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THIERSAINT v. COMMISSIONER OF CORRECTION—FIRST DISSENT

PALMER, J., dissenting. I disagree with the majority’s

conclusion that Padilla v. Kentucky, 559 U.S. 356, 130

S. Ct. 1473, 176 L. Ed. 2d 284 (2010), which held that

the failure of defense counsel to advise a noncitizen

clientregarding the immigration consequences of pleading guilty establishes the performance prong of a claim

of ineffective assistance of counsel under the sixth

amendment, announced a new procedural rule within

the meaning of Teague v. Lane, 489 U.S. 28, 109 S. Ct.

1060, 103 L. Ed. 2d 334 (1989), and therefore does not

apply retroactively in habeas proceedings. Although I

agree that we should continue to apply the Teague

framework in determining whether a decision that recognizes a constitutional rule of criminal procedure

should be applied retroactively in habeas proceedings,

I would conclude that Padilla did not announce a new

rule because it was merely an application of the well

established standard governing ineffective assistance

of counsel claims under Strickland v. Washington, 466

U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984),

and because, under Connecticut law, the obligations of

counsel for the petitioner, Emmanuel Thiersant, were

consistent with the court’s holding in Padilla. I conclude, therefore, that the habeas court in the present

case properly determined that the petitioner was

deprived of his right to the effective assistance of counsel. Accordingly, I respectfully dissent.1

The relevant facts and procedural history, which are

not disputed, may be summarized briefly as follows.

The petitioner is a native of Haiti who moved to the

United States in 1994, when he was fourteen years old.

Shortly after his arrival, he was critically injured in a

motor vehicle accident, and required the amputation of

his right leg above the knee. Following the accident,

the petitioner was hospitalized for eight months, and

was administered a variety of drugs for his injuries.

After leaving the hospital, he developed an addiction

to crack cocaine. In 2006, the petitioner was arrested

and charged with various narcotics offenses after making two $20 sales of crack cocaine to an undercover

police officer. The petitioner was represented by Attorney John Imhoff. In 2007, the petitioner pleaded guilty

to possession of cocaine with intent to sell in violation

of General Statutes § 21a-277 (a), and, based on his

conviction for that offense, he was subsequently

ordered removed from the United States. Thereafter,

the petitioner commenced the present habeas action,

alleging that Imhoff had failed to advise him of the

immigration consequences of his guilty plea in violation

of Padilla v. Kentucky, supra, 559 U.S. 374. The habeas

court determined that Padilla, which was decided after

the petitioner’s conviction became final, applied retroactively to the petitioner’s claim.
On the merits of the petitioner’s claim, the habeas

court agreed with the petitioner that he had been

deprived of the effective assistance of counsel. The

court first determined that Imhoff had performed deficiently because his representation fell below ‘‘an objective standard of reasonableness.’’ Strickland v.

Washington, supra, 466 U.S. 688. In support of this

conclusion, the habeas court found that Imhoff had

failed to advise the petitioner that his conviction under

§ 21a-277 (a) would constitute an aggravated felony for

immigration law purposes and that, as a result of that

conviction, he would be subject to mandatory detention

by the United States Immigration and Customs Enforcement Agency upon the completion of his sentence. In

addition, the court found that Imhoff had failed to

advise the petitioner that his conviction would render

him ineligible for almost all defenses to removal, virtually assuring that he would be ordered removed from

the United States and permanently barred from

returning. According to the habeas court, those adverse

immigration consequences of a conviction under § 21a277 (a) were sufficiently clear and definite that Imhoff

had a duty to advise the petitioner about those consequences prior to his plea. The court further concluded

that, at the time Imhoff represented the petitioner, a

reasonably competent defense attorney would have

provided such advice. Instead, Imhoff ‘‘gave the petitioner differing, unspecific and incorrect advice, all of

which left room for the petitioner to believe that he

could contest his removal,’’ and advised the petitioner

to consult an immigration attorney for more specific

advice. The court also concluded that reasonably competent counsel would have raised the petitioner’s immigration status during plea negotiations in an effort to

obtain an alternative disposition that would not have

resulted in a conviction of an aggravated felony, and

Imhoff had failed to do so.

In addition, the habeas court found that the petitioner

was prejudiced by Imhoff’s deficient performance

because, had the petitioner known that his conviction

would subject him to near certain and permanent

removal from the United States, he would have insisted

on going to trial rather than pleading guilty. The habeas

court found that this would have been a rational decision based in large part on the conditions the petitioner

would face in Haiti upon his return to that country, as

well as the petitioner’s strong ties to the United States.

The petitioner has been a lawful permanent resident of

the United States for almost twenty years and currently

lives with his longtime girlfriend, who suffers from seizures and often requires his assistance, and their young

daughter. As a result of the injuries he suffered in the

motor vehicle accident, the petitioner requires the use

of either a prosthesis or a wheelchair. The habeas court

credited evidence presented by the petitioner regarding

the inhumane conditions in Haiti for criminal deportees,
especially those who are disabled. Upon return to Haiti

as a criminal deportee, the petitioner would be subject

to indefinite detention in a cell measuring ten feet by

ten feet, containing twenty to sixty other detainees,

where temperatures reach 100 degrees and rodents,

insects, and disease are rampant. Detainees do not have

access to bathroom facilities or medical care, and many

detainees become seriously ill or die due to the extreme

conditions. Detainees also mustrely on family members

or fellow detainees for food and water because it is not

provided by the government. Because the petitioner has

no family in Haiti, he would have to rely on his fellow

detainees or go without nourishment. Even if he were

released from detention, the petitionerlikely would face

discrimination and harassment from Haitian citizens

because of his disability and his status as a criminal

deportee. As the habeas court observed, in light of these

extraordinary circumstances, the petitioner’s decision

to forgo the plea offer and proceed to trial would have

been a reasonable one regardless of the strength of the

state’s case against him because ‘‘he would have had

nothing to lose’’ by taking his chances at trial. The

habeas court therefore granted the petitioner’s petition

for a writ of habeas corpus and ordered the petitioner’s

conviction vacated so that he could stand trial on the

charges. The respondent, the Commissioner of Correction, appealed, claiming that the habeas court had

improperly concluded that Padilla applied retroactively

to the petitioner’s claim.

I

As the majority has explained, claims of ineffective

assistance of counsel at the plea stage are governed by

the standard set forth in Strickland v. Washington,

supra, 466 U.S. 687–91, and Hill v. Lockhart, 474 U.S.

52, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985). Under Strickland and Hill, a habeas petitioner must prove that

‘‘counsel’s representation fell below an objective standard of reasonableness . . . [and] that there is a reasonable probability that, but for counsel’s errors, [the

petitioner] would not have pleaded guilty and would

have insisted on going to trial.’’2

(Citations omitted;

internal quotation marks omitted.) Johnson v. Commissioner of Correction, 285 Conn. 556, 575–76, 941 A.2d

248 (2008). In Padilla v. Kentucky, supra, 559 U.S. 374,

the United States Supreme Court concluded that advice

regarding the immigration consequences of a guilty plea

is not categorically removed from the sixth amendment’s protections, and that a criminal defense attorney

may render constitutionally ineffective assistance by

failing to advise a noncitizen client about such consequences. Subsequently, in Chaidez v. United States,

U.S. , 133 S. Ct. 1103, 185 L. Ed. 2d 149 (2013), the

court concluded that Padilla does not apply retroactively in federal habeas proceedings, so that a noncitizen whose conviction became final before the decision

in Padilla was announced is not entitled to relief in
federal habeas court. In reaching its conclusion, the

court applied the retroactivity framework it previously

had set forth in Teague v. Lane, supra, 489 U.S. 288.

As the court explained, under Teague, when a decision

announces a ‘‘new rule, a person whose conviction is

already final may not benefit from the decision in a

[federal] habeas or similar proceeding. Only when we

apply a settled rule may a person avail herself of the

decision on collateral review.’’3

(Footnote omitted;

internal quotation marks omitted.) Chaidez v. United

States, supra, 1107. The court concluded that Padilla

announced a new rule and, consequently, declined to

give it retroactive effect. Id., 1113.

Of course, if we were bound to follow Chaidez, the

respondent in the present case would be entitled to

prevail on his appeal because, under Chaidez, Padilla

does not apply retroactively. As the United States

Supreme Court made clear in Danforth v. Minnesota,

552 U.S. 264, 128 S. Ct. 1029, 169 L. Ed. 2d 859 (2008),

however, Teague applies only to federal habeas review,

and states are therefore free to give broader retroactive

effect to a constitutional rule as a matter of state law.

In Danforth, the court explained that Teague’s ‘‘general

rule of nonretroactivity [was justified] in part by reference to comity and respect for the finality of state

convictions,’’ and that ‘‘[f]ederalism and comity considerations are unique to federal habeas review of state

convictions. . . . If anything, considerations of comity

militate in favor of allowing state courts to grant habeas

relief to a broader class of individuals than is required

by Teague. And while finality is, of course, implicated

in the context of state as well as federal habeas, finality

of state convictions is a state interest, not a federal

one. It is a matterthat [s]tates should be free to evaluate,

and weigh the importance of, when prisoners held in

state custody are seeking a remedy for a violation of

federal rights by their lower courts.’’ (Citation omitted;

emphasis in original.) Id., 279–80.

Accordingly, in determining whether to give retroactive effect to Padilla, we need not follow Teague, and

may adopt our own retroactivity test for purposes of

state law. As the majority observes, however, we previously have adopted the Teague framework,4 and I

agree generally that we should continue to adhere to

that framework when determining whether a decision

applies retroactively to cases that otherwise have proceeded to final judgment. The Teague framework has

significant advantages, in that it gives proper weight to

the state’s important interest in ensuring the finality of

convictions, is relatively straightforward to apply, and

leads to consistent results.

As the United States Supreme Court itself has

expressly recognized, however, ‘‘[a] decision . . . that

a new rule does not apply retroactively under Teague

does not imply that there was no right and thus no
violation of that right at the time of trial—only that no

remedy will be provided in federal habeas courts.’’ Id.,

291. Accordingly, when we determine whether to give

a decision retroactive effect, we are not determining

whether the constitutional right in question existed at

the time of the alleged violation, but only whether to

afford a remedy for a violation of that right. It necessarily follows, then, that when we decide not to give a rule

retroactive effect, we are deciding that an undetermined

number of constitutional violations will stand uncorrected. This fact militates in favor of a more flexible

or liberal application of the Teague framework when,

as here, considerations of federalism and comity do not

come into play.

Furthermore, critics of the Teague framework have

pointed out that the United States Supreme Court has

given an exceedingly broad interpretation to the definition of a new rule, thereby restricting significantly the

availability of remedies for constitutional violations. As

first articulated in Teague, a decision was deemed to

announce a new rule if the result was not ‘‘dictated by

precedent’’ existing at the time the defendant’s conviction became final. (Emphasis omitted.) Teague v. Lane,

supra, 489 U.S. 301. Subsequently, the Supreme Court

‘‘has greatly expanded the meaning of what is ‘new’ to

include results not ‘apparent to all reasonable jurists’

at the time.’’ Commonwealth v. Sylvain, 466 Mass. 422,

433, 995 N.E.2d 760 (2013), quoting Lambrix v. Singletary, 520 U.S. 518, 527–28, 117 S. Ct. 1517, 137 L. Ed.

2d 771 (1997). Consequently, a decision is considered

new for purposes of Teague ‘‘even when it is controlled

or governed by prior law and is the most reasonable

interpretation of that law, unless no otherinterpretation

is reasonable.’’ Rhoades v. State, 149 Idaho 130, 138,

233 P.3d 61 (2010), cert. denied, U.S. , 131 S.

Ct. 1571, 179 L. Ed. 2d 477 (2011), citing Butler v. McKellar, 494 U.S. 407, 415, 110 S. Ct. 1212, 108 L. Ed. 2d 347

(1990). Because this standard is so broad, ‘‘decisions

defining a constitutional safeguard rarely merit application on collateral review.’’ Colwell v. State, 118 Nev.

807, 818, 59 P.3d 463 (2002), cert. denied, 540 U.S. 981,

124 S. Ct. 462, 157 L. Ed. 2d 370 (2003). Although the

United States Supreme Court has deemed this approach

to be appropriate in the context of determining whether

to apply a rule retroactively on federal habeas review

of state convictions, the same federalism and comity

concerns are not implicated when a state determines

whetherto apply the rule for purposes of its own habeas

proceedings. In fact, with respect to the state’s significant interest in finality, because state collateral review

generally takes place sooner than federal collateral

review, the adverse effect on that interest is less pronounced in the former context than it is in the latter.5

Thus, a number of states have recognized that the

restrictive approach to retroactivity mandated by

Teague and its progeny provides insufficient protection
for criminal defendants seeking to vindicate constitutional rights in state habeas proceedings; see, e.g.,

Rhoades v. State, supra, 138–39; Commonwealth v. Sylvain, supra, 433–35; Colwell v. State, supra, 818–20; an

observation with which I agree. I therefore believe that

the decision of whether ‘‘to give retroactive effect to a

rule of law [underthe Teague framework] 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.’’ (Internal

quotation marks omitted.) Rhoades v. State, supra, 139.

Applying the Teague framework to the present case,

and with the foregoing considerations in mind, I would

conclude that Padilla did not announce a new constitutional rule. In reaching this conclusion, I agree with

Justice Sotomayor’s dissent in Chaidez, in which she

explains that Padilla did not announce a new rule under

Teague because it was merely an application of the rule

set forth in Strickland. Chaidez v. United States, supra,

133 S. Ct. 1114. Furthermore, Connecticut case law and

practice at the time Padilla was decided support rather

than foreclose this conclusion and, contrary to the concern expressed by the majority, applying Padilla retroactively would not open the floodgates to petitioners

seeking relief for alleged violations of Padilla.

As the majority opinion explains, the courtin Chaidez

acknowledged that, ‘‘[w]here the beginning point of our

analysis is a rule of general application, a rule designed

forthe specific purpose of evaluating a myriad of factual

contexts, it will be the infrequent case that yields a

result so novel that it forges a new rule, one not dictated

by precedent.’’ (Internal quotation marks omitted.) Id.,

1107. The court further acknowledged that, because

Strickland itself is a rule of general application, ‘‘garden-variety applications of the test in Strickland . . .

for assessing claims of ineffective assistance of counsel

do not produce new rules.’’ Id. According to the court,

however, ‘‘Padilla did something more’’ than merely

apply Strickland to a new factual context. Id., 1108.

Specifically, the court explained, ‘‘[b]efore deciding if

failing to provide [advice regarding immigration consequences] fell below an objective standard ofreasonableness, Padilla considered a threshold question: Was

advice about deportation categorically removed from

the scope of the [s]ixth [a]mendment right to counsel

because it involved only a collateral consequence of a

conviction, rather than a component of the criminal

sentence?’’ (Internal quotation marks omitted.) Id. As

the court further explained, it had never decided

whether the sixth amendment requires attorneys to

advise their clients regarding the collateral consequences of a conviction, and state and lower federal

courts had been nearly unanimous in concluding that

it does not. Id., 1108–1109. According to the court, this

meant that its decision in Padilla was not ‘‘ ‘dictated’ ’’

by precedent, and, therefore, that it announced a new
rule. (Emphasis omitted.) Id., 1110.

In dissent, Justice Sotomayor, joined by Justice Ginsburg, argued that Padilla did not announce a new rule

because it merely applied ‘‘the existing rule of Strickland . . . in a new setting, the same way the [c]ourt has

done repeatedly in the past: by surveying the relevant

professional norms and concluding that they unequivocally required attorneys to provide advice about the

immigration consequences of a guilty plea.’’ Id., 1114.

Although, as I have indicated, the United States

Supreme Court has taken a broad view of what constitutes a new rule, it has also stated that ‘‘a case does

not announce a new rule [when]it[is] merely an application of the principle that governed a prior decision to

a different set of facts.’’ (Emphasis in original; internal

quotation marks omitted.) Id., 1107, quoting in part

Teague v. Lane, supra, 489 U.S. 307. Thus, whether a

rule is new ‘‘depends in large part on the nature of the

rule. If the rule in question is one which of necessity

requires a case-by-case examination of the evidence,

then we can tolerate a number of specific applications

without saying that those applications themselves create a new rule.’’ Wright v. West, 505 U.S. 277, 308, 112

S.Ct. 2482, 120 L.Ed. 2d 225 (1992)(Kennedy, J., concurring). In other words, ‘‘when all [the court does] is apply

a general standard to the kind of factual circumstances

it was meant to address, [it] will rarely state a new

rule for Teague purposes.’’ Chaidez v. United States,

supra, 1107.

Padilla was the quintessential application of a general standard to a different set of facts. As Justice Sotomayor explained in her dissent, the standard for

determining deficient performance under Strickland is

‘‘simply reasonableness under prevailing professional

norms . . . [which] takes its content from the standards by which lawyers judge their professional obligations . . . and those standards are subject to change.’’

(Citations omitted; internal quotation marks omitted.)

Id., 1114. Put another way, the evolving nature of professional norms means that representation that satisfies

the sixth amendment one year may not do so the next,

but this does not mean that the sixth amendment standard itself changes. Rather, although the Strickland

reasonableness standard is pegged to a benchmark that

evolves over time, the rule remains the same. ‘‘That is

why, despite the many different settings in which it

has been applied, [the court had] never found that an

application of Strickland resulted in a new rule.’’ Id.,

1114–15 (Sotomayor, J., dissenting).

In Padilla, the court merely applied the standard set

forth in Strickland and concluded that, at the time of the

petitioner’s conviction, prevailing professional norms

required attorneys to advise their clients of the immigration consequences of pleading guilty, depending on the

severity and certainty of those consequences. Padilla
v. Kentucky, supra, 559 U.S. 366–69. The court first

surveyed the radical changes in immigration law from

the early 1900s—when Congress first authorized

removal of noncitizens convicted of certain crimes, but

also gave state and federal judges the power to make

binding recommendations at sentencing to prevent

removal—through the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996, 8 U.S.C. § 1101

et seq., which made removal ‘‘practically inevitable’’ for

noncitizens who commit an eligible offense. See id.,

360–64; see also Chaidez v. United States, supra, 133

S. Ct. 1116 (Sotomayor, J., dissenting). The court then

explained that professional norms had evolved to

respond to these changes in immigration law, such that

‘‘[a]uthorities of every stripe—including the American

Bar Association, criminal defense and public defender

organizations, authoritative treatises, and state and city

bar publications—universally require defense attorneys

to advise as to the risk of deportation consequences for

non-citizen clients.’’(Internal quotation marks omitted.)

Chaidez v. United States, supra, 1116 (Sotomayor, J.,

dissenting), quoting Padilla v. Kentucky, supra, 367.

Thus, when the court in Padilla recognized a shift in

defense counsel’s obligations under the sixth amendment, it was because prevailing professional norms had

evolved in response to changes in immigration law, not

because the court viewed the sixth amendment in a

substantively different way. In other words, ‘‘[b]oth

before Padilla and after, counsel was obligated to follow the relevant professional norms. It was only

because those norms reflected changes in immigration

law that Padilla reached the result it did, not because

the [s]ixth [a]mendment right had changed at all.’’

Chaidez v. United States, supra, 1117 (Sotomayor, J.,

dissenting).

Like the court in Chaidez, the majority in the present

case relies heavily on the characterization of Padilla

as having answered a ‘‘threshold’’ question about the

scope of the sixth amendment. I believe that this view

of Padilla fails to account for the fact that the court

in Padilla answered that question simply by applying

the Strickland standard to the facts of the case. As

Justice Sotomayor explained in her dissent in Chaidez,

the court in Padilla expressly declined to address the

distinction between direct and collateral consequences

because ‘‘deportation has a ‘close connection to the

criminal process,’ and is ‘uniquely difficult to classify

as either a direct or a collateral consequence.’ ’’ Id.,

1117, quoting Padilla v. Kentucky, supra, 559 U.S. 366.

Prior to Padilla, the court had never decided whether

counsel’s duty to provide advice concerning the collateral consequences of a conviction is within the scope

of the sixth amendment, and it still has not done so

because Padilla expressly refused to address that question. Because the court concluded that immigration

consequences are not collateral, the court ultimately
could decide that the sixth amendment does not require

attorneys to advise their clients regarding the collateral

consequences of a conviction without disturbing the

holding of Padilla. Thus, the ‘‘chink-free wall between

direct and collateral consequences’’; Chaidez v. United

States, supra, 1110; remains unbreached.

The fact that the court in Padilla first addressed

whether the sixth amendment applied to the claim

before it was due to the nature of the decision the court

was reviewing and the question for which it had granted

review, rather than the nature of the sixth amendment

inquiry. The Supreme Court of Kentucky had concluded

that deportation was a collateral consequence of a conviction that fell outside the scope of the sixth amendment and, therefore, that the appellee was not entitled

to an evidentiary hearing on his ineffective assistance

claim. Commonwealth v. Padilla, 253 S.W.3d 482,

484–85 (Ky. 2008). As Justice Sotomayor observes in

her dissent, the United States Supreme Court rejected

that conclusion simply by applying the Strickland standard. Chaidez v. United States, supra, 133 S. Ct. 1114.

Thus, although the court had to address whether immigration consequences fell outside the scope of the sixth

amendment because of the Supreme Court of Kentucky’s disposition of the case, it answered that question by applying Strickland to determine the obligations

of defense counsel under the facts of the case, just as

it would for any other ineffective assistance of counsel claim.

That the court in Padilla did not announce a new

rule is further supported by the fact that, in addressing

a claim under Padilla, a habeas court merely applies

the Strickland test as it would for any other ineffective

assistance claim. In a standard Strickland-Hill case in

which the petitioner claims that his attorney provided

ineffective assistance at the plea stage, the petitioner

must demonstrate that his attorney’s advice was objectively unreasonable, such that it ‘‘ ‘fell below an objective standard of reasonableness’ ’’; Hill v. Lockhart,

supra, 474 U.S. 57; and that, ‘‘but for counsel’s errors,

he would not have pleaded guilty and would have

insisted on going to trial.’’ Id., 59. This is exactly the

inquiry that a habeas court makes when addressing a

claim under Padilla. See Padilla v. Kentucky, supra, 559

U.S. 366–69 (explaining that performance of criminal

defense attorney when advising noncitizen client is to

be judged by Strickland reasonableness standard, and

counsel’s duty in such cases depends on, inter alia,

clarity of potential immigration consequences client

faces). As in the present case, a petitioner seeking to

prevail on a claim under Padilla must show that a

reasonably competent attorney would have advised his

clientregarding the immigration consequences of pleading guilty, and that he would not have pleaded guilty

had his attorney provided such advice. Thus, the rule

to be applied when a petitioner brings a claim under
Padilla is the rule set forth in Strickland and Hill. The

habeas court does not apply a ‘‘Padilla rule’’ because

the court in Padilla did not establish a rule—it merely

applied the rule established by Strickland and Hill.

I recognize that the majority in Chaidez relied on the

fact that, prior to Padilla, the overwhelming majority

of courts to address the question concluded that immigration consequences are collateral and therefore outside the scope of the sixth amendment.6

In Connecticut,

however, the obligations of defense counsel recognized

in Padilla were already required under state law and

prevailing professional norms at the time that decision

was issued. Contrary to the majority’s assertions, there

was no binding precedent from this court or the Appellate Court at that time holding that advice regarding

immigration consequences was outside the scope of

the sixth amendment right to the effective assistance

of counsel.7 All of the case law on which the majority

relies addresses what is required of the trial court when

canvassing a defendant to ensure that a plea is voluntary

under the fifth amendment. See State v. Malcolm, 257

Conn. 653, 662, 778 A.2d 134 (2001) (‘‘only substantial

compliance [with General Statutes § 54-1j] is required

. . . in order to ensure that the plea is voluntary’’ [footnote omitted]); State v. Andrews, 253 Conn. 497, 500,

513–14, 752 A.2d 49 (2000) (trial court’s failure to advise

regarding parole ineligibility did not render plea involuntary); State v. Irala, 68 Conn. App. 499, 520, 792 A.2d

109 (trial court’s failure to advise regarding specific

immigration consequences does not render plea involuntary), cert. denied, 260 Conn. 923, 797 A.2d 519, cert.

denied, 537 U.S. 887, 123 S. Ct. 132, 154 L. Ed. 2d 148

(2002). As the majority recognizes in declining to

address the petitioner’s alternative claim that his plea

was involuntary in violation of his right to due process,

whether a plea is voluntary underthe fifth amendmentis

a distinct issue from whether defense counsel provided

ineffective assistance under the sixth amendment.8 See

Lafler v. Cooper, U.S. , 132 S. Ct. 1376, 1390,

182 L. Ed. 2d 398 (2012) (‘‘[a]n inquiry into whether the

rejection of a plea is knowing and voluntary . . . is

not the correct means by which to address a claim of

ineffective assistance of counsel’’). Consequently, our

recognition that trial courts are not constitutionally

required to ‘‘instruct defendants on the intricacies of

immigration law’’; State v. Malcolm, supra, 663; did not,

as the majority maintains, have any bearing on defense

counsel’s obligations under the sixth amendment.

Moreover, some Connecticut cases decided prior to

Padilla may be read to suggest that the sixth amendment does require criminal defense attorneys to advise

their clients regarding immigration consequences. For

example, in State v.Irala, supra, 68 Conn. App. 500–501,

the defendant sought to withdraw her pleas, claiming,

inter alia,that hertrial counsel was ineffective forfailing

to advise her regarding the immigration consequences
of her conviction. The trial court denied her motions

and, in affirming the trial court’s judgments, the Appellate Court concluded that the defendant’s attorney had

not performed deficiently because he had discussed

the immigration consequences of the pleas with the

defendant. Id., 506, 526–27. Thus, the Appellate Court

implicitly accepted that advice regarding immigration

consequences did fall within the scope of the sixth

amendment, but concluded that counsel in that case

met those obligations. Id., 527.

At least one habeas court prior to the decision in

Padilla found that an attorney had performed deficiently by providing inaccurate advice regarding the

immigration consequences to his client of pleading

guilty. In Durant v. Coughlin, Superior Court, judicial

district of Ansonia-Milford at Milford, Docket No. CV99-066532 (July 12, 1999), the court determined that the

petitioner’s attorney performed deficiently under the

sixth amendment by erroneously advising the petitioner

that he would not be deported because he was married

to a United States citizen. The court determined, however, that the petitioner failed to prove that he was

prejudiced by counsel’s erroneous advice. See also

Dawkins v. Armstrong, Superior Court, judicial district

of New London, Docket No. CV-552015 (May 30, 2001)

(addressing petitioner’s claim on merits but concluding

that petitioner knew he would likely be deported, and,

in any event, that petitioner was not prejudiced). Thus,

the majority is incorrect that, at the time Padilla was

decided, the courts of this state held that advice regarding immigration consequences is outside the scope of

the sixth amendment.

Although our case law had not yet definitively

answered the question that the courtresolved in Padilla

regarding the scope of the sixth amendment, Connecticut law was consistent with the result in that case. As

Justice Eveleigh observes, Connecticut frequently has

been ahead of our sister states and the federal government in recognizing the right to counsel, having guaranteed that right long before it was formally incorporated

into our state constitution in 1818. In 1917, Connecticut

was the first state to establish a public defender system,

decades before the United States Supreme Court, in

Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L.

Ed. 2d 799 (1963), recognized that the federal constitution requires states to provide counsel to indigent criminal defendants. In addition to recognizing the

paramount importance of the right to counsel generally,

this court has specifically held that state law guarantees

the right to the effective assistance of counsel even

where it is not required by the federal constitution,

ensuring that Connecticut residents are not stripped of

importantrights without competentrepresentation. See

Lozada v. Warden, 223 Conn. 834, 838, 842–43, 613 A.2d

818 (1992) (recognizing right to effective assistance of

counsel in habeas proceedings); cf. State v. Anony-
mous, 179 Conn. 155, 159–60, 425 A.2d 939 (1979)(statutory right to counsel in termination of parental rights

proceeding implicitly includes right to effective assistance of counsel).

The criminal defense bar in Connecticut has long

been aware that noncitizen defendants often give great

weight to immigration consequences when deciding

whether to accept or to reject a guilty plea. As the

habeas court found, prevailing professional norms and

statutory law at the time of the petitioner’s plea required

criminal defense attorneys to advise their clients regarding the immigration consequences of pleading guilty.

The habeas court credited the testimony of the petitioner’s expert witnesses, Attorney Anthony D. Collins and

Attorney Christopher Caldwell, who both testified

regarding prevailing professional norms in Connecticut

at the time the petitioner pleaded guilty in 2007. Specifically, Collins and Caldwell both testified that a reasonably competent defense attorney representing a

noncitizen in 2007 had a duty to avoid allowing her

client to be convicted of an aggravated felony ‘‘at all

costs,’’ to explain to her client the immigration consequences of such a conviction, and to seek an alternate

disposition through plea negotiations. Moreover, as discussed by Justice Eveleigh in greater detail, training

available to criminal defense attorneys at that time provided detailed guidance on representing noncitizen

defendants in Connecticut, suggesting that the defense

bar was well aware of the need to advise such clients

regarding the immigration consequences of a conviction.

That prevailing professional norms were consistent

with the holding in Padilla is further supported by Connecticut statutory law, which has long recognized the

importance of ensuring that criminal defendants understand that pleading guilty may carry immigration consequences. The legislature enacted § 54-1j in 1982,

requiring trial court judges to advise defendants that

pleading guilty may carry the risk of deportation; see

Public Acts 1982, No. 82-177; and amended it in 2003

to require that judges provide defendants the opportunity to discuss any potential immigration consequences

with their counsel before the court may accept a guilty

plea. See Public Acts 2003, No. 03-81, § 1. The 2003

amendment is particularly persuasive proof of prevailing professional norms at the time of the petitioner’s

plea. Even if professional norms had not yet evolved

to the point that defense counsel recognized their obligation to advise their clients regarding immigration consequences prior to 2003, that amendment surely put the

defense bar on notice of that duty. Thus, although no

Connecticut case had yet recognized that the sixth

amendment required defense counsel to advise noncitizen defendants regarding the immigration consequences of a conviction, our statutory law and the actual

practices of the legal community were fully in accord
with the dictates of Padilla at least as early as 2003.

Finally, the finality concerns raised by the majority

that traditionally counsel against applying a decision

retroactively on collateral review are not implicated in

the present case because the number of noncitizens

who would be eligible for relief in Connecticut is limited, and the number who would actually be able to

obtain relief is further limited by the Strickland standard. As the petitioner has underscored, a decision to

apply Padilla retroactively in state habeas proceedings

would only lead to a new trial for those who, like the

petitioner: (1) are noncitizens; (2) have pleaded guilty

to an offense that would result in their removal; (3)

whose convictions became final before 2010; (4) have

not yet been deported; (5) were not advised that pleading guilty would subject them to removal; (6) pleaded

guilty at a time when a reasonably competent attorney

would have provided such advice; (7) would not have

pleaded guilty had they been so advised; and (8) can

prove that such a decision would have been a rational

one under the circumstances.9 These requirements will

make it exceedingly difficult for a petitioner to prevail

under Padilla on collateral review.

The Strickland standard itself also would limit the

number of petitioners entitled to relief, adequately protecting the finality of convictions and preventing a flood

of overturned convictions. In determining whether an

attorney’s performance was constitutionally deficient,

Strickland expressly instructs courts to ‘‘eliminate the

distorting effects of hindsight’’ and to ‘‘evaluate the

conduct from counsel’s perspective at the time.’’ Strickland v. Washington, supra, 466 U.S. 689. This means

that whether an attorney’s advice was constitutionally

deficient depends on whether the advice conformed to

professional norms at the time of the plea. While it is

clear that professional norms in Connecticut required

defense counsel to advise their clients about immigration consequences at the time the petitioner pleaded

guilty in 2007, the claims of noncitizens who pleaded

guilty prior to that date would be judged by the professional norms as of the date of their pleas. In addition,

under Strickland’s prejudice prong, a defendant must

prove that, if he had been advised about the risk of

deportation, ‘‘he would not have pleaded guilty and

would have insisted on going to trial’’; Hill v. Lockhart,

supra, 474 U.S. 59; and that ‘‘a decision to reject the

plea bargain would have been rational underthe circumstances.’’ Padilla v. Kentucky, supra, 559 U.S. 372. This

difficult task is especially challenging in cases alleging

a violation of Padilla because the petitioner must convince the habeas court that he would have insisted on

a trial even though he likely would face a substantially

greater sentence upon conviction, and then would still

be subject to deportation after serving that sentence.

As the court observed in Padilla, ‘‘[t]he nature of relief

secured by a successful collateral challenge to a guilty
plea—an opportunity to withdraw the plea and proceed

to trial—imposes its own significant limiting principle:

[t]hose who collaterally attack their guilty pleas lose

the benefit of the bargain obtained as a result of the

plea. Thus, a different calculus informs whether it is

wise to challenge a guilty plea in a habeas proceeding

because, ultimately, the challenge may result in a less

favorable outcome for the [petitioner] . . . .’’ (Emphasis in original.)Id., 372–73. Forthese reasons, it is highly

unlikely that applying Padilla retroactively will lead to

an appreciable number of new trials.

The refusal of the United States Supreme Court to

apply Padilla retroactively in federal habeas proceedings is understandable, given the much larger pool of

noncitizens to whom such a decision would apply and

the comity considerations necessarily implicated by any

such decision. Those concerns, however, simply do not

apply to our decision whether to apply Padilla retroactively. As discussed previously, moreover, prevailing

professional norms and statutory law in Connecticut

required defense attorneys to advise their clients

regarding immigration consequences long before the

court in Padilla formally recognized that requirement

under the sixth amendment. I would conclude, therefore, that Padilla did not announce a new rule under

Connecticut law, and that the habeas court properly

applied Padilla retroactively to the petitioner’s claim.

II

I now turn to the merits of the petitioner’s ineffective

assistance claim. In light of its findings, which are supported by the record, the habeas court properly found

that Imhoff’s performance was objectively unreasonable. The habeas court found that, at the time the petitioner pleaded guilty, a reasonably competent attorney

would have been aware that possession of narcotics

with intent to sell in violation of § 21a-277 (a) constitutes an aggravated felony. The habeas court further

found that a reasonably competent attorney in Imhoff’s

position would have advised the petitioner that, upon

conviction of an aggravated felony, he would be subject

to mandatory removal from the United States, ineligible

for virtually all defenses to removal, and permanently

barred from returning to the United States. Consistent

with Padilla, the habeas court noted that, because the

law regarding the immigration consequences of the petitioner’s conviction was ‘‘clear and succinct,’’ Imhoff

had a duty to provide the petitioner with correct advice

regarding those consequences. See Padilla v. Kentucky,

supra, 559 U.S. 368–69. The habeas court further found

thatImhoff failed to meet that standard because he ‘‘was

unaware of the specific consequences of the petitioner’s

plea in this case and as a result was unable to, and did

not, provide clear and accurate advice.’’ Rather than

correctly advising the petitioner that a conviction under

§ 21a-277 (a) would constitute an aggravated felony,
virtually assuring that he would be permanently

removed from the United States, Imhoff gave the petitioner vague advice that did not impress upon him the

grave and certain nature of the immigration consequences he faced. As the habeas court also stated,

‘‘[a]dvising the petitioner, who was indigent and incarcerated, to obtain and consult with an immigration

attorney, when he had no ability or resources to do

so,’’ fell below the standard expected of reasonably

competent counsel under the sixth amendment.

The habeas court also found that this is one of the

rare cases in which the evidence establishes that, had

the petitioner been advised about the immigration consequences of his guilty plea, he would have insisted on

going to trial, and that such a decision would have been

‘‘rational under the circumstances.’’ Padilla v. Kentucky, supra, 559 U.S. 372. The petitioner, who has been

a permanent resident of the United States for almost

twenty years, has strong family ties to this country in

general and to Connecticut in particular, and no family

connections in Haiti whatsoever. Although this may

be true of many noncitizens—and alone, likely to be

insufficient to satisfy the prejudice prong of the Strickland-Hill test—the petitioner’s case is compelling given

the extremely harsh conditions that he would face upon

his return to Haiti. As the habeas court found, criminal

deportees to Haiti are subject to ‘‘deplorable and inhumane conditions’’ that include being held in an overcrowded cell where disease is rampant and

temperatures reach 100 degrees, with no bathroom

facilities or access to medical care. As deplorable as

the conditions are in Haiti for criminal deportees generally, the petitioner likely would be treated even more

harshly because of his disability, as ‘‘disabled persons

. . . are treated as outcasts in prison and in society

generally’’ and ‘‘[a]n amputee, like the [petitioner],

would not be provided a wheelchair or prosthesis in

the holding cells, or any medical treatment or medications.’’ It is no wonder, then, that the habeas court

credited the petitioner’s testimony that ‘‘he would have

risked spending significantly more time in jail in this

country rather than be deported to Haiti.’’

Although it ordinarily is well-nigh impossible for a

petitioner to prove that it would have been objectively

reasonable to forgo a favorable plea agreement that

offers a dramatically reduced jail sentence and insist

on a trial when, as in the present case, the state had

overwhelming evidence of guilt—especially in view of

the fact that the petitioner is subject to mandatory

deportation after serving his sentence—the petitioner’s

case presents extraordinary circumstances that justify

affording him relief. I would conclude, therefore, that

the habeas court properly determined that the petitioner was deprived of his right to the effective assistance of counsel. Accordingly, I respectfully dissent.

1

I therefore agree with Justice Eveleigh’s conclusion that Padilla applies
retroactively in state habeas proceedings, and I also agree with a portion

of his analysis and reasoning. I am concerned, however, that the approach

he advocates would, in practice, lead to near universal retroactivity for all

constitutional rules, and that a new trial will be required in every such case,

no matter when the conviction was obtained. I therefore am unable to

agree that we should apply a constitutional rule retroactively whenever ‘‘the

fundamental fairness of a trial or plea is seriously diminished without the

rule . . . .’’ Although this test seems sensible in theory, the concept of

‘‘fundamental fairness’’ is so amorphous that virtually all constitutional rules

of criminal procedure pertaining to a criminal trial or plea may be said to

implicate ‘‘fundamental fairness’’ in one way or another. Insofar as the vast

majority of such rules would be subject to retroactive applicability under

Justice Eveleigh’s test, I do not believe that the test takes sufficient account

of the state’s significant interest in finality. It bears emphasis, moreover,

that new substantive rules invariably apply retroactively because they ‘‘necessarily carry a significant risk that a defendant stands convicted of an act

that the law does not make criminal or faces a punishment that the law

cannot impose upon him,’’ whereas only procedural rules are subject to the

Teague retroactivity test because ‘‘[t]hey do not produce a class of persons

convicted of conduct the law does not make criminal, but merely raise the

possibility that someone convicted with use of the invalidated procedure

might have been acquitted otherwise.’’ (Internal quotation marks omitted.)

Schriro v. Summerlin, 542 U.S. 348, 352, 124 S. Ct. 2519, 159 L. Ed. 2d 442

(2004). As I explain hereinafter, I believe that we should continue to follow

the Teague framework, including the important exceptions delineated by

the United States Supreme Court; see footnote 3 of this dissenting opinion;

because that framework gives due weight to the state’s legitimate interests

and leads to consistent results. As I further explain, however, I would

conclude that Padilla applies retroactively in habeas proceedings in this

state because it did not announce a new rule.

2 The court in Strickland set forth the general standard for establishing

an ineffective assistance of counsel claim, requiring a petitioner to prove

both that trial counsel performed deficiently and that, ‘‘but for counsel’s

unprofessional errors, the result of the proceeding would have been different.’’ Strickland v. Washington, supra, 466 U.S. 694. In Hill, the court held

that the Strickland standard applies to claims of ineffective assistance at

the plea stage, but explained that the prejudice prong requires a petitioner

to prove that, ‘‘but for counsel’s errors, he would not have pleaded guilty

and would have insisted on going to trial.’’ Hill v. Lockhart, supra, 474 U.S. 59.

3 The court in Teague recognized two exceptions to the general rule of

nonretroactivity for new constitutional rules. See Teague v. Lane, supra,

489 U.S. 307 (‘‘First, a new rule should be applied retroactively if it places

certain kinds of primary, private individual conduct beyond the power of

the criminal law-making authority to proscribe. . . . Second, a new rule

should be applied retroactively if it requires the observance of those procedures that . . . are implicit in the concept of ordered liberty.’’ [Citation

omitted; internal quotation marks omitted.]). Because I would conclude that

Padilla did not announce a new rule, those exceptions are not relevant to

my analysis.

4

I note, however, that we have never addressed the question of whether

to give retroactive effect to a particular decision where, as in the present

case, the United States Supreme Court has previously ruled that the decision

does not apply retroactively on federal habeas review. In fact, we have only

actually conducted a Teague analysis in one case, Duperry v. Solnit, 261

Conn. 309, 318–24, 803 A.2d 287 (2002), wherein we reversed the judgment

of the habeas court on the ground that it announced a new rule in a collateral

proceeding. In the remaining cases on which the majority relies, we did not

actually apply the Teague framework at all. See State v. Payne, 303 Conn.

538, 549–50, 550 n.10, 34 A.3d 370 (2012) (adopting new approach to joinder

of criminal trials under rules of practice and noting that it will not apply

retroactively on collateral review); Johnson v. Warden, 218 Conn. 791, 796–

98, 591 A.2d 407 (1991) (concluding that United States Supreme Court decision on which petitioner relied did not apply retroactively because it had

resolved question of statutory interpretation and did not announce constitutional rule). I also note that I agree with the majority that nothing we said

in Luurtsema v. Commissioner of Correction, 299 Conn. 740, 12 A.3d 817

(2011), suggests that we should no longer follow the Teague framework in

determining whether a constitutional rule applies retroactively.

5 As the Nevada Supreme Court recently put it, ‘‘[t]he policy concerns

behind Teague are partly germane to collateral review by this and other
state courts and partly not. We share the concern that the finality of convictions not be unduly disturbed, but the need to prevent excessive interference

by federal habeas courts has no application to habeas review by state courts

themselves. And even the effect on finality is not as extreme when a state

appellate court, as opposed to a federal court, decides to apply a rule

retroactively: first, the decision affects only cases within that state, and

second, most state collateral review occurs much sooner than federal collateral review. In addition, we are concerned with encouraging the [trial]

courts of this state to strive for perspicacious, reasonable application of

constitutional principles in cases where no precedent appears to be squarely

on point.’’ Colwell v. State, supra, 118 Nev. 818.

6

I note, however, that ‘‘[t]he standard for determining when a case establishes a new rule is objective, and the mere existence of conflicting authority

does not necessarily mean a rule is new.’’(Internal quotation marks omitted.)

Chaidez v. United States, supra, 133 S. Ct. 1120 (Sotomayor, J., dissenting).

This is especially true with cases involving a governing standard that, like

Strickland, will necessarily evolve to reflect current practices. Thus, in

the present case, the ‘‘earlier decisions show nothing more than that the

underlying professional norms had not yet evolved to require attorneys

to provide advice about deportation consequences.’’ Id., 1118 (Sotomayor,

J., dissenting).

7

In arguing to the contrary, the respondent relies on State v. Aquino, 89

Conn. App. 395, 406–407, 873 A.2d 1075 (2005), in which the Appellate Court

concluded that deportation was a collateral consequence outside the scope

of the sixth amendment. Subsequently, however, following our grant of

certification, we reversed the judgment of the Appellate Court and concluded

that that court did not have jurisdiction to address the claim and should

have dismissed the appeal as moot. State v. Aquino, 279 Conn. 293, 298–99,

901 A.2d 1194 (2006). Because the Appellate Court did not have jurisdiction

over the appeal in Aquino, its discussion of the merits was dicta and not

binding on habeas courts at the time Padilla was decided. Cf. State v.

Singleton, 274 Conn. 426, 440, 876 A.2d 1 (2005) (‘‘when a court dismisses

a case for lack of subject matter jurisdiction, any further discussion of the

merits of that case is dicta’’).

8 The majority also notes that, in Chaidez, the court included Connecticut

among the jurisdictions to have determined that advice concerning immigration consequences does not fall within the scope of the right to the effective

assistance of counsel. See Chaidez v. United States, supra, 133 S. Ct. 1109

n.8. The case on which the court in Chaidez relied for that proposition,

however, Niver v. Commissioner of Correction, 101 Conn. App. 1, 919 A.2d

1073 (2007), held no such thing. In Niver, the Appellate Court affirmed the

habeas court’s denial of a claim of ineffective assistance of counsel based

on counsel’s failure to provide adequate advice regarding the immigration

consequences of a plea, and, in setting forth the governing law, stated that

‘‘[t]he impact of a plea’s immigration consequences . . . is not of constitutional magnitude . . . .’’ (Internal quotation marks omitted.) Id., 4. The

court did not resolve the case on those grounds, however, and went on to

conclude that counsel’s performance was not deficient because he ‘‘specifically discussed the potential immigration consequences of [the petitioner’s]

plea’’; id., 5; and that, in any event, the petitioner failed to prove that she

was prejudiced. Id., 5–6. Thus, Niver cannot fairly be read to stand for the

proposition for which it was cited in Chaidez.

9 Although the majority cites four cases in which Padilla claims were

rejected in the eight months following Chaidez as evidence that ‘‘the petitioner’s claim that retroactive application of Padilla in Connecticut will have

a limited effect is belied by the facts,’’ the majority fails to acknowledge

that, in three of those cases, the habeas court denied the claim on the merits.

See Gonzalez v. Commissioner of Correction, 145 Conn. App. 28, 30, 74

A.3d 509 (noting habeas court determined that counsel adequately advised

petitioner regarding immigration consequences), cert. denied, 310 Conn.

929, 78 A.3d 145 (2013); Saksena v. Commissioner of Correction, Superior

Court, judicial district of Tolland, Docket No. CV-08-4002306-S (June 2, 2011)

(same), aff’d, 145 Conn. App. 152, 158–59, 76 A.3d 192, cert. denied, 310

Conn. 940, 79 A.3d 892 (2013); Alcena v. Warden, Superior Court, judicial

district of Tolland, Docket No. CV-10-4003448-S (May 5, 2011) (same; also

determined that petitioner did not establish prejudice). The court in the

fourth case did not reach the merits, rejecting the claim on the ground that

Padilla did not apply retroactively. Gjini v. Warden, Superior Court, judicial

district of Tolland, Docket No. CV-10-4003834-S (March 6, 2013). These cases

do not support the majority’s concerns that applying Padilla retroactively
would lead to a flood of new trials; in fact, they demonstrate that the

Strickland standard adequately protects the state’s interest in the finality

of convictions.