’s long his-
tory of affording greater protections than the federal
constitution regarding the right to counsel, I would con-
clude that Padilla should be applied retroactively under
the facts of the present case.
In assessing trial counsel’s performance in advising
noncitizen defendants, Padilla announced a two-tiered
analytical framework, the application of which depends
on whether the immigration consequences are ‘‘truly
clear’’ under the law or whether the law is uncertain.
Padilla v. Kentucky, supra, 559 U.S. 369. Where the law
is ‘‘not succinct [or] straightforward,’’ counsel’s duty is
limited to doing ‘‘no more than advis[ing] a noncitizen
client that pending criminal charges may carry a risk
of adverse immigration consequences.’’ Id. However,
where the law is ‘‘truly clear, as it was in this case, the
duty to give correct advice is equally clear.’’ Id.
As in Padilla, the petitioner here was charged with
a drug trafficking offense that clearly constituted an
‘‘aggravated felony’’ under federal law, and would result
in certain and mandatory deportation from the United
States. In Padilla, the United States Supreme Court
found that ‘‘[the petitioner’s] counsel could have easily
determined that his plea would make him eligible for
deportation simply from reading the text of the statute,
which addresses not some broad classification of
crimes but specifically commands removal for all con-
trolled substances convictions except for the most triv-
ial of marijuana possession offenses. . . . The
consequences of [the petitioner’s] plea could easily be
determined from reading the removal statute, his depor-
tation was presumptively mandatory, and his counsel’s
advice was incorrect.’’ Padilla v. Kentucky, supra, 559
U.S. 368–69. Because the immigration consequences
were ‘‘truly clear,’’ the Supreme Court held counsel to
the higher standard requiring that counsel provide the
correct advice regarding the immigration conse-
quences. In Padilla, counsel had advised the defendant
that because he had been in the country so long, he
did not have to worry about immigration consequences.
Id., 359.
As noted by the habeas court, ‘‘[a]s in Padilla, the
petitioner in this case was charged with a drug traffick-
ing crime which [the] petitioner’s counsel could have
‘easily determined’ from reading the statutes would
result in presumptive mandatory deportation and ineli-
gible to seek discretionary relief. Therefore, under Pad-
illa, [the conduct of the petitioner’s counsel] must be
assessed under the stricter standard as to whether he
provided the petitioner ‘correct advice.’ Because the
law was clear and succinct, merely informing the peti-
tioner that there was a risk of deportation would not
be sufficient under Padilla in this case.’’ The habeas
court then concluded that ‘‘[t]he court finds that
although [the petitioner’s counsel at the time of the
plea] had a general knowledge of immigration law, he
was unaware of the specific consequences of the peti-
tioner’s plea in this case and as a result was unable to,
and did not, provide clear and accurate advice. Instead,
[the petitioner’s counsel at the time of the plea] gave the
petitioner incomplete, unspecific and incorrect advice
regarding the immigration consequences of his plea.
Had [the petitioner’s counsel] known the specific immi-
gration consequences of the petitioner’s [plea], he
would not have deemed it necessary for the petitioner
to consult with an attorney versed in immigration law.
In particular, the advice was incorrect because it
allowed for the possibility that the petitioner could pre-
vail at a subsequent immigration proceeding, when in
fact deportation was a virtual certainty.’’
I agree with the habeas court that Padilla should
apply retroactively, and would conclude that the perfor-
mance of the petitioner’s counsel was constitutionally
deficient. I would, therefore, affirm the decision of the
habeas court. Accordingly, I respectfully dissent.
1
The majority cites to three decisions from the Appellate Court and one
from the Superior Court that rejected the retroactive application of Padilla
to state habeas claims after Chaidez. See Alcena v. Commissioner of Correc-
tion, 146 Conn. App. 370, 374–75, 76 A.3d 742 (per curiam), cert. denied,
310 Conn. 948, 80 A.3d 905 (2013); Saksena v. Commissioner of Correction,
145 Conn. App. 152, 158–59, 76 A.3d 192, cert. denied, 310 Conn. 940, 79
A.3d 892 (2013); Gonzalez v. Commissioner of Correction, 145 Conn. App.
28, 33, 74 A.3d 509 (per curiam), cert. denied, 310 Conn. 929, 78 A.3d 145
(2013); Gjini v. Warden, Superior Court, judicial district of Tolland, Docket
No. CV-10-4003834-S (March 6, 2013). A review of these decisions demon-
strates that two of the three Appellate Court decisions, Alcena and Gonzalez,
were per curiam opinions that applied Chaidez in one sentence without
any analysis. Alcena v. Commissioner of Correction, supra, 374; Gonzalez
v. Commissioner of Correction, supra, 33. In the third Appellate Court
decision, Saksena, the petitioner had conceded in his supplemental brief
that Padilla did not apply, so the court did not engage in any analysis of
the issue whatsoever. Saksena v. Commissioner of Correction, supra, 158.
The Superior Court’s analysis in Gjini v. Warden, supra, is equally conclu-
sory. Furthermore, none of the Connecticut cases cited by the majority
analyzed the claim in light of Connecticut’s unique constitutional and statu-
tory framework. Accordingly, these decisions are not persuasive authority
and can hardly represent this state’s law regarding whether Padilla should
apply retroactively to state habeas claims.
The majority claims that I ‘‘[miss] the point that [these cases] are cited
only to show that, contrary to the petitioner’s assertion, the retroactive
application of Padilla could result in the filing of a large number of claims
because the pool of potential applicants is not necessarily extremely limited.’’
See footnote 12 of the majority opinion. First, I disagree with the majority
that the retroactive application of Padilla could result in the filing of a large
number of claims because the majority of the individuals with convictions
similar to the petitioner’s would likely already have been deported because
the petitioner’s deportation was only halted because of the political situation
in Haiti. Second, even if the retroactive application of Padilla does result
in the filing of a large number of claims, I disagree that this is a valid reason
not to retroactively apply a rule that implicates the fundamental fairness of
the plea process and is so central to the validity of the plea. The fundamental
fairness of the plea process should trump any floodgates argument. More-
over, in order to challenge a conviction under Padilla, an individual must
still meet the stringent test of Strickland. Accordingly, I am not persuaded
by the majority’s argument that applying Padilla retroactively to state habeas
proceedings would result in the filing of a large number of claims.
2
The court in Teague commented that ‘‘[t]he language used by Justice
Harlan in Mackey leaves no doubt that he meant the second exception to
be reserved for watershed rules of criminal procedure: ‘Typically, it should
be the case that any conviction free from federal constitutional error at the
time it became final, will be found, upon reflection, to have been fundamen-
tally fair and conducted under those procedures essential to the substance
growth in social capacity, as well as judicial perceptions of what we can
rightly demand of the adjudicatory process, will properly alter our under-
standing of the bedrock procedural elements that must be found to vitiate
the fairness of a particular conviction. For example, such, in my view, is
the case with the right to counsel at trial now held a necessary condition
precedent to any conviction for a serious crime.’ [Mackey v. United States,
supra, 401 U.S. 693–94].’’ (Emphasis in original.) Teague v. Lane, supra, 489
U.S. 311–12.
3
Of the twelve decisions cited by the majority that apply a Teague analysis
of retroactivity after Danforth, only four of those decisions involve the
retroactive application of Padilla. Furthermore, in most of the decisions
cited by the majority, the courts do not indicate that their respective state
constitutions provide greater protections than the federal constitution. See,
e.g., In re Gomez, 45 Cal. 4th 650, 655, 199 P.3d 574, 88 Cal. Rptr. 3d 177
(2009) (‘‘[o]rdinarily, we will provide a remedy on collateral review of a
final judgment if that remedy would be available in the federal courts’’). As
I explain more fully herein, this court has consistently held that the right
to counsel under our state constitution is broader than the right to counsel
under the federal constitution. Accordingly, the analysis in these cases is
not persuasive to the question presented in the present appeal.
4
The majority asserts that ‘‘[r]egardless of how Justice Eveleigh’s
approach is characterized, it virtually swallows the exception because it
allows the court to decide whether a constitutional rule is new on the basis
of whatever the court finds persuasive, including Connecticut’s statutory
framework and whether the trial or plea is deemed to be ‘fair’ without
application of the rule.’’ I disagree. The United States Supreme Court in
Teague recognized that a new rule regarding a procedure that ‘‘implicate[s]
the fundamental fairness of the trial’’ and is ‘‘so central to an accurate
determination of innocence or guilt’’ must be applied retroactively. Teague
v. Lane, supra, 489 U.S. 312–13. In the present case, the habeas court made
the finding that the petitioner would not have pleaded guilty to the charge
had he been properly advised of the immigration consequences of his plea.
It is axiomatic that a plea is only valid if it is knowing, intelligent and
voluntary. See Brady v. United States, 397 U.S. 742, 748, 90 S. Ct. 1463, 25
L. Ed. 2d 747 (1970) (‘‘[w]aivers of constitutional rights not only must be
voluntary but must be knowing, intelligent acts done with sufficient aware-
ness of the relevant circumstances and likely consequences’’). Therefore,
the accuracy of the petitioner’s plea is implicated in the present case. The
habeas court found that if he had not had inaccurate or misleading informa-
tion from his attorney, he would not have pleaded guilty. Thus, the inaccurate
and misleading information from his attorney compromised the foundation
for the petitioner’s plea. My position in the present case does not obliterate
the second Teague exception, but is merely a logical extension of that
exception in light our state’s unique constitutional and statutory framework.
It is important to remember that the standard for evaluating whether
the second exception applies is not whether the ultimate outcome for the
petitioner would have been different (i.e., would a jury ultimately have
convicted the defendant). Indeed, we can not make such factual assessments
based on the procedural posture of the present case, which resulted in
a plea. The appropriate analysis is whether the new rule implicates the
fundamental fairness of the process and is so central to the ultimate determi-
nation—in this case, a valid guilty plea.
Furthermore, the majority criticizes my approach ‘‘because it permits an
overly broad interpretation of ‘fundamental fairness.’ ’’ See footnote 19 of
the majority opinion. I did not create the reference to the concept of ‘‘funda-
mental fairness’’ in the second exception. The United States Supreme Court
itself included the concept of ‘‘fundamental fairness’’ as part of the second
exception in Teague. See Teague v. Lane, supra, 489 U.S. 312 (‘‘[w]e believe
it desirable to combine the accuracy element of the Desist version of the
second exception with the Mackey requirement that the procedure at issue
must implicate the fundamental fairness of the trial’’). Therefore, any criti-
cism of having to apply the concept of ‘‘fundamental fairness,’’ is a criticism
of Teague itself, which the majority claims to adopt.
5
Furthermore, in light of the statutory requirements in Connecticut, I also
assert that the requirement in Padilla that counsel advise their clients of
the immigration consequences of a plea is arguably not a ‘‘new rule’’ in
Connecticut. In support of my conclusion, I further note that the New Mexico
Supreme Court has recently arrived at a similar conclusion. Specifically, in
Ramirez v. State, 333 P.3d 240, 242 (N.M. 2014), the New Mexico Supreme
Court considered the defendant’s 1997 guilty pleas to the possession of
one ounce of marijuana, possession of drug paraphernalia, and concealing
identity. In 2009, the defendant was informed that his pleas rendered him
‘‘inadmiss[ible] to the United States.’’ (Internal quotation marks omitted.)
Id. Thereafter, he sought to vacate his prior pleas on the basis of ineffective
assistance of counsel. Id. The defendant asserted that his attorney had never
advised him regarding the immigration consequences of his pleas. Id. The
court noted that, in 2004, it had decided State v. Paredez, 136 N.M. 533,
539, 101 P.3d 799 (2004), in which it held that a criminal defense attorney
who represents a noncitizen client ‘‘must advise that client of the specific
immigration consequences of pleading guilty’’ to pending charges. In
Paradez, the New Mexico Supreme Court held that in order to establish
ineffective assistance of counsel, a defendant must show that: ‘‘(1) counsel’s
performance was deficient, and (2) the deficient performance prejudiced
the defense.’’ (Internal quotation marks omitted.) Id., 538. ‘‘Advising a client
that deportation is not a consequence when deportation is a possibility,
advising the client that deportation is only a possibility when it is a virtual
certainty, or failing to give the client any advice at all regarding immigration
consequences all constitute evidence of deficient advice that could satisfy
the first prong for ineffective assistance of counsel.’’ Ramirez v. State, supra,
243. The New Mexico Supreme Court was then faced with the issue of
whether to apply Paredez retroactively. The court noted that: ‘‘[p]ursuant
to Teague, New Mexico does not give retroactive effect to a new criminal
procedure rule. . . . The test determines whether a previously issued judi-
cial opinion introduced a new rule of criminal procedure or merely expanded
upon an already established rule. . . . A rule that is not deemed a ‘new
rule’ by this test may apply retroactively.’’ (Citations omitted.) Id., 244. The
court then held that ‘‘[u]nlike the federal system, since 1990 New Mexico
has required attorneys in all trial courts to advise their clients of the details
of the plea colloquy. [The standard form used to enter a plea of guilty] was
amended in 1990 to, among other things, require the judge to advise the
defendant that a conviction may have an effect on the defendant’s immigra-
tion status. [That form, which is] applicable to all New Mexico trial courts,
also obligated the attorney to certify having explained the plea colloquy to
the client in detail.’’ Id. The court further noted that ‘‘[a]t the time [the
defendant] entered his guilty pleas, additional immigration-specific and gen-
eral guidelines existed which counseled defense attorneys on how to compe-
tently advise clients regarding immigration consequences. In 1995, the
National Legal Aid and Defender Association recognized that ‘[i]n order to
develop an overall negotiation plan, counsel should be fully aware of, and
make sure the client is fully aware of . . . other consequences of conviction
such as deportation . . . .’ [National Legal Aid & Defender Association,
‘Performance Guidelines for Criminal Defense Representation,’ (1995) § 6.2];
[F. Bailey & K. Fishman, Handling Misdemeanor Cases (2d Ed. 1992) § 3.7,
pp. 5–6] (‘In misdemeanor cases, the possible consequences of a conviction
may be so drastic that the defendant must take his or her chances on a
trial. . . . A convicted alien may be deported.’).’’ Ramirez v. State, supra,
246. Therefore, the court held that ‘‘[w]e fail to see how our holding in
Paredez—seven years after [the defendant’s] pleas and fourteen years after
[the standard form used to enter a plea of guilty] was amended to require
that the trial court assure a defendant’s understanding that a guilty plea
could affect the defendant’s immigration status—announced a new rule.’’
Id., 247.
The justification for the New Mexico Supreme Court’s decision in Ramirez
is remarkably similar to the background in the present case. First, the court
noted that initially the New Mexico trial courts had to advise the clients
that there could be deportation consequences as the result of a plea, just
as § 54-1j has required since 1982. See Public Acts 1982, No. 82-177. Second,
the New Mexico Supreme Court noted that, as of 1990, the attorneys were
required to advise their clients of the consequences and potential deportation
as the result of a plea, just as the 2003 amendment to § 54-1j provided that
a trial judge in this state had to inquire if counsel had spoken with his client
regarding the potential deportation ramifications of the pleas. See Public
Acts 2003, No. 03-81, § 1. Third, the court noted the existence of publications
which alerted the practitioner of the potential pitfalls in allowing a noncitizen
to enter a plea, just as the Chief Public Defender’s Office in Connecticut
had a pamphlet published to alert practitioners regarding the dangers of
entering pleas by noncitizens, well in advance of the petitioner’s pleas. I am
persuaded by the reasoning of the New Mexico Supreme Court in Ramirez.