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THIERSAINT v. COMMISSIONER OF CORRECTION—SECOND DISSENT

EVELEIGH, J., with whom McDONALD, J., joins, dissenting. Irespectfully dissent. I disagree with the majority’s conclusion that Padilla v. Kentucky, 559 U.S. 356,

130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), 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 ineffective assistance of counsel under Strickland v. Washington, 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 determine 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 governing 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 underthe sixth amendment is a mixed determination 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 critical 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 assistance of counsel.’’(Citations omitted; internal quotation

marks omitted.) Gonzalez v. Commissioner of Correction, 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 connection to the criminal process, uniquely difficult to classify

as either a direct or a collateral consequence. The collateral versus direct distinction is thus ill suited to evaluating a Strickland claim concerning the specific risk of
deportation. We conclude that advice regarding deportation 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 Strickland 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 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 controlled substances convictions except for the most trivial of marijuana possession offenses. Instead, [the petitioner’s]

counsel provided him false assurance that his conviction 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 deportation 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 consequences 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 straightforward . . . a criminal defense attorney need do no

more than advise a noncitizen client that pending criminal 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

SupremeCourt considered whetherthe 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 ‘‘retroactively, 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 procedure identified after the conviction became final. Id.,
299. Thus, where a ‘‘ ‘new rule’ ’’ is announced, ‘‘a person 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 reasoned 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 controls 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 convictions—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 Correction, 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 Luurtsema 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 Danforth, 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 therefore 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 procedural 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 examination 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 Courtrefused 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 application, 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 retroactivity for cases on collateralreview 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 retroactivity. 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 constitutional 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 prosecutions 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 recognized 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 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.) Id., 307.

The court in Teague concluded that ‘‘we now adopt
Justice Harlan’s view ofretroactivity for cases on collateral 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 recognized that the second exception was to allow the retroactive 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 undermine 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 deciding state habeas claims, I find it instructive that the

majority of those decisions were prior to Danforth,

which made clearthat states were notrequired 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. Colwell 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 defining 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 whetherit falls within the two exceptions to nonretroactivity (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 orto 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 constitutionally 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 concern 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 retroactive 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]onstitution, 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 exception in Teague, ‘‘if accuracy is seriously diminished

without the rule, the rule is significant enough to warrant 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 fairness of a trial or plea is seriously diminished without

the rule, the rule is significant enough to warrant retroactive application. See Teague v. Lane, supra, 489 U.S.

312–13 (‘‘procedure at issue must implicate the fundamental 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 deportation arising from a guilty plea. I answer that question

in the affirmative.

Before addressing whether we should give retroactive 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 prohibiting 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 . . . counsel . . . .’’ (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 Connecticut 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 amendment 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 initiation 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 [forthe suspect] with accurate 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 constitution and we have repeatedly held that the state constitution 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 proceeding.

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 sentence, he would not be released but would be turned

overto 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 professional 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 defendant 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 defendant 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 criminal 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 immigration law trigger greater responsibility for criminal

defense attorneys to ensure their clients know, when

accepting a plea deal, that they may be accepting deportation. 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 defendant with an opportunity to discuss the immigration

consequences of the plea with ‘‘the defendant’s attorney’’ 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 opportunity to consult with an attorney regarding the immigration 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 consequences of a plea. The prevailing norm, namely that

criminal attorneys should accurately discuss immigration 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 immigration consequences of their pleas. As recognized in Padilla ‘‘[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 quotation 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 Noncitizen Criminal Defendants in Connecticut,’’ was available to criminal defense attorneys. The manual outlined

the key potential pitfalls in representing noncitizen clients and provided a guide to common Connecticut criminal statutes and the immigration consequences of a

conviction under those statutes. Indeed, the habeas

court found that the petitioner’s counsel had participated in seminars on representing noncitizen defendants and received the manual. The manual, which was

updated in 2007 and again in 2010, also explored strategies for negotiating pleas that would avoid severe and

disproportionate consequences for noncitizen clients.

See J. Baron, ‘‘A Brief Guide to Representing Non-citizen Criminal Defendants in Connecticut,’’ (2010), available at http://ctpublicdefendertraining.com/materials/

immigration/CT_Crim_Imm_Guide2010.pdf (last visited March 26, 2015).5

As the foregoing demonstrates, the statutory framework 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 immigration 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 application of Padilla in this state’s habeas proceedings. Certainly, 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 fundamental 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 history of affording greater protections than the federal
constitution regarding the right to counsel, I would conclude 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’’ underfederal 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 controlled substances convictions except for the most trivial of marijuana possession offenses. . . . The

consequences of [the petitioner’s] plea could easily be

determined from reading the removal statute, his deportation 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 consequences. 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 trafficking crime which [the] petitioner’s counsel could have

‘easily determined’ from reading the statutes would

result in presumptive mandatory deportation and ineligible to seek discretionary relief. Therefore, under Padilla, [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 petitioner 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 immigration 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 prevail 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 performance 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 Correction, 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 demonstrates 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 conclusory. Furthermore, none of the Connecticut cases cited by the majority

analyzed the claim in light of Connecticut’s unique constitutional and statutory 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. Moreover, 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 fundamentally fair and conducted under those procedures essential to the substance

of a full hearing. However, in some situations it might be that time and
growth in social capacity, as well as judicial perceptions of what we can

rightly demand of the adjudicatory process, will properly alter our understanding 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 awareness 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 information 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 determination—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 ‘‘fundamental 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 criticism 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 forineffective 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 judicial 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 immigration 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 general guidelines existed which counseled defense attorneys on how to competently 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 forthe 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 ofthe 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.