Saunders v. Commissioner of Correction

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WILLIE A. SAUNDERS v. COMMISSIONER
OF CORRECTION
(SC 20430)
Robinson, C. J., and McDonald, D’Auria, Mullins,
Kahn, Ecker and Keller, Js.
Syllabus
The petitioner, who had been convicted of the crimes of sexual assault and
risk of injury to a child, sought a writ of habeas corpus, claiming that
his rights to due process were violated because, at the time of his
criminal trial, he suffered from severe intellectual disabilities and physio-
logical and mental health afflictions that rendered him incompetent to
stand trial. He further alleged that, during his criminal trial, neither
his trial counsel, the state, nor the trial court sought a competency
examination for him, in violation of statute (§ 54-56d). At his criminal
trial and on direct appeal to the Appellate Court, which upheld his
conviction, the petitioner did not raise any claim regarding his compe-
tency to stand trial. The respondent, the Commissioner of Correction,
filed a return in response to the petitioner’s habeas petition, asserting
that the petitioner had procedurally defaulted because his due process
claims were not raised during his criminal trial or on direct appeal and
that he could not establish cause and prejudice to excuse the procedural
defaults. The petitioner filed a reply, in which he asserted that the
defense of procedural default did not apply to his due process claims,
that he could not have raised those claims previously because of his
developmental and intellectual disabilities, and, in the alternative, that
he could establish cause and prejudice to overcome the procedural
defaults. The respondent filed a motion to dismiss, and the habeas
court granted that motion and rendered judgment dismissing the habeas
petition. The habeas court determined that the petition and reply were
deficient because an allegation of incompetency was legally insufficient
to establish cause and prejudice. Accordingly, the habeas court con-
cluded that the petitioner’s due process claims were procedurally
defaulted and that he had failed to allege legally cognizable cause and
prejudice to overcome the defaults. On the granting of certification, the
petitioner appealed to the Appellate Court, which upheld the habeas
court’s judgment. On the granting of certification, the petitioner appealed
to this court, claiming, inter alia, that the Appellate Court incorrectly had
concluded that the procedural default doctrine applies to competency
claims. Held:
1. The Appellate Court correctly concluded that the petitioner’s competency
claim was subject to the procedural default doctrine, as the prudential
interests in finality and uniformity underlying that doctrine militated
against carving out an exception to it for competency claims: application
of the procedural default doctrine to competency claims encourages
the timely assertion of those claims when the trial court is in the best
position to determine competency and to provide a timely remedy, and
the passage of time could result in the potential for loss of evidence or
the improvement or deterioration of the petitioner’s condition, and could
hinder a habeas court’s ability to make a meaningful determination
regarding a petitioner’s competency at the time of his criminal trial;
moreover, this court has emphasized the importance of applying the
cause and prejudice standard consistently to all procedural defaults and
has recognized only two exceptions to the application of the procedural
default doctrine, including for claims of actual innocence, and the rea-
sons that led this court to carve out those exceptions were not applicable
in the context of competency claims; furthermore, this court declined
to follow federal cases that have held, pursuant to the waiver rule of
Wainwright v. Sykes (433 U.S. 72), that procedural default does not
apply to substantive competency claims, as the great weight of federal
and Connecticut habeas jurisprudence since Wainwright has transiti-
oned from a waiver standard to a forfeiture standard for procedural
default, and the procedural default standard in Connecticut is more
akin to forfeiture, which addresses the petitioner’s timing in raising a
constitutional claim rather than the mental state driving the petitioner’s
decision to waive such a claim.
2. The Appellate Court incorrectly concluded that the petitioner had failed
to allege sufficient cause and prejudice to overcome his procedural
defaults:
a. This court rejected the Appellate Court’s conclusion that mental incom-
petency is internal, rather than external, to the petitioner and, thus, that
a claim of incompetency is legally insufficient to satisfy the cause prong
of the cause and prejudice standard: the term ‘‘internal’’ is defined as
something fairly attributable to the petitioner, whether cause is internal
presumes a level of participation by the petitioner in his defense, and
the duty that § 54-56d (c) imposes on trial counsel, the state, and the
trial court to raise the issue of competency indicates that incompetency
is external to the petitioner; moreover, there was a lack of precedential
support for the respondent’s claim that, on collateral review, procedurally
defaulted due process competency claims must be brought with an
accompanying ineffective assistance of counsel claim, as habeas petition-
ers are not precluded from raising freestanding competency claims,
when, as in the present case, an objective factor is external to the defense
yet still tangential to effective assistance of counsel.
b. The habeas court incorrectly determined that the petitioner had failed
to allege sufficient prejudice to survive the respondent’s motion to dis-
miss: the petitioner sufficiently alleged that, if the trial court had him
evaluated, his several cognitive limitations and significant physiological
and mental health afflictions would have established that he was incom-
petent to stand trial, was not restorable to competency and, therefore,
would not have been tried and convicted; accordingly, the judgment was
reversed and the case was remanded so that the petitioner could produce
evidence to support his claim and to rebut the defense of procedural
default.
Argued October 18, 2021—officially released April 19, 2022
Procedural History
Amended petition for a writ of habeas corpus, brought
to the Superior Court in the judicial district of Tolland,
where the court, Kwak, J., granted the respondent’s
motion to dismiss and rendered judgment thereon, from
which the petitioner, on the granting of certification,
appealed to the Appellate Court, Alvord, Prescott and
Moll, Js., which affirmed the judgment of the habeas
court, and the petitioner, on the granting of certifica-
tion, appealed to this court. Reversed; further proceed-
ings.
Vishal K. Garg, for the appellant (petitioner).
Robert J. Scheinblum, senior assistant state’s attor-
ney, with whom, on the brief, were Maureen Platt,
state’s attorney, Bruce R. Lockwood, supervisory assis-
tant state’s attorney, and Eva B. Lenczewski, former
supervisory assistant state’s attorney, for the appellee
(respondent).
Opinion
D’AURIA, J. In this certified appeal, we must deter-
mine whether the defense of procedural default, which
prevents courts from reaching the merits of a constitu-
tional claim raised for the first time in a habeas proceed-
ing in the absence of a showing of cause and prejudice,
applies to a due process claim that is based on incompe-
tency to stand trial.
The petitioner, Willie A. Saunders, appeals from the
judgment of the Appellate Court, which upheld the
habeas court’s dismissal of his petition for a writ of
habeas corpus as barred by procedural default. The
petitioner claims that the Appellate Court incorrectly
concluded that (1) the defense of procedural default
applies to competency claims, and (2) his pleadings
failed to allege sufficient cause and prejudice to over-
come the procedural default defense. We disagree with
the petitioner that competency claims are categorically
exempt from being procedurally defaulted because
incompetency may satisfy the cause and prejudice stan-
dard to excuse a procedural default. In the petitioner’s
case, our review of the petition leads us to conclude
that his pleadings met the standard necessary to survive
a motion to dismiss. Accordingly, we reverse the Appel-
late Court’s judgment and remand the case to that court
with direction to remand it to the habeas court for
an evidentiary hearing on the threshold question of
whether the petitioner was incompetent at the time of
his underlying criminal trial or his direct appeal and, if
so, whether he suffered any resulting prejudice, thereby
excusing his procedural default.
The Appellate Court’s opinion contains the pertinent
facts and procedural history; see Saunders v. Commis-
sioner of Correction, 194 Conn. App. 473, 475–81, 221
A.3d 810 (2019); which we summarize in relevant part.
A jury found the petitioner guilty of sexual assault in
the first degree in violation of General Statutes § 53a-
70 (a) (2) and risk of injury to a child in violation of
General Statutes § 53-21 (a) (2). Id., 477. The trial court
sentenced the petitioner to ten years of imprisonment
followed by fifteen years of special parole. Id. The peti-
tioner appealed to the Appellate Court, claiming that
‘‘the state adduced insufficient evidence to sustain his
conviction . . . the trial court improperly allowed the
state to comment on missing witnesses during final
argument, and the . . . state engaged in prosecutorial
impropriety during final argument and, therefore,
deprived him of his due process right to a fair trial.’’
(Internal quotation marks omitted.) Id., 477–78 n.3. The
petitioner raised no claim regarding his competency
to stand trial. See id. The Appellate Court upheld the
petitioner’s conviction on direct appeal; see State v.
Saunders, 114 Conn. App. 493, 509, 969 A.2d 868, cert.
denied, 292 Conn. 917, 973 A.2d 1277 (2009); and this
court denied his petition for certification to appeal.
State v. Saunders, 292 Conn. 917, 973 A.2d 1277 (2009).
The present case is the petitioner’s second in which
he seeks a writ of habeas corpus.1 He raises claims of
two ‘‘due process violations under the fifth and four-
teenth amendments to the United States constitution
and article first, §§ 8 and 9, of the Connecticut constitu-
tion on the grounds that [he] was incompetent to be
prosecuted and to stand trial . . . .’’ Saunders v. Com-
missioner of Correction, supra, 194 Conn. App. 478.
Count one of his habeas petition alleges that, at the time
of trial, the petitioner suffered from severe intellectual
disabilities, including ‘‘an inability to read or write, a
diagnosis of ‘mental retardation’ at a young age, and
brain functioning equivalent to that of a ten year old
child.’’ Id. Because of these deficiencies, the petitioner
alleges, he ‘‘could not comprehend the nature of the
criminal proceedings against him, other than the gen-
eral nature of the charges and the fact that he was
facing incarceration if convicted.’’ Id. Count two of the
petition alleges that, at the time of trial, the petitioner
also suffered from ‘‘significant physiological and mental
health afflictions,’’ including ‘‘a long history of epileptic
seizures, a visibly misshapen head, paranoia, schizo-
phrenia, and depression, and that he had been hospital-
ized on numerous occasions in North Carolina prior to
his arrest . . . .’’ Id., 479. Both counts allege that his
trial counsel, the state, and the trial court failed to
request a competency examination during the course
of the proceedings, in violation of General Statutes § 54-
56d. Id., 478–79.
The respondent, the Commissioner of Correction,
filed a return denying the petitioner’s material allega-
tions and asserting several affirmative defenses, includ-
ing procedural default as to both counts of the petition.
Id., 479. The respondent argued that the petitioner did
not raise his due process claims regarding competency
to stand trial during his criminal trial or on direct appeal
and, therefore, had procedurally defaulted. Id., 479–80.
The respondent further contended that the petitioner
could not establish sufficient cause and prejudice to
excuse the defaults. Id., 480.2 The petitioner, in his reply,
argued that the defense of procedural default did not
apply to his due process claims, that he could not have
raised those claims previously because of his develop-
mental and intellectual disabilities, and, in the alterna-
tive, that he could establish cause and prejudice to over-
come the procedural defaults. Id.
The respondent moved to dismiss the second habeas
petition on the ground that the petitioner’s due process
claims were procedurally defaulted. Id., 480–81. The
habeas court granted the motion, ‘‘determin[ing] that
the petitioner’s due process claims were procedurally
defaulted and that he had failed to allege legally cogniza-
ble cause and prejudice to overcome the procedural
defaults.’’ (Footnotes omitted.) Id., 481.
The habeas court granted the petitioner certification
to appeal to the Appellate Court, which upheld the habeas
court’s judgment. See id., 481, 504. We granted the peti-
tioner’s petition for certification to appeal, limited to the
following issues: (1) ‘‘Did the Appellate Court correctly
conclude that the doctrine of procedural default applies
to competency claims?’’ And (2) ‘‘[d]id the Appellate
Court correctly conclude that the petitioner’s pleadings
failed to allege sufficient cause and prejudice to over-
come a procedural default?’’ Saunders v. Commis-
sioner of Correction, 334 Conn. 917, 222 A.3d 103 (2020).
We will discuss additional facts and procedural history
as necessary to address the petitioner’s claims.
I
The petitioner first claims that the Appellate Court
incorrectly concluded that the procedural default
defense applies to competency claims. He argues that,
because an incompetent defendant cannot waive any
rights,3 including fundamental rights, any valid waiver
of a fundamental right must be made on the record.
Specifically, he argues that (1) this court should follow
the guidance of federal courts that have declined to
apply procedural default to competency claims because
the harm of prosecuting an incompetent defendant out-
weighs the interests protected by the judge-made doc-
trine of procedural default, and (2) even if procedural
default is a forfeiture rule, and not a waiver rule, this
court should reject its applicability to competency claims.
In response, the respondent argues that the Appellate
Court correctly (1) applied Connecticut’s habeas jurispru-
dence, and followed the majority of federal and other
state courts, in holding that procedural default applies
to competency claims, (2) declined to follow the deci-
sion of the United States Court of Appeals for the Sec-
ond Circuit in Silverstein v. Henderson, 706 F.2d 361(2d Cir.), cert. denied, 464 U.S. 864, 104 S. Ct. 195, 78
L. Ed. 2d 171 (1983), and other federal and state court
decisions, because they improperly conflate waiver and
procedural default, and (3) concluded that the interest
in the finality of convictions outweighs the risk that a
criminal defendant will be deprived of his right not to
be prosecuted while incompetent. We agree with the
respondent.
It is well established that, although federal postcon-
viction jurisprudence does not bind us, this court has
adopted the procedural default standard articulated in
Wainwright v. Sykes, 433 U.S. 72, 87, 97 S. Ct. 2497, 53
L. Ed. 2d 594 (1977). See, e.g., Hinds v. Commissioner
of Correction, 321 Conn. 56, 70–71, 136 A.3d 596 (2016).
‘‘Under this standard, the petitioner must demonstrate
good cause for his failure to raise a claim at trial or on
direct appeal and actual prejudice resulting from the
impropriety claimed in the habeas petition.’’ (Internal
quotation marks omitted.) Id., 71. The cause and preju-
dice standard ‘‘is designed to prevent full review of
issues in habeas corpus proceedings that counsel did
not raise at trial or on appeal for reasons of tactics,
[inadvertence] or ignorance . . . .’’ (Internal quotation
marks omitted.) Crawford v. Commissioner of Correc-
tion, 294 Conn. 165, 191, 982 A.2d 620 (2009). The proce-
dural default doctrine is a prudential limitation on the
right to raise constitutional claims in collateral proceed-
ings that vindicates the interests of finality of judgments
and uniformity. See, e.g., Hinds v. Commissioner of
Correction, supra, 71–72; Crawford v. Commissioner
of Correction, supra, 188–89.
Raising the defense of procedural default in Connecti-
cut proceeds as follows: The petitioner files a petition
for a writ of habeas corpus under oath, stating the spe-
cific acts on which each claim is based and the relief
requested; whether he has, in prior petitions, challenged
the same confinement; the dispositions taken in connec-
tion with those petitions; and whether ‘‘the legal grounds
[on] which the petition is based were previously asserted
at the criminal trial, on direct appeal or in any previous
petition.’’ Practice Book § 23-22 (3). The respondent
is then required to file a return to the petition and,
specifically, must ‘‘allege any facts in support of any
claim of procedural default . . . .’’ Practice Book § 23-
30 (b). The petitioner must then file a reply to ‘‘allege
any facts and assert any cause and prejudice claimed
to permit review of any issue despite any claimed proce-
dural default. The reply shall not restate the claims of
the petition.’’ Practice Book § 23-31 (c). The habeas
court, sua sponte or on a motion by the respondent,
may dismiss the petition for ‘‘any other legally sufficient
ground . . . .’’ Practice Book § 23-29 (5).4 Alterna-
tively, the habeas court may conduct a trial, an eviden-
tiary hearing, or hear argument on a dispositive question
of law. Practice Book § 23-40. The habeas court’s con-
clusion that the petitioner procedurally defaulted his
due process claims involves a question of law; our review
is therefore plenary. See, e.g., Johnson v. Commis-
sioner of Correction, 285 Conn. 556, 566, 941 A.2d 248(2008).
Neither this court nor the United States Supreme
Court has considered whether the defense of proce-
dural default applies to due process competency claims.
We note, however, that we do not write on a clean slate.
Rather, the same interests in finality and uniformity
that apply to other procedurally defaulted constitu-
tional claims apply in the present case. See Hinds v.
Commissioner of Correction, supra, 321 Conn. 71–72;
Crawford v. Commissioner of Correction, supra, 294
Conn. 188. We conclude that these interests militate
against carving out an exception to the defense of proce-
dural default for competency claims.
As to finality, procedural default encourages petition-
ers to undertake ‘‘the opportunity to resolve the issue
shortly after trial, while evidence is still available both
to assess the defendant’s claim and to retry the defen-
dant effectively if he prevails in his appeal. . . . This
type of rule promotes not only the accuracy and effi-
ciency of judicial decisions, but also the finality of those
decisions, by forcing the defendant to litigate all of his
claims together, as quickly after trial as the docket will
allow, and while the attention of the appellate court is
focused on his case.’’ (Internal quotation marks omit-
ted.) Crawford v. Commissioner of Correction, supra,
294 Conn. 189. Procedural default also discourages peti-
tioners from sitting on claims for tactical and strategic
reasons, and ensures that evidence that is crucial to
petitioners’ claims is available for review. ‘‘Memories
fade with the passage of time, exhibits are lost, and
other evidence is less likely to be available.’’ Johnson
v. Commissioner of Correction, 218 Conn. 403, 416, 589
A.2d 1214 (1991). The greater lapse in time that occurs
between conviction and a habeas court’s consideration
of a petition, unlike the direct appellate process with
its stricter time limits, has serious consequences on
the availability of witnesses and evidence. Id. Compare
Practice Book § 63-1 (a) (direct appeal must be filed
within twenty days of judgment), with General Statutes
§ 52-470 (c) (rebuttable presumption that habeas peti-
tion was delayed without good cause if not filed within
five years of conviction deemed to be final judgment
after appellate review or expiration of time for seeking
such review) and General Statutes § 52-470 (d) (rebutta-
ble presumption that successive habeas petition was
delayed without good cause if not filed within two years
of final judgment on prior petition due to conclusion
of appellate review or expiration of time for seeking
such review).
The petitioner argues that, because the state does
not need to retry him if he succeeds on his competency
claim, the finality interest is diminished, thereby militat-
ing against the application of the procedural default
rule in this context. We do not agree. In fact, if anything,
the passage of time heightens the concern that constitu-
tional claims regarding competency be made timely.
Not only is there the potential for the loss of evidence
concerning a petitioner’s incompetency at the time of
his trial—in this case, fifteen years after it concluded—
but, potentially, the petitioner’s condition might further
deteriorate, improve, or otherwise materially change.
Courts have commented on the difficulties posed by
attempting ‘‘retrospectively [to] determin[e] an accused’s
competence to stand trial.’’ Pate v. Robinson, 383 U.S.
375, 387, 86 S. Ct. 836, 15 L. Ed. 2d 815 (1966); see also
Gold v. Warden, 222 Conn. 312, 317–18, 610 A.2d 1153(1992). Although certain circumstances require a court
to conduct nunc pro tunc, or retroactive, competency
hearings, they are generally disfavored because of the
‘‘risk that the post hoc reconstruction of the defendant’s
mental state will be unduly speculative and inherently
unreliable.’’ State v. Burgos, 170 Conn. App. 501, 529,
155 A.3d 246, cert. denied, 325 Conn. 907, 156 A.3d
538 (2017). The passage of time hinders the ability of
postconviction courts to make meaningful determina-
tions regarding a petitioner’s competency at the time
of trial. See, e.g., United States v. Arenburg, 605 F.3d
164, 171–72 (2d Cir. 2010) (remanding for nunc pro tunc
competency determination if trial court determines
meaningful hearing can be held); United States v. Auen,
846 F.2d 872, 878 (2d Cir. 1988) (same). The trial court
‘‘is in a particularly advantageous position to observe
a defendant’s conduct during a trial and has a unique
opportunity to assess a defendant’s competency. A trial
court’s opinion, therefore, of the competency of a defen-
dant is highly significant.’’ (Internal quotation marks
omitted.) State v. Connor, 292 Conn. 483, 523–24, 973
A.2d 627 (2009). A petitioner’s failure to raise the issue
of competency at trial or on direct appeal deprives the
habeas court of the crucial perspective of the jurist
presiding at the trial. Consistent with these policies,
applying the procedural default defense to competency
claims encourages the timely assertion of those claims
when the trial court is in the best position to determine
competency and to provide a timely remedy.
As to uniformity, we have emphasized the importance
of applying the cause and prejudice standard consis-
tently to all procedural defaults, whether the default
occurred at trial or on direct appeal. See, e.g., Crawford
v. Commissioner of Correction, supra, 294 Conn. 182(‘‘[i]n setting out [the cause and prejudice] standard,
the [United States] Supreme Court emphasized the
importance of the uniform application of procedural
default standards, regardless of the specific nature of
the procedural default’’); see also Coleman v. Thomp-
son, 501 U.S. 722, 747, 111 S. Ct. 2546, 115 L. Ed. 2d
640 (1991) (explaining that United States Supreme
Court cases since Wainwright ‘‘have been unanimous
in applying the cause and prejudice standard’’); New-
land v. Commissioner of Correction, 331 Conn. 546,
561, 206 A.3d 176 (2019) (claim of complete denial of
trial counsel was subject to procedural default, but prej-
udice is assumed); Council v. Commissioner of Correc-
tion, 286 Conn. 477, 489, 944 A.2d 340 (2008) (challenge
to validity of plea subject to procedural default when
petitioner failed to file motion to withdraw guilty plea or
to challenge validity of plea on direct appeal); Correia
v. Rowland, 263 Conn. 453, 461–62, 820 A.2d 1009 (2003)
(failure to raise issue of due process violation at trial
or on direct appeal for state’s failure to preserve evi-
dence was procedurally defaulted); Cobham v. Com-
missioner of Correction, 258 Conn. 30, 37–38, 779 A.2d
80 (2001) (failure to challenge allegedly illegal sentence
at trial or on direct appeal was subject to procedural
default); Johnson v. Commissioner of Correction, supra,
218 Conn. 409 (failure to challenge jury array or to raise
ineffective assistance of counsel claim at trial or on
direct appeal was subject to procedural default).
This court has recognized only two exceptions to the
requirement that a petitioner’s claims are subject to the
defense of procedural default: (1) claims pursuant to
State v. Salamon, 287 Conn. 509, 949 A.2d 1092 (2008),5
and (2) like the United States Supreme Court, claims of
actual innocence. We exempted Salamon claims from
procedural default because we concluded that the final-
ity interests6 were ‘‘insufficiently weighty’’ in those
cases and, further, that the state would ‘‘effectively be
in the same position even if the petitioner had raised
a Salamon type challenge in his criminal proceedings.’’
Hinds v. Commissioner of Correction, supra, 321 Conn.
76. Similarly, we have held that the ‘‘strong interest in
the finality of judgments, and the state’s interest in
retrying a defendant with reasonably fresh evidence,
does not require the continued imprisonment of one
who is actually innocent’’ and, therefore, have allowed
petitioners to raise a substantial claim of actual inno-
cence for the first time on collateral review. Sum-
merville v. Warden, 229 Conn. 397, 422, 641 A.2d 1356(1994); see also Murray v. Carrier, 477 U.S. 478, 496,
106 S. Ct. 2639, 91 L. Ed. 2d 397 (1986). In acknowledging
both exceptions, we have recognized that Salamon
claims and claims of actual innocence are exceedingly
rare. See, e.g., Hinds v. Commissioner of Correction,
supra, 74–75 (‘‘[o]f the 1.5 percent of [D]epartment of
[C]orrection inmates incarcerated for kidnapping or
unlawful restraint, one can reasonably assume that only
a small subset will fall within the ambit of Salamon’’);
see also Schlup v. Delo, 513 U.S. 298, 321, 115 S. Ct.
851, 130 L. Ed. 2d 808 (1995) (‘‘habeas . . . petitions
that advance a substantial claim of actual innocence
are extremely rare’’). Thus, the finality interests and,
as we explain next, the distinct and limited basis for
actual innocence claims, which previously persuaded
this court to carve out exceptions to the defense of
procedural default, are not present for competency
claims. We see no other prevailing reason to exempt
competency claims from our uniform application of
procedural default.
Citing Wainwright v. Sykes, supra, 433 U.S. 91, the
petitioner also argues that procedural default should
not apply to competency claims because the petitioner
‘‘ ‘will be the victim of a miscarriage of justice.’ ’’ Both
the United States Supreme Court and this court, how-
ever, have limited this exception to claims of actual
innocence. See Schlup v. Delo, supra, 513 U.S. 321; Sum-
merville v. Warden, supra, 229 Conn. 422. A petitioner’s
claim of incompetency at the time of trial is not the
same as a claim of incompetency at the time of his
crimes. The latter claim would address his culpability
and, therefore, his ‘‘actual innocence.’’ Perkins v. Hall,
288 Ga. 810, 826, 708 S.E.2d 335 (2011), overruled in
part on other grounds by State v. Lane, 308 Ga. 10, 838
S.E.2d 808 (2020). Instead, the claim of incompetency
at the time of trial is ‘‘a trial right—a [due process]
based protection designed to ensure that he received a
fair trial.’’ (Emphasis omitted.) Id. The habeas petitioner
‘‘does not come before the [c]ourt as one who is inno-
cent, but on the contrary as one who has been convicted
by due process of law . . . .’’ (Internal quotation marks
omitted.) Summerville v. Warden, supra, 423. Thus, the
application of procedural default to claims addressing
competency to stand trial would not result in the same
‘‘miscarriage of justice’’ that Wainwright contemplated.
Nonetheless, the petitioner argues that we should
follow the decisions of several federal courts, including
the Second Circuit, and hold that substantive compe-
tency claims7 cannot be procedurally defaulted. In Sil-
verstein v. Henderson, supra, 706 F.2d 361, the Second
Circuit declined to hold that a petitioner’s claim regard-
ing competency to stand trial was subject to procedural
default. See id., 366. The court in Silverstein applied
the logic of Pate v. Robinson, supra, 383 U.S. 375, in
which the United States Supreme Court held that a
petitioner could not waive his right to a competency
hearing at trial by failing to request one because ‘‘it is
contradictory to argue that a defendant may be incom-
petent, and yet knowingly or intelligently ‘waive’ his
right to have the court determine his capacity to stand
trial.’’ Id., 384. The Second Circuit held that this ratio-
nale also applied to a petitioner’s failure ‘‘to object or
to take an appeal on the issue’’ on collateral review,
resting its holding that procedural default does not
apply to competency claims or Wainwright’s waiver
rule. See Silverstein v. Henderson, supra, 367. Waiver,
in this context, is ‘‘an intentional relinquishment or
abandonment of a known right or privilege by the peti-
tioner personally and depended on his considered
choice.’’ (Internal quotation marks omitted.) Jackson
v. Commissioner of Correction, 227 Conn. 124, 131, 629
A.2d 413 (1993).
As the respondent and the Appellate Court aptly
noted, however, in the nearly forty years since Sil-
verstein, the great weight of federal and Connecticut
habeas jurisprudence has transitioned from a waiver
standard to a forfeiture standard for procedural default.
See Saunders v. Commissioner of Correction, supra,
194 Conn. App. 488–93. We explained in Crawford v.
Commissioner of Correction, supra, 294 Conn. 165, that
our prior habeas jurisprudence, using the deliberate
bypass standard for procedural defaults, ‘‘was predi-
cated on an assumption about federal law that later
was refuted by the federal adoption of cause and preju-
dice for all procedural defaults . . . .’’ Id., 188. We have
defined forfeiture in the criminal context as ‘‘the failure
to make the timely assertion of a right . . . .’’ (Internal
quotation marks omitted.) Mozell v. Commissioner of
Correction, 291 Conn. 62, 71, 967 A.2d 41 (2009). Thus,
our procedural default standard is more akin to forfei-
ture, which addresses the petitioner’s timing in raising
a constitutional claim and not the mental state driving
his decision to waive a claim. Additionally, Silverstein
does not discuss the finality or uniformity interests
served by procedural default. We are persuaded that,
given the more recent move away from a waiver stan-
dard for procedural default, and the compelling finality
and uniformity interests implicated, Silverstein is not
helpful in resolving the contemporary question of
whether to apply procedural default to competency
claims.8
In concluding that the Appellate Court correctly held
that the petitioner’s claim is subject to procedural
default, we recognize the predicament facing habeas
petitioners who may have been incompetent at the time
of trial and, because of that incompetency, failed to
raise the issue at trial or on direct appeal. Because we
conclude, however, that, if properly pleaded, incompe-
tency is a legally cognizable ‘‘cause’’ that may survive
a motion to dismiss; see part II A of this opinion; the
potential harm of applying procedural default to compe-
tency claims is mitigated.
II
The petitioner next challenges the Appellate Court’s
conclusion that his pleadings failed to allege sufficient
cause and prejudice to overcome a procedural default.
As to the cause prong, he argues that incompetency
can constitute cause.9 As to the prejudice prong, he
argues that prejudice must be presumed because incom-
petency to stand trial constitutes structural error. The
respondent counters that the Appellate Court correctly
held that the petitioner’s reply was deficient pursuant to
Practice Book § 23-31 (c).10 As to cause, the respondent
argues that the Appellate Court correctly held that the
petitioner’s mental impairment is not an external imped-
iment to his defense and, thus, cannot suffice to over-
come the procedural default. The respondent also pos-
its that, on collateral review, due process claims of
incompetence to stand trial must be brought with an
accompanying ineffective assistance of counsel claim.
The respondent does not address the sufficiency of the
petitioner’s allegation of prejudice. We address each
prong in turn.
A
The United States Supreme Court has left open for
resolution the precise definition of cause and prejudice
for more than forty years; see Wainwright v. Sykes,
supra, 433 U.S. 87; but has explained ‘‘that the existence
of cause for a procedural default must ordinarily turn on
whether the [petitioner] can show that some objective
factor external to the defense impeded counsel’s efforts
to comply with the [s]tate’s procedural rule.’’ (Emphasis
added.) Murray v. Carrier, supra, 477 U.S. 488; accord
Johnson v. Commissioner of Correction, supra, 285
Conn. 568. ‘‘A factor is external to the defense if it
‘cannot fairly be attributed to’ the prisoner.’’ Davila v.
Davis, U.S. , 137 S. Ct. 2058, 2065, 198 L. Ed.
2d 603 (2017). Objective factors external to the defense
include, but are not limited to, ‘‘a showing that the
factual or legal basis for a claim was not reasonably
available to counsel,’’ outside interference by officials
that made compliance impracticable, and ineffective
assistance of counsel that violates the sixth amend-
ment. Murray v. Carrier, supra, 488.
Cause and prejudice replaced the ‘‘deliberate bypass’’
standard in federal and state habeas jurisprudence as
the standard courts apply in response to a procedural
default. The deliberate bypass standard had assessed
‘‘whether the record affirmatively disclose[d] that the
petitioner’s decision to waive his right to appeal was
made voluntarily, knowingly and intelligently.’’ Valeri-
ano v. Bronson, 209 Conn. 75, 79, 546 A.2d 1380 (1988).
The cause and prejudice standard, instead, ‘‘rests not
only on the need to deter intentional defaults’’ but also
on the judgment that the costs of habeas review are
high when a trial default has occurred. Murray v. Car-
rier, supra, 477 U.S. 487. A trial default ‘‘deprives the
trial court of an opportunity to correct any error without
retrial, detracts from the importance of the trial itself,
gives state appellate courts no chance to review trial
errors, and exacts an extra charge by undercutting the
[s]tate’s ability to enforce its procedural rules.’’ (Inter-
nal quotation marks omitted.) Id. The United States
Supreme Court has explained that these costs ‘‘do not
disappear when the default stems from counsel’s igno-
rance or inadvertence rather than from a deliberate
decision, for whatever reason, to withhold a claim.’’ Id.;
see also Wainwright v. Sykes, supra, 433 U.S. 87–88
(noting that cause and prejudice standard is narrower
than deliberate bypass standard).
The cause and prejudice standard, therefore, is
designed to default inadvertent forfeitures of constitu-
tional claims, as well as intentional waivers. The cause
and prejudice standard is also designed to excuse proce-
dural defaults beyond a petitioner’s control. For a cause
to be ‘‘internal,’’ the law presumes some level of partici-
pation by the petitioner in his defense so that we hold
him answerable for failing to raise a claim at trial or
on direct appeal, whether it is active participation, such
as intentional waivers, or passive participation, such
as inadvertent forfeitures. Incompetency, on the other
hand, has the effect of the petitioner’s being unable to
participate in his defense. See General Statutes § 54-
56d (a). The due process protection against trying an
incompetent defendant finds support in the common-
law ban on ‘‘trials in absentia; the mentally incompetent
defendant, though physically present in the courtroom,
is in reality afforded no opportunity to defend himself.’’
(Internal quotation marks omitted). Drope v. Missouri,
420 U.S. 162, 171, 95 S. Ct. 896, 43 L. Ed. 2d 103 (1975).
Indeed, we measure incompetence to stand trial by
whether the defendant ‘‘is unable to understand the
proceedings against him or her or to assist in his or
her own defense.’’ General Statutes § 54-56d (a).
Determining whether a cause is internal or external
based on a petitioner’s ability to participate in his
defense is similar to drawing the distinction between
the kinds of attorney error that we do or do not impute
to petitioners for purposes of satisfying the cause prong
of the cause and prejudice standard. On the one hand,
a petitioner is bound by counsel’s tactical decisions,
whether counsel is flouting procedural rules or hedging
against strategic risks. See Reed v. Ross, 468 U.S. 1,
13–14, 104 S. Ct. 2901, 82 L. Ed. 2d 1 (1984). In those
situations, excusing the procedural default ‘‘would be
contrary to [well settled] principles of agency law.’’
Coleman v. Thompson, supra, 501 U.S. 754, citing 1
Restatement (Second), Agency § 242, p. 534 (1958)
(master is subject to liability for harm caused by negli-
gent conduct of servant within scope of employment).
On the other hand, ‘‘if the procedural default is the
result of ineffective assistance of counsel, the [s]ixth
[a]mendment itself requires that responsibility for the
default be imputed to the [s]tate. . . . In other words,
it is not the gravity of the attorney’s error that matters,
but that it constitutes a violation of [the] petitioner’s
right to counsel, so that the error must be seen as an
external factor, i.e., imputed to the [s]tate.’’ (Citation
omitted; internal quotation marks omitted.) Coleman
v. Thompson, supra, 754.
We decline to follow the Appellate Court’s analysis,
and that of several federal courts of appeals, holding
that mental incompetency is ‘‘internal’’ to the petitioner
and therefore not recognizing incompetency as legally
sufficient to satisfy the cause prong of the cause and
prejudice standard. See Saunders v. Commissioner of
Correction, supra, 194 Conn. App. 503–504. Four cir-
cuits have concluded that incompetency is internal
because ‘‘[s]omething that comes from a source within
the petitioner is unlikely to qualify as an external imped-
iment.’’ Harris v. McAdory, 334 F.3d 665, 669 (7th Cir.
2003), cert. denied, 541 U.S. 992, 124 S. Ct. 2022, 158
L. Ed. 2d 499 (2004); see also Gonzales v. Davis, 924
F.3d 236, 242–44 and 244 n.4 (5th Cir. 2019), cert. denied,
U.S. , 140 S. Ct. 1143, 206 L. Ed. 2d 199 (2020);
Johnson v. Wilson, 187 Fed. Appx. 455, 458 (6th Cir.
2006), cert. denied, 549 U.S. 1218, 127 S. Ct. 1273, 167
L. Ed. 2d 96 (2007); Hull v. Freeman, 991 F.2d 86, 91
(3d Cir. 1993). We find the analysis of these courts
flawed and, therefore, reject this conclusion. Specifi-
cally, we do not read the case law to consider pertinent
to a determination of external versus internal cause
whether that cause comes from ‘‘within the petitioner’’
(e.g., within his mind or body). Rather, ‘‘internal’’ is
defined as ‘‘something fairly attributable to the peti-
tioner,’’ and, as we have explained, whether cause is
internal presumes a level of participation by the peti-
tioner in his defense.11 The fact that our statutes impose
a duty on defense counsel, the state, and the trial
court—but not the defendant himself—to raise the issue
of competency also informs us that incompetency is
external to the petitioner. See General Statutes § 54-
56d (c). And, unlike other causes of procedural default
that courts have held are internal to a petitioner, such
as illiteracy or limited education; see, e.g., Harris v.
McAdory, supra, 669; only competence to stand trial is
a constitutionally protected due process right.
We instead agree with the United States Court of
Appeals for the Eighth Circuit, which has recognized
incompetency as legally sufficient to satisfy the cause
prong of the cause and prejudice standard and to excuse
procedural default. In doing so, the Eighth Circuit held
that ‘‘there must be a conclusive showing that mental
illness interfered with a petitioner’s ability to appreciate
his or her position and [to] make rational decisions
regarding his or her case at the time during which he
or she should have pursued . . . relief.’’ Holt v. Bow-
ersox, 191 F.3d 970, 974 (8th Cir. 1999); see also Schnei-
der v. McDaniel, 674 F.3d 1144, 1154 (9th Cir.)
(explaining that Ninth Circuit precedent does ‘‘not nec-
essarily foreclose the possibility that a pro se petitioner
might demonstrate cause in a situation where a mental
condition rendered the petitioner completely unable
to comply with a state’s procedures and he had no
assistance’’), cert. denied, 568 U.S. 1001, 133 S. Ct. 579,
184 L. Ed. 2d 380 (2012); Farabee v. Johnson, 129 Fed.
Appx. 799, 802 (4th Cir. 2005) (assuming, without decid-
ing, ‘‘that profound mental illness may constitute cause
to excuse a procedural default in certain circum-
stances’’ but determining that petitioner did not demon-
strate that any mental illness actually caused his proce-
dural defaults). Consistent with the standard the Eighth
Circuit has articulated, if a petition has been sufficiently
pleaded to survive a motion to dismiss, habeas courts
must assess whether a petitioner’s incompetency satis-
fies the cause prong of the cause and prejudice stan-
dard.
In the present case, the Appellate Court was ‘‘per-
suaded that the risk of a truly incompetent person being
convicted and sentenced without any requested exami-
nation of, or other challenge to, his or her competency
during the criminal trial proceedings or on direct appeal
is so minimal that the systemic interests of finality,
accuracy of judicial decisions, and conservation of judi-
cial resources vastly outweighed such risk.’’ Saunders
v. Commissioner of Correction, supra, 194 Conn. App.
493. This assumption is premised on attorneys—those
appearing on behalf of the petitioner and the state, as
well as the court itself—being duty bound to raise the
issue if it appears that the defendant is not competent
to stand trial. See General Statutes § 54-56d (c); see
also Pate v. Robinson, supra, 383 U.S. 385 (court must
conduct competency hearing when evidence ‘‘raises a
‘bona fide doubt’ ’’ as to defendant’s competence to
stand trial); State v. Skok, 318 Conn. 699, 722, 122 A.3d
608 (2015) (‘‘[a] trial court has an independent obliga-
tion to inquire, sua sponte, into a defendant’s compe-
tency when there is sufficient evidence before the court
to raise a reasonable doubt as to whether the defendant
can understand the proceedings or assist in her
defense’’). There is also the presumption that a defen-
dant is competent to stand trial. See General Statutes
§ 54-56d (b). Given this presumption, and our confi-
dence in our state bar to raise issues of competency,
we agree with the Appellate Court that the risk of a
truly incompetent person being convicted and sen-
tenced without challenge is minimal—but not zero.12
The cause and prejudice standard is meant to balance
the need for keeping habeas relief available to those
petitioners who warrant it against the societal costs of
habeas relief, and is not meant to thwart the interest
in preventing a miscarriage of justice. See Newland v.
Commissioner of Correction, supra, 331 Conn. 559–60.
We disagree with the respondent that due process
competency claims must therefore be brought with an
accompanying ineffective assistance of counsel claim.
‘‘In habeas corpus proceedings, courts often describe
constitutional claims that are not tethered to a petition-
er’s sixth amendment right to counsel as ‘freestand-
ing.’ ’’ McCarthy v. Commissioner of Correction, 192
Conn. App. 797, 810 n.8, 218 A.3d 638 (2019). Although
ineffective assistance of counsel in violation of the sixth
amendment is the most commonly asserted basis for
cause to excuse procedural default; 7 W. LaFave et al.,
Criminal Procedure (3d Ed. 2007) § 28.4 (d), p. 202;
it is not the exclusive basis. In holding that a novel
constitutional claim could give rise to cause and excuse
a procedural default, the United States Supreme Court
has explained that there is a ‘‘broad range of potential
reasons for an attorney’s failure to comply with a proce-
dural rule, and [a] virtually limitless array of contexts
in which a procedural default can occur . . . .’’ Reed
v. Ross, supra, 468 U.S. 13. ‘‘[T]he failure of counsel to
raise a constitutional issue reasonably unknown to him
is one situation in which the [cause] requirement is
met.’’ Id., 14. The United States Supreme Court, there-
fore, has recognized as sufficient to establish cause a
scenario in which, as in the present case, an objective
factor is external to the defense yet still tangential to
the effective assistance of counsel. Given the lack of
precedential support for the proposition that procedur-
ally defaulted competency claims must be brought with
an ineffective assistance of counsel claim, we do not
preclude the petitioner from raising a freestanding com-
petency claim.13
B
Although the petitioner alleged prejudice in his reply,
stemming from his conviction, incarceration, and spe-
cial parole, the habeas court concluded that his allega-
tion did not suffice. On appeal, the petitioner argues
only that he was not required to allege or prove preju-
dice because prejudice is presumed for competency
claims. See Newland v. Commissioner of Correction,
supra, 331 Conn. 548 (concluding that, ‘‘for purposes of
procedural default, after the petitioner has established
good cause for failing to raise his claim that he was
completely deprived of his right to counsel [at his crimi-
nal trial], prejudice is presumed’’). The petitioner pro-
vides no further support as to this issue. The respondent
argues that the petitioner’s reply was deficient because
he failed to plead a legally sufficient cause to rebut the
defense of procedural default.
The habeas court concluded that the petition and
reply were deficient because an allegation of incompe-
tency is legally insufficient to establish cause and preju-
dice. The Appellate Court agreed with the habeas court
to the extent that an allegation of incompetency is not
legally sufficient to establish cause but did not address
the petitioner’s argument regarding prejudice. See
Saunders v. Commissioner of Correction, supra, 194
Conn. App. 499, 503 n.20.
With respect to the prejudice prong, a habeas peti-
tioner must show ‘‘not merely that the errors at his trial
created a possibility of prejudice, but that they worked
to his actual and substantial disadvantage, infecting his
entire trial with error of constitutional dimensions.’’
(Emphasis in original.) United States v. Frady, 456 U.S.
152, 170, 102 S. Ct. 1584, 71 L. Ed. 2d 816 (1982); accord
Hinds v. Commissioner of Correction, supra, 321 Conn.
84. ‘‘In applying that standard, the [United States
Supreme Court] indicated that the petitioner would
have to demonstrate that, with the proper instruction,
there was a ‘substantial likelihood’ that the jury would
not have found the petitioner guilty of the crime of
which he was convicted. . . . Substantial likelihood or
reasonable probability does not require the petitioner
to demonstrate that the jury more likely than not would
have acquitted him had it properly been instructed. . . .
‘A reasonable probability is a probability sufficient to
undermine confidence in the outcome.’ ’’ (Citations
omitted.) Hinds v. Commissioner of Correction, supra,
84–85; 7 W. LaFave, supra, § 28.4 (d), p. 207 (explaining
that United States Supreme Court has clarified that,
‘‘in order to establish prejudice under [Wainwright], a
petitioner must demonstrate that had the constitutional
claim been raised in accordance with state rules, there
is a ‘reasonable probability that the result of the trial
would have been different’ ’’). The prejudice inquiry
often overlaps or merges with the showing of harm
required to prevail on the underlying constitutional
claim of error. See Johnson v. Commissioner of Correc-
tion, supra, 285 Conn. 570–71 (showing of prejudice
necessary to succeed on ineffective assistance of coun-
sel claim necessarily satisfies prejudice prong of proce-
dural default); see also Carraway v. Commissioner of
Correction, 317 Conn. 594, 600 n.6, 119 A.3d 1153 (2015)
(‘‘[i]n the context of a guilty plea . . . to succeed on
the prejudice prong the petitioner must demonstrate
that, but for counsel’s alleged ineffective performance,
the petitioner would not have pleaded guilty and would
have proceeded to trial’’ (internal quotation marks omit-
ted)).14 In the context of a claimed due process violation
for being tried and convicted while incompetent, to
prove prejudice, the petitioner therefore must show
that there is a reasonable probability that, had the issue
been raised, the trial court would have found him
incompetent and not restorable to competency.15
We disagree with the habeas court that the petitioner
failed to allege sufficient prejudice to survive a motion
to dismiss. Because the habeas court dismissed the
petition on a motion by the respondent, the petitioner
was not allowed to make a conclusive showing that,
had the trial court ordered a competency evaluation,
he would have been found incompetent to stand trial
and not restorable to competency. The petitioner’s reply
to the respondent’s return states that he ‘‘is prejudiced
because he stands convicted of sexual assault in the first
degree and is currently serving [ten] years of special
parole.’’ The petition further alleges that the petitioner
‘‘was not competent to be prosecuted and to stand trial’’
and that, due to his severe cognitive limitations and
significant physiological and mental health afflictions,
it was impossible for him to (1) ‘‘have any legally compe-
tent understanding of the criminal justice court system
at the time of his arrest and subsequent trial,’’ (2) ‘‘under-
stand the criminal justice legal proceedings engendered
by and encompassed by his arrest and subsequent trial,’’
and (3) ‘‘appreciate and to understand in a legally com-
petent manner his pending prosecution and criminal
trial, such that he could not effectively assist in his
defense.’’ Reading the pleadings ‘‘broadly and realisti-
cally, rather than narrowly and technically’’; (internal
quotation marks omitted) Carpenter v. Commissioner
of Correction, 274 Conn. 834, 842, 878 A.2d 1088 (2005);
we are satisfied that the petitioner has sufficiently
alleged that, had the trial court had him evaluated, his
severe cognitive limitations and significant physiologi-
cal and mental health afflictions would have established
that he was incompetent to stand trial, was not restor-
able to competency and, therefore, would not have been
tried and convicted. Thus, we conclude that the plead-
ings satisfy Practice Book § 23-31 (c). See footnote 10
of this opinion. On remand, the petitioner must produce
evidence to support this claim and thereby successfully
rebut the defense of procedural default.
Accordingly, the case must be remanded to the habeas
court to address whether the petitioner was incompe-
tent at the time of his criminal trial or direct appeal,
thereby satisfying the cause and prejudice exception to
the doctrine of procedural default.
The judgment of the Appellate Court is reversed and
the case is remanded to that court with direction to
reverse the habeas court’s judgment and to remand the
case to the habeas court for further proceedings in
accordance with this opinion.
In this opinion the other justices concurred.
1
In his first habeas petition, the petitioner alleged that his trial counsel
rendered ineffective assistance by failing to call additional alibi witnesses.
Saunders v. Commissioner of Correction, supra, 194 Conn. App. 478. The
habeas court denied the petition and denied certification to appeal. Id. The
petitioner appealed to the Appellate Court, which dismissed the appeal. See
Saunders v. Commissioner of Correction, 143 Conn. App. 902, 67 A.3d 316,
cert. denied, 310 Conn. 917, 76 A.3d 632 (2013).
2
The respondent also argued that, to the extent the petition raised an
ineffective assistance of counsel claim, that claim had been raised and
resolved in the prior habeas proceeding. Saunders v. Commissioner of
Correction, supra, 194 Conn. App. 479 n.5. ‘‘The modern trend, which is
followed in Connecticut, is to construe pleadings broadly and realistically,
rather than narrowly and technically. . . . [T]he [petition] must be read in
its entirety in such a way as to give effect to the pleading with reference
to the general theory upon which it proceeded, and do substantial justice
between the parties. . . . As long as the pleadings provide sufficient notice
of the facts claimed and the issues to be tried and do not surprise or prejudice
the opposing party, we will not conclude that the [petition] is insufficient
to allow recovery.’’ (Footnote omitted; internal quotation marks omitted.)
Carpenter v. Commissioner of Correction, 274 Conn. 834, 842, 878 A.2d
1088 (2005). Although the petition does allege that defense counsel failed
to request a competency evaluation, the petitioner specifically disclaimed
that he was raising an ineffective assistance of counsel claim. The habeas
court agreed, concluding that a ‘‘fair and liberal reading of the . . . petition
supports the conclusion that the petitioner is alleging only a due process
violation, and that he is not alleging ineffective assistance of counsel in
violation of the petitioner’s rights under the sixth amendment [to] the United
States constitution. Nor is the petitioner alleging ineffective assistance of
appellate counsel on direct appeal [or] ineffective assistance by prior habeas
counsel.’’ The petitioner also disclaimed that he was raising an ineffective
assistance of counsel claim on appeal to the Appellate Court; see Saunders
v. Commissioner of Correction, supra, 483 n.12; and at oral argument before
this court. The respondent does not press this issue before this court. Thus,
consistent with these prior proceedings and the limited issues we have
certified for appeal, we do not revisit this issue.
3
We express concern that, during the habeas proceedings, the petitioner’s
counsel indicated that the petitioner’s mother was in the courtroom and
represented that she is the petitioner’s ‘‘legal protector . . . I should say,
legal guardian. And she has signed, a while ago, a release to me that she
wanted—she agreed that I should pursue his habeas [case], Your Honor.’’
When the respondent’s counsel expressed concern about whether there
would be any effective waiver of attorney-client confidentiality because ‘‘I
have trial counsel I would like to call as a witness, and there really is no
ineffective assistance of counsel claim,’’ the petitioner’s counsel indicated
that, if the respondent was considering calling the petitioner’s criminal trial
counsel as a witness, ‘‘I have no objection to Attorney [Alan D.] McWhirter
testifying about the trial.’’ (Emphasis added.) It is not clear from the record
before us that habeas counsel could unilaterally waive the petitioner’s attor-
ney-client privilege if habeas counsel had determined it was necessary to
have someone other than the petitioner approve the filing of the petition
on his behalf due to the petitioner’s alleged incompetency and inability to
be restored to competence. Habeas counsel should consult rule 1.14 of the
Rules of Professional Conduct on remand.
4
Practice Book § 23-29 provides that a habeas court may dismiss a petition
if it determines that ‘‘(1) the court lacks jurisdiction; (2) the petition, or a
count thereof, fails to state a claim upon which habeas corpus relief can
be granted; (3) the petition presents the same ground as a prior petition
previously denied and fails to state new facts or to proffer new evidence
not reasonably available at the time of the prior petition; (4) the claims
asserted in the petition are moot or premature; (5) any other legally sufficient
ground for dismissal of the petition exists.’’
5
Salamon claims are habeas claims seeking to vacate a kidnapping
conviction pursuant to this court’s decision in State v. Salamon, supra, 287
Conn. 509, in which we overruled our long-standing interpretation of our
kidnapping statutes. See id., 542; see also Hinds v. Commissioner of Correc-
tion, supra, 321 Conn. 68–69.
6
These finality interests included ‘‘(1) the fact that law enforcement relied
on the old interpretation of the kidnapping statutes while trying the peti-
tioner; (2) the fact that the retroactive application of Salamon has no deter-
rent value or remedial purpose; (3) the fear that our courts will be flooded
with habeas petitions from other inmates convicted under [General Statutes]
§ 53a-92 (a) (2) (A); (4) the difficulty of retrying such cases where significant
time has elapsed since conviction; and [5] perhaps most [important] . . .
the concern that victims will be retraumatized by again having to testify and
endure another round of judicial proceedings.’’ (Internal quotation marks
omitted.) Hinds v. Commissioner of Correction, supra, 321 Conn. 73.
7
‘‘A procedural competency claim is based [on] a trial court’s alleged
failure to hold a competency hearing, or an adequate competency hearing,
[whereas] a substantive competency claim is founded on the allegation that
an individual was tried and convicted while, in fact, incompetent.’’ (Internal
quotation marks omitted.) Saunders v. Commissioner of Correction, supra,
194 Conn. App. 489 n.14, quoting Lay v. Royal, 860 F.3d 1307, 1314 (10th
Cir. 2017), cert. denied, U.S. , 138 S. Ct. 1553, 200 L. Ed. 2d 752 (2018).
8
The petitioner also contends that our decision in State v. Gore, 288 Conn.
770, 777–78, 955 A.2d 1 (2008), should lead us to conclude that we have
adopted a ‘‘nonforfeiture doctrine with respect to fundamental constitutional
rights.’’ We are not persuaded. Gore is a waiver case, and, therefore, the
petitioner’s argument falters on the same analytical defect in Silverstein.
See State v. Gore, supra, 776–77 (‘‘[o]ur task, therefore, is to determine
whether the totality of the record furnishes sufficient assurance of a constitu-
tionally valid waiver of the right to a jury trial’’). We agree that an incompetent
defendant cannot, at the time of trial, knowingly, intelligently, and voluntarily
waive the right not to be tried while incompetent in violation of the wisdom
of Pate v. Robinson, supra, 383 U.S. 384. However, our case law regarding
procedural default is consistent with a forfeiture regime, not waiver. In fact,
we previously have held that a petitioner can procedurally default the right
to a jury trial, the constitutional claim advanced in Gore. See Duperry v.
Solnit, 261 Conn. 309, 330–33, 803 A.2d 287 (2002).
9
In particular, the petitioner argues that his allegation of incompetency
sufficiently established cause because the trial court’s failure to conduct a
competency hearing during his underlying criminal trial was external to the
defense. Because we hold that the petitioner’s claim of incompetency in
general is external to him, we do not address this specific argument.
10
The respondent argues that the petitioner’s reply was deficient because
he failed to plead a legally sufficient cause to rebut the defense of procedural
default. The respondent relies on Anderson v. Commissioner of Correction,
114 Conn. App. 778, 788–89, 971 A.2d 766, cert. denied, 293 Conn. 915, 979
A.2d 488 (2009), in which the Appellate Court held that the habeas court
properly dismissed in part a habeas petition because the petitioner’s reply
‘‘fail[ed] to allege any facts or [to] assert any cause and resulting prejudice
to permit review of his claims’’ to rebut the affirmative defense of procedural
default. Id., 788. In the present case, the habeas court and the Appellate
Court concluded that the petition and the reply were deficient because an
allegation of incompetency was not legally sufficient to establish cause. See
Saunders v. Commissioner of Correction, supra, 194 Conn. App. 498–99.
Because we hold that incompetency may constitute legally sufficient cause,
we find the respondent’s argument unavailing. Both the petitioner’s petition
and his reply specifically allege that he suffers from ‘‘severe [i]ntellectual
and [a]daptive disabilities’’ and ‘‘significant physiological and mental health
afflictions’’ that prevented him from comprehending the nature of the legal
proceedings against him and from assisting in his defense. Thus, the plead-
ings satisfy Practice Book § 23-31 (c).
11
We also are unpersuaded that the same alleged incompetency that would
have exempted the petitioner from standing trial in 2006 is also ‘‘fairly
attributable’’ to the petitioner so that, if proven as alleged, it would not
serve as cause to excuse procedural default. Such circuitous logic defies
common sense and our constitutional, statutory, and jurisprudential protec-
tions against convicting an incompetent defendant. See State v. Johnson,
253 Conn. 1, 20, 751 A.2d 298 (2000) (‘‘Connecticut jealously guards’’ right
of accused persons who are not legally competent to stand trial to not
be convicted); see also General Statutes § 54-56d (a) (providing that ‘‘[a]
defendant shall not be tried, convicted or sentenced while the defendant is
not competent’’); Drope v. Missouri, supra, 420 U.S. 171–72 (‘‘it suffices to
note that the prohibition [on trying a mentally incompetent defendant] is
fundamental to an adversary system of justice’’). To keep a petitioner incar-
cerated because of a procedural bar, if the claim that the petitioner was
incompetent to have stood trial is correct, would be repugnant to these ide-
als.
12
We emphasize that we hold only that the petitioner’s allegations of
incompetency suffice to survive a motion to dismiss. On remand, to excuse
his procedural default, the petitioner must still satisfy (1) the cause require-
ment of the cause and prejudice standard by establishing that he was incom-
petent at the time of his underlying criminal trial or direct appeal, and that
his incompetency interfered with his ability to appreciate his position and
make rational decisions regarding his case at the time during which he
should have pursued relief, and (2) the prejudice requirement by showing
that there is a reasonable probability that, had the issue been raised, the trial
court would have found him incompetent and not restorable to competency.
13
Indeed, there is the risk that the petitioner’s incompetency prevented
him from relating his incompetency to his attorneys. Incompetence, in that
instance, may have impeded ‘‘[defense] counsel’s efforts to comply with
the [s]tate’s procedural rule’’ requiring that counsel request a competency
examination and, therefore, constitutes an external cause to excuse proce-
dural default. Murray v. Carrier, supra, 477 U.S. 488. A defendant represent-
ing himself at trial may also have no avenue to vindicate his due process
rights against being tried while incompetent if his incompetency caused his
procedural default. These examples highlight why an ineffective assistance
of counsel claim does not necessarily need to accompany a due process
competency claim. See McCarthy v. Commissioner of Correction, supra,
192 Conn. App. 811 (determining that petitioner’s due process claim that
his guilty plea was involuntary because of his misunderstanding of state’s
evidence, while related to petitioner’s claim of ineffective assistance of
counsel, is ‘‘a separate, freestanding due process claim subject to proce-
dural default’’).
14
Other courts have held, in the context of counsel’s failure to raise the
issue of competency, that a petitioner must show that ‘‘there is a reasonable
probability that the trial court would have found [the petitioner] incompetent
had the issue been raised.’’ Blakeney v. United States, 77 A.3d 328, 348 (D.C.
2013), cert. denied, 574 U.S. 1013, 135 S. Ct. 689, 190 L. Ed. 2d 392 (2014);
see id., 348 n.65 (citing cases). Similarly, our Appellate Court has concluded
that a petitioner failed to show prejudice to excuse procedural default for
counsel’s failure to request additional competency evaluations because the
petitioner failed to present credible evidence that he was not competent
throughout his criminal trial. See Andrades v. Commissioner of Correction,
108 Conn. App. 509, 520, 948 A.2d 365, cert. denied, 289 Conn. 906, 957 A.2d
868 (2008).
15
To excuse a defendant from standing trial, the trial court is required to
find both that the defendant is incompetent and not restorable to compe-
tency. See General Statutes § 54-56d (f) (‘‘[i]f the court finds that the defen-
dant is not competent, the court shall also find whether there is a substantial
probability that the defendant, if provided with a course of treatment, will
regain competency within the maximum period of any placement order
permitted under this section’’). Because the prejudice prong of the cause
and prejudice standard requires the petitioner to show that the trial court
would have found him incompetent had the issue been raised at trial or on
direct appeal, this inquiry must necessarily include the additional showing
that the petitioner was not restorable to competency at the time of trial.