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EMMANUEL THIERSAINT v. COMMISSIONER OF

CORRECTION

(SC 19134)

Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and

Robinson, Js.

Argued April 29, 2014—officially released April 14, 2015

Matthew A. Weiner, deputy assistant state’s attorney,

with whom were Marjorie Allen Dauster, senior assistant state’s attorney, and, on the brief, David I. Cohen,

state’s attorney, and Marcia A. Pillsbury, deputy assistant state’s attorney, for the appellant (respondent).

Kate Mollison and Celso Perez, law student interns,

with whom were Muneer I. Ahmad, James Swaine,

and, on the brief, Robert Fuentes, law student intern,

for the appellee (petitioner).

Elisa L. Villa filed a brief for the Connecticut Criminal Defense Lawyers Association as amicus curiae.

Christopher N. Lasch filed a brief on behalf of various

legal scholars as amici curiae.
Opinion

ZARELLA, J. The respondent, the Commissioner of

Correction, appeals from the judgment of the habeas

court granting the amended petition for a writ of habeas

corpus filed by the petitioner, Emmanuel Thiersaint, on

the ground that the petitioner’s trial counsel rendered

ineffective assistance by failing to advise him, pursuant

to the rule announced in Padilla v. Kentucky, 559 U.S.

356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), that his

conviction for possession of narcotics with intent to

sell, an aggravated felony, would result in his almost

certain deportation and permanent removal from the

United States.1 The respondent claims thatthe judgment

should be reversed because the habeas court incorrectly concluded that Padilla applies retroactively to

the petitioner’s guilty plea, and, therefore, the petitioner

was misadvised and prejudiced under Strickland v.

Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L.

Ed. 2d 674 (1984). The petitioner replies that this court

should conclude that Padilla applies retroactively as a

matter of Connecticut law and affirm the habeas court’s

judgment because: (1) the requirement in Padilla that

defense counsel provide accurate immigration advice

to noncitizen clients was required by the professional

norms in Connecticut at the time of his trial; (2) even

if Padilla announced a new rule, Connecticut habeas

petitions function as de facto direct review of ineffective assistance claims, and both old and new rules are

applicable on directreview;(3)Connecticut has alternative procedural mechanisms to ensure the finality of

criminal judgments; and (4) Connecticut historically

has given special solicitude to the right to counsel and

should continue to uphold that tradition in the present

case. In the alternative, the petitioner argues that his

trial counsel provided him with gross misadvice that

rendered his plea involuntary, unintelligent, and thus

invalid, and that his counsel failed to provide effective

assistance because he did not pursue a drug dependency defense.2 We conclude that Padilla does not

apply retroactively to the petitioner’s plea and that the

petitioner cannot prevail on either of the alternative

grounds. Accordingly, we reverse the judgment of the

habeas court.

The following relevant facts and procedural history

are set forth in the habeas court’s opinion. ‘‘In 1994,

when the petitioner was fourteen years old, he left his

native country of Haiti with his father and came to the

United States. He entered the United States legally, with

a ‘green card’ and thus held a status as a permanent

resident of the United States. He has lived in the United

States for almost two decades, since 1994, and attended

high school here. He has no relatives in Haiti.

‘‘A few years after the petitioner arrived in the United

States, he was in a serious car accident, during which

he was critically injured. As a result of his injuries, the
petitioner had to have his right leg amputated above

the knee and since that time has required either [a]

prosthesis to walk or a wheelchair to get around. . . .

‘‘After the petitioner’s accident, he spent eight

months in the hospital, where he was given a number

of drugs for his injuries. After leaving the hospital, the

petitioner developed a drug addiction to crack cocaine.

The petitioner has not used illegal drugs for several

years. He presently lives with his girlfriend of seven

years and their young daughter. . . .

‘‘On September 20, 2006, the petitioner was arrested

and charged in two separate cases with the following

charges in both cases: (1) sale of narcotics in violation

of General Statutes [Rev. to 2005] § 21a-278 (b); (2) sale

of narcotics within 1500 feet of a school in violation

of General Statutes § 21a-278a (b); (3) possession of

narcotics in violation of General Statutes § 21a-279 (a);

and (4) possession of narcotics within 1500 feet of a

school in violation of . . . § 21a-279 (d). The charges

stemmed from two $20 sales of crack cocaine by the

petitioner to an undercover police officer. At the time

of his 2006 arrest, the petitioner was on probation,

having been convicted [in 2004] after a plea of possession of a controlled substance in violation of . . .

§ 21a-279 (a). As [a] condition of his probation, the court

ordered ‘substance abuse evaluation and treatment.’

‘‘The petitioner was arraigned on the new charges

on September 29, 2006, at which time he pleaded not

guilty. The petitioner could not make the bond set by

the court and therefore, remained incarcerated during

the pretrial proceedings in this case. Because he could

not afford his own attorney, [S]pecial [P]ublic

[D]efender [John] Imhoff was appointed to represent

him.

‘‘[Imhoff] is an experienced criminal defense attorney. In 2006 . . . Imhoff had a state contract to represent indigent criminal defendants for a fee. In the

petitioner’s case . . . Imhoff was paid $250, which covered his fee for all of the pretrial proceedings in this

case. When . . . Imhoff was appointed to represent

the petitioner, he knew the petitioner was from Haiti,

and had entered the United States legally.

‘‘Although the petitioner’s record evinced a possible

substance abuse history . . . Imhoff did not seek to

have the petitioner evaluated for substance abuse. Also,

even though [a diversionary program operated by the

former Connecticut Alcohol and Drug Abuse Commission, now the Department of Mental Health and Addiction Services] under General Statutes § 17a-696, was

available to the petitioner . . . Imhoff did not pursue

it because he did not believe the court would grant [the

petitioner admission into] the program.

‘‘[Imhoff] engaged in plea negotiations with the state’s

attorney and the court and ultimately received a court
offer of seven . . . years [of imprisonment] suspended

after two . . . years followed by five . . . years’ probation with no mandatory minimums on all charges if

[the petitioner pleaded] to one count of possession with

intent to sell under General Statutes § 21a-277 (a). During the plea negotiations . . . Imhoff asked the state

to reduce the charge to possession only, but the state

declined because the petitioner had sold drugs to an

undercover police officer. . . . Imhoff did not raise the

issue of a reduction in the charge to possession with

the court during the supervised pretrial. In seeking a

reduction of the charge to possession, Imhoff did not

explain to the state or the court that the petitioner was

subject to mandatory deportation or suggest that the

charge be reduced in exchange for the petitioner agreeing to do more prison time on the reduced charge.

‘‘The petitioner testified that . . . Imhoff met with

him approximately five times in the holding cells in the

Norwalk courthouse, and did not advise him regarding

the immigration consequences of his plea. . . . Imhoff

testified that he told the petitioner that he should consult with an attorney knowledgeable in immigration law

regarding the immigration consequences of the plea, as

well as any postconviction immigration proceedings.

Even though the petitioner was incarcerated and indigent . . . Imhoff did not obtain an immigration [attorney] for the petitionerto consult with nor did he himself

consult with such an attorney on the petitioner’s

behalf.’’ (Footnote omitted.)

‘‘[Imhoff] had participated in seminars on representing noncitizen defendants, including one held in 2006

and sponsored by the [Chief] [P]ublic [D]efender’s

[O]ffice. He was provided with a manual . . . which

provided guidance specific to representing noncitizen

criminal defendants in Connecticut. [J. Baron & A. Walmsley, A Brief Guide to Representing Noncitizen Criminal Defendants in Connecticut(Rev. 2005).] The manual

specifically and clearly indicates that § 21a-277 (a), possession with intent to sell, is an ‘aggravated felony,’

which it states is the ‘worst category of criminal

offenses for immigration purposes.’ [Id., p. 4.]’’

‘‘Had . . . Imhoff consulted with an immigration

attorney, he would have been advised to avoid any

conviction that would constitute an ‘aggravated felony’

at all costs because a conviction under § 21a-277 (a)

would constitute an aggravated felony that would subject the petitioner to mandatory detention and deportation, and bar him from asserting legitimate defenses to

removal. . . .

‘‘Despite believing that the petitioner needed separate

counsel knowledgeable in immigration matters to

advise the petitioner regarding the immigration consequences of the plea offer . . . Imhoff nonetheless

claims to have advised the petitioner regarding these

issues. Although . . . Imhoff could not recall precisely
what he told the petitioner . . . he could recall . . .

[that he] told the petitioner that he would ‘probably’

have to deal with immigration after his state criminal

proceedings concluded, that he would have an immigration hearing ‘and if you have a hearing there is some

chance you might win, but I thought it was very

unlikely,’ and ‘it’d be very difficult not to be deported.’

‘‘[Imhoff] did not tell the petitioner that because his

plea to the charge of possession with intent to sell

under § 21a-277 (a) would result in a conviction of an

aggravated felony under federal law, that he would not

return home because he would be mandatorily detained

pending deportation after his sentence was completed,

that he would have no legitimate defenses to deportation, that deportation was a virtual certainty, and that

after being deported, he would be permanently barred

from returning to the United States.

‘‘On April 9, 2007, the petitioner pleaded guilty to

possession with intent to sell in violation of . . . § 21a277 (a) and received a sentence of seven . . . years

[of imprisonment] suspended after two . . . years, followed by five . . . years of probation. The petitioner

was canvassed by the court as to his decision to plead

guilty. During the canvass, the court asked the petitioner, pursuant to General Statutes § 54-1j, if he understood ‘that if you’re not a citizen of the United States

of America, then a conviction for the offense may have

the consequence of deportation, exclusion from readmission to this country, or denial of naturalization pursuant to the laws of this country.’ The petitioner

responded that he understood. . . .

‘‘Immediately upon being released from state prison

on September 18, 2008, the petitioner was taken into

custody by the United States Immigration and Customs

Enforcement Agency . . . and the [federal government] commenced deportation/removal proceedings

against him. The basis of the removal order was the

state court conviction for possession of narcotics with

intent to sell, and a 2004 conviction for possession of

a controlled substance.

‘‘On February 27, 2009, the petitioner’s application

for deferral of removal under the [United Nations Convention Against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment, an international

rights treaty adopted in 1984], the only defense available

to the petitioner, was denied and the petitioner was

ordered removed from the United States and returned

to Haiti. The petitioner appealed [the] removal order

to the Board of Immigration Appeals, which dismissed

[the appeal] on May 27, 2009. Based on the changed

country conditions in Haiti in the wake of the January,

2010 earthquake, the petitioner filed a motion to reopen

his removal proceedings on August 2, 2011. That motion

was denied on September 19, 2011.
‘‘The petitioner filed petitions for review of both the

removal order and the denial of the motion to open to

the United States Court of Appeals for the Second Circuit, which consolidated both matters and denied them

both on February 28, 2012. Thus, the petitioner has

exhausted his federal challenges to the order of

removal, and is subject to a final removal order. However, due to the physical conditions in Haiti stemming

from natural disasters, deportations to that country

have been temporarily deferred. The petitioner remains

in the United States and has been released from federal

custody, but is subject to a final order of removal and

may be removed at any time.’’ (Footnotes omitted.)

The petitioner filed a petition for a writ of habeas

corpus on September 24, 2009, and an amended petition

on November 7, 2011. The petitioner claimed ineffective

assistance of counsel under Padilla on the ground that

his attorney had failed to advise him that the state’s plea

offer and his plea of guilty and subsequent conviction

would constitute an aggravated felony under federal

law and subject him to virtually automatic deportation.

The petitionerthus sought habeas relief ‘‘in the interests

of justice’’ and under the federal and state constitutions.3

A three day trial was held on the habeas petition in

April and May, 2012. In its memorandum of decision

dated December 7, 2012, the habeas court initially concluded that the petitioner’s federal sixth amendment

ineffective assistance claim was governed by the twopronged test set forth in Strickland v. Washington,

supra, 466 U.S. 687, as modified by Hill v. Lockhart,

474 U.S. 52, 56, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985).

See our discussion in part I of this opinion. The court

then concluded that Padilla applied retroactively to the

petitioner’s guilty plea and that the petitioner had met

his burden underthe performance and prejudice prongs

of the test enunciated in Strickland, as modified by

Hill. The court finally concluded that the trial court’s

general plea canvass was insufficient to cure counsel’s

deficient performance. This appeal by the respondent

followed.4

On appeal, the respondent claims that Padilla does

not apply retroactively to the petitioner’s guilty plea

and that the judgment should be reversed because the

United States Supreme Court determined in Chaidez

v. United States, U.S. , 133 S. Ct. 1103, 1113, 185

L. Ed. 2d 149 (2013), that the rule announced in Padilla

was a ‘‘new rule,’’ and, therefore, the rule applies only

to future criminal matters or to matters pending on

direct appeal when Padilla was decided. The respondent also claims that the petitioner cannot prevail on

his state law and other claims because he made no such

claims in his habeas petition and, in any event, the

rule in Padilla represents a departure from established

Connecticut law. The petitioner replies that the rule in
Padilla may be applied retroactively as a matter of state

law and, in the alternative, that his trial counsel gave

him gross misadvice that rendered his plea unknowing,

unintelligent, and involuntary. He also argues that his

trial counsel was ineffective because he failed to pursue

a drug dependency defense. We address each of these

claims in turn.

I

We begin with the respondent’s claim that Padilla

does not apply retroactively to the petitioner’s guilty

plea under federal law. The standard of review and the

law governing ineffective assistance of counsel claims

is well established. ‘‘Although the underlying historical

facts found by the habeas court may not be disturbed

unless they were clearly erroneous, whether those facts

constituted a violation of the petitioner’s rights under

the sixth amendment is a mixed 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. Strickland v. Washington, [supra, 466 U.S. 686]. This right arises under

the sixth and fourteenth amendments to the United

States constitution and article first, § 8, of the Connecticut constitution. Copas v. Commissioner of Correction,

234 Conn. 139, 153, 662 A.2d 718 (1995). . . . 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).

A claim of ineffective assistance of counsel is governed by the two-pronged test set forth in Strickland

v. Washington, supra, 466 U.S. 687. Under Strickland,

the petitioner has the burden of demonstrating that

‘‘(1) counsel’s representation fell below an objective

standard of reasonableness, and (2) counsel’s deficient

performance prejudiced the defense because there was

a reasonable probability that the outcome of the proceedings would have been different had it not been for

the deficient performance.’’ (Emphasis omitted.) Johnson v. Commissioner of Correction, 285 Conn. 556, 575,

941 A.2d 248 (2008). For claims of ineffective assistance

of counsel arising out of the plea process, the United

States Supreme Court has modified the second prong of

the Strickland test to require thatthe petitioner produce

evidence ‘‘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.’’ Hill v. Lockhart, supra, 474 U.S. 59. An ineffective

assistance of counsel claim ‘‘will succeed only if both
prongs [of Strickland] are satisfied.’’(Internal quotation

marks omitted.) Mozell v. Commissioner of Correction,

291 Conn. 62, 77, 967 A.2d 41 (2009).

In Padilla, the United States Supreme Court considered whether advising a noncitizen criminal defendant

of the possible deportation consequences of a guilty

plea falls within the scope of representation required

of criminal defense attorneys by the sixth amendment

to the federal constitution and concluded that it did.

Padilla v. Kentucky, supra, 559 U.S. 364–66. The court

reasoned that ‘‘changes to our immigration law have

dramatically raised the stakes of a noncitizen’s criminal

conviction. The importance of accurate legal advice for

noncitizens accused of crimes has never been more

important. These changes confirm our view that, as a

matter of federal law, deportation is an integral part—

indeed, sometimes the most important part—of the penalty that may be imposed on noncitizen defendants who

plead guilty to specified crimes.’’ (Footnote omitted.)

Id., 364. The court continued: ‘‘We have long recognized

that deportation is a particularly severe ‘penalty’ . . .

but it is not, in a strict sense, a criminal sanction.

Although removal proceedings are civil in nature . . .

deportation is nevertheless intimately related to the

criminal process. Our law has enmeshed criminal convictions and the penalty of deportation for nearly a

century . . . . And, importantly, recent changes in our

immigration law have made removal nearly an automatic result for a broad class of noncitizen offenders.

Thus, we find it ‘most difficult’ to divorce the penalty

from the conviction in the deportation context. . . .

Moreover, we are quite confident that noncitizen defendants facing a risk of deportation for a particular offense

find it even more difficult.’’ (Citations omitted.) Id.,

365–66. The court thus concluded that ‘‘advice regarding deportation is not categorically removed from the

ambit of the [s]ixth [a]mendment right to counsel.’’

Id., 366.

Having resolved this threshold question, the court in

Padilla next concluded that ‘‘[t]he weight of prevailing

professional norms supports the view that counsel must

advise [his or] her client regarding the risk of deportation’’; id., 367; and that whether counsel has provided

such advice is properly considered underthe first prong

of Strickland. Id., 366–67. The court then determined

that the defendant, Jose Padilla, had sufficiently alleged

a constitutional violation under Strickland because the

deportation consequences of his plea were ‘‘truly clear’’;

id., 369; and, therefore, his counsel’s duty to give correct

advice was ‘‘equally clear.’’5

Id.

The United States Supreme Court did not consider

whether the rule in Padilla applies retroactively to

defendants whose convictions were final by the time

that case was decided until approximately three years

later in Chaidez. Relying on the principles set forth in
Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L.

Ed. 2d 334 (1989), the court in Chaidez agreed with the

government that Padilla had ‘‘announced a ‘new rule’

and, under Teague, such rules do not apply in collateral

challenges to already-final convictions.’’ Chaidez v.

United States, supra, 133 S. Ct. 1106. The court

explained as follows: ‘‘Teague makes the retroactivity

of our criminal procedure decisions turn on whether

they are novel. When we announce a ‘new rule,’ a person

whose conviction is already final may not benefit from

the decision in a habeas or similar proceeding. Only

when we apply a settled rule may a person avail herself

of the decision on collateral review. . . .

‘‘[A] case announces a new rule, Teague explained,

when it breaks new ground or imposes a new obligation

on the government. . . . To put it differently . . . a

case announces a new rule if the result was not dictated

by precedent existing atthe time the defendant’s conviction became final. . . . And a holding is not so dictated,

we later stated, unless it would have been apparent to

all reasonable jurists. . . .

‘‘But that account has a flipside. Teague also made

clear that a case does not announce a new rule, [when]

it [is] merely an application of the principle that governed a prior decision to a different set of facts. . . .

[W]here the beginning point of our analysis is a rule of

general application, a rule designed for the 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.

. . . Otherwise said, when all we do is apply a general

standard to the kind of factual circumstances it was

meant to address, we will rarely state a new rule for

Teague purposes.’’ (Citations omitted; emphasis

altered; footnote omitted; internal quotation marks

omitted.) Id., 1107.

In further explaining why the rule in Padilla could

not be given retroactive effect under the principles

espoused in Teague, the court in Chaidez added: ‘‘Padilla would not have created a new rule had it only applied

Strickland’s general standard to yet another factual

situation—that is, had Padilla merely made clear that

a lawyer who neglects to inform a client about the risk

of deportation is professionally incompetent.

‘‘But Padilla did something more. Before deciding if

failing to provide such advice fell below an objective

standard of reasonableness, Padilla considered a

threshold question: Was advice about deportation categorically removed from the scope ofthe [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? . . . In other

words, prior to asking how the Strickland test applied

(Did this attorney act unreasonably?), Padilla asked

whether the Strickland test applied (Should we even
evaluate if this attorney acted unreasonably?). And as

we will describe, that preliminary question about

Strickland’s ambit came to the Padilla [c]ourt unsettled—so that the [c]ourt’s answer (Yes, Strickland governs here) required a new rule.’’ (Citation omitted;

emphasis in original; footnote omitted; internal quotation marks omitted.) Id., 1108.

The court in Chaidez also observed that the scope

of Strickland was unsettled when Padilla was decided

because the court in Hill v. Lockhart, supra, 474 U.S.

52, more than twenty-five years earlier had ‘‘explicitly

left open whether advice concerning a collateral consequence must satisfy [s]ixth [a]mendment requirements.’’ Chaidez v. United States, supra, 133 S. Ct. 1108.

As a result, the ‘‘non-decision’’ in Hill ‘‘left the state

and lower federal courts to deal with the issue; and

they almost unanimously concluded that the [s]ixth

[a]mendment does not require attorneys to inform their

clients of a conviction’s collateral consequences,

including deportation.’’6

Id., 1109. The court in Chaidez

further observed that, ‘‘when we decided Padilla, we

answered a question about the [s]ixth [a]mendment’s

reach that we had left open, in a way that altered the

law of most jurisdictions . . . .’’ Id., 1110. By

‘‘breaching the previously chink-free wall between

direct and collateral consequences,’’ the court in Padilla ‘‘broke new ground . . . .’’ (Internal quotation

marks omitted.) Id. This was because, before Padilla,

the court ‘‘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’’; id.;

and there existed no precedent that ‘‘ ‘dictated’ the

answer’’; (emphasis in original) id.; whereas Padilla

rejected the categorical approach adopted by most state

and federal courts and was the first to make the Strickland test operative in the context of immigration consequences. Id. The court in Chaidez thus concluded that

‘‘Padilla . . . announced a ‘new rule.’ ’’ Id., 1111.

Mindful of this legal precedent, we turn to the respondent’s claim that the ruling in Padilla does not apply

retroactively to the petitioner’s guilty plea underfederal

law. The habeas court’s memorandum of decision was

released on December 7, 2012, approximately two

months before release of the decision in Chaidez. In

fact, the habeas court acknowledged in a footnote that

the retroactive application of Padilla was an ‘‘open

question’’ that had been argued before the United States

Supreme Court in Chaidez only one month earlier. Nevertheless, the habeas court rendered a decision and

concluded, without the benefit of the soon to be

released opinion in Chaidez, that the ruling in Padilla

was intended by that court to be applied retroactively

under federal law. As the preceding discussion indicates, however, the court in Chaidez determined soon

thereafter that the ruling in Padilla was not to be given

retroactive effect. Id., 1113. Accordingly, we agree with
the respondent that Padilla does not apply retroactively

to the petitioner’s guilty plea under federal law.

II

The petitioner argues that, notwithstanding the decision in Chaidez, the judgment of the habeas court may

be affirmed as a matter of state law. The petitioner

contends that, under Danforth v. Minnesota, 552 U.S.

264, 282, 128 S. Ct. 1029, 169 L. Ed. 2d 859 (2008), this

court is authorized by federal law to apply the rule in

Padilla retroactively on state habeas review because

the court in Danforth limited application of the principles articulated in Teague to collateral review of state

decisions by federal courts. As a corollary to this argument, the petitioner contends that Teague does not

apply to his state law claims because this court recognized in Luurtsema v. Commissioner of Correction,

299 Conn. 740, 753 n.14, 12 A.3d 817 (2011), that state

courts are not bound by Teague.

7 Nevertheless, should

this court apply the principles established in Teague,

the petitioner articulates several grounds on which the

court may find a constitutional violation under state

law. We agree with the petitioner’s interpretation of

Danforth but do not agree that Connecticut courts

should abandon Teague. We also disagree with the petitioner that, if Teague applies, there is a constitutional

violation in the present case under Connecticut law.

A

We begin by examining Danforth. In that case, the

United States Supreme Court explained: ‘‘[T]he 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.’’ Danforth v. Minnesota, supra, 552 U.S. 280–81. The court

further explained 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.’’ (Citation omitted; emphasis in original.) Id., 279–80. The

petitioner is thus correct in claiming that, under Danforth, state courts may give broader effect to new constitutional rules of criminal procedure than Teague

allows in federal habeas review.

B

The petitioner next argues that Teague should not

apply in the present case because our decision in Luurtsema suggested that this court was not bound by

Teague. In Luurtsema, we stated in a footnote that

‘‘the rules governing the retroactive application of new

procedural decisions . . . derive from Teague v. Lane,
[supra, 489 U.S. 288]’’; Luurtsema v. Commissioner of

Correction, supra, 299 Conn. 753 n.14; but that Teague

specified that ‘‘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.’’8

Id. We also stated in Luurtsema

that, ‘‘[a]lthough this court has in the past applied the

Teague framework to state habeas proceedings as well

. . . 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.’’ (Citation omitted.) Luurtsema v. Commissioner of Correction, supra, 753 n.14.9

Contrary 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. Furthermore, even

the petitioner has recognized that, on the few occasions

when Connecticut courts have considered Teague, they

have applied its principles without hesitation. See State

v. Payne, 303 Conn. 538, 550 n.10, 34 A.3d 370 (2012)

(Teague retroactivity holding inapposite because new

rule of law is procedural); Duperry v. Solnit, 261 Conn.

309, 322, 803 A.2d 287 (2002) (habeas court improperly

declared and applied new constitutional rule in collateral proceeding in contravention of principle enunciated in Teague); Johnson v. Warden, 218 Conn. 791,

796–98, 591 A.2d 407 (1991) (habeas court improperly

applied Teague retroactivity holding to new nonconstitutionalrule of criminal procedure); Garcia v. Commissioner of Correction, 147 Conn. App. 669, 677, 84 A.3d

1 (2014) (new procedural rule not retroactive under

Teague).10 Thirty-three other states and the District of

Columbia likewise apply Teague in deciding state law

claims.11 We nonetheless review the petitioner’s claim

that Teague should be abandoned in Connecticut

because this court has not previously been asked to

reexamine Teague in light of the Supreme Court’s recognition in Danforth that states are not bound by federal

law when determining whether a new rule applies retroactively in a state collateral proceeding.

Despite the prevailing view among other jurisdictions, the petitioner argues that Teague should be abandoned in Connecticut because the pool of applicants

who could seek relief under the retroactive application

of Padilla is extremely limited and the state’s interest

in fairness and due process protections weighs more

heavily than uniformity with the federal standard. We

disagree.

We note that, during the eight months following the

release of the decision in Chaidez, the Appellate Court

rejected three Padilla claims on the basis of Chaidez

and the Superior Court rejected one. See Alcena v.

Commissioner of Correction, 146 Conn. App. 370, 374,
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, cert. denied, 310 Conn. 929, 78 A.3d 145

(2013) (per curiam); Gjini v. Warden, Superior Court,

judicial district of Tolland, Docket No. CV-10-4003834-

S (March 6, 2013). Thus, the petitioner’s claim that the

retroactive application of Padilla in Connecticut would

affect an extremely limited pool of applicants is not

necessarily true.12

We also observe that the state’s interest in fairness

and due process protections must be balanced against

the importance of the finality of convictions. We agree

with the court’s observation in Teague that ‘‘[a]pplication of constitutional rules not in existence at the time

a conviction became final seriously undermines the

principle of finality which is essential to the operation

of our criminal justice system. Withoutfinality, the criminal law is deprived of much of its deterrent effect.’’

Teague v. Lane, supra, 489 U.S. 309. We also agree with

the court in Teague that ‘‘[t]he costs imposed upon

the [states] by retroactive application of new rules of

constitutional law on habeas corpus . . . generally far

outweigh the benefits . . . . In many ways the application of new rules to cases on collateral review may be

more intrusive than the enjoining of criminal prosecutions . . . for it continually forces the [s]tates to marshal resources in order to keep in prison defendants

whose trials and appeals conformed to the then-existing

constitutional standards.’’ (Citations omitted; emphasis

in original; internal quotation marks omitted.) Id., 310.

In other words, states will be required to maintain

records and expend additional administrative and financial resources on defendants for possibly many years

following their convictions in order to defend against

future habeas proceedings, which, if successful, may

result in the need for another trial. In addition, Teague

provides a framework that is relatively easy for courts

to apply and achieve consistent results. We are therefore not inclined to depart from Teague.

The petitioner maintains that Teague finality concerns are inapplicable because Connecticut has mechanisms such as the doctrine of res judicata to ensure the

finality of state criminal judgments and to avoid habeas

review of claims previously raised on direct review

or in other postconviction proceedings. We disagree.

Although the first opportunity to raise a claim of ineffective assistance relating to a guilty plea is in the trial

court through a motion to withdraw the plea; see Practice Book § 39-27 (4); there is no requirement that petitioners must use that opportunity to raise such a claim.

Moreover, we have stated that the doctrine of res judicata is limited ‘‘to claims that actually have been raised

and litigated in an earlier proceeding.’’ (Internal quota-
tion marks omitted.) Johnson v. Commissioner of Correction, 288 Conn. 53, 67, 951 A.2d 520 (2008). Thus, if

a petitioner has not filed a motion to withdraw a plea

or has not raised and fully litigated an ineffective assistance of counsel claim in an earlier proceeding, he or

she is free to raise the claim in a habeas proceeding, as

petitioners often do. We therefore adopt the framework

established in Teague, with the caveat that, while federal decisions applying Teague may be instructive, this

court will not be bound by those decisions in any particular case, but will conduct an independent analysis and

application of Teague.

C

The petitioner next contends that, even if this court

applies Teague in deciding state habeas petitions, the

habeas court’s judgment in the present case should be

affirmed because the rule in Padilla that trial counsel

must provide accurate immigration advice to noncitizen

clients was required by prevailing professional norms

in Connecticut at the time of the petitioner’s trial and

by the relevant governing statutes, and, therefore, it

was not a new rule under Teague.

13 As evidence of

prevailing professional norms, the petitioner relies on

the testimony of two expert witnesses, deemed credible

by the habeas court, that his trial counsel had a duty

to inform him of the virtual certainty of his deportation

and the impossibility of his return to the United States

should he plead guilty to an aggravated felony under

federal law. He also relies on the requirement in § 54-

1j14 that the trial court and defense counsel must inform

a noncitizen criminal defendant of the possible deportation consequences of a guilty plea. We disagree.

Although professional norms are intended to guide

the conduct of attorneys, the violation of a professional

norm does not necessarily render counsel’s representation constitutionally deficient. The court noted in Padilla that professional norms ‘‘are guides to determining

what is reasonable . . . and not inexorable commands

. . . .’’ (Citations omitted; internal quotation marks

omitted.) Padilla v. Kentucky, supra, 559 U.S. 366–67.

This court similarly observed in Phillips v. Warden, 220

Conn. 112, 134, 595 A.2d 1356 (1991), that ‘‘[p]revailing

norms of practice as reflected in American Bar Association standards and the like . . . are guides to determining what is reasonable, but they are only guides.’’

(Citation omitted; internal quotation marks omitted.)

This is very likely because of the difficulty of determining when a certain practice becomes a prevailing professional norm. Furthermore, even if professional norms in

Connecticut suggested in 2007 that trial counsel should

inform noncitizen criminal defendants that mandatory

deportation may be a collateral consequence of a guilty

plea, this court had stated several years before the petitioner entered his plea that such advice was not constitutionally required under the relevant governing
statutes.

In State v. Malcolm, 257 Conn. 653, 662–63, 778 A.2d

134 (2001), in which this court considered whether

strict compliance with § 54-1j was necessary to validate

the defendant’s guilty plea, the court stated that,

because ‘‘only substantial compliance is required when

warning the defendant of the direct consequences of a

guilty plea pursuant to Practice Book § 39-1915 in order

to ensure that the plea is voluntary . . . [w]e will not

require stricter compliance with regard to the collateral

consequences of a guilty plea.’’ (Citations omitted; footnotes altered; internal quotation marks omitted.) The

court then added in a footnote: ‘‘Although we do not

mean to minimize the potential impact of the immigration and naturalization consequences of a plea,

they are not of constitutional magnitude: ‘The statutory mandate . . . cannot transform this collateral

consequence into a direct consequence of the plea. It

can only recognize that this collateral consequence is

of such importance that the defendant should be

informed of its possibility.’ State v. Baeza, 174 Wis. 2d

118, 125, 496 N.W.2d 233 (App. 1993); United States v.

Santelises, 476 F.2d 787, 790 (2d Cir. 1973) (‘[d]eportation . . . serious sanction though it may be, is not such

an absolute consequence of conviction that we are mandated to read into traditional notions of due process a

requirement that a district judge must warn each defendant of the possibility of deportation before accepting

his plea’); see also State v. Andrews, 253 Conn. 497,

504, 507–508 n.8, 752 A.2d 49 (2000).’’ (Emphasis

added.) State v. Malcolm, supra, 663 n.12. In Andrews,

which preceded Malcolm, this court also emphasized

that trial counsel is constitutionally required to inform

a defendant only of the direct consequences of a guilty

plea, and that Connecticut courts had not ‘‘expand[ed]

the universe of direct consequences of a guilty plea

beyond those enumerated in Practice Book § 39-19.’’

State v. Andrews, supra, 507; see footnote 13 of this

opinion. Prior to the petitioner’s plea, the Appellate

Court likewise concluded that collateral consequences

such as deportation do not trigger constitutional protections. See State v. Irala, 68 Conn. App. 499, 520, 792

A.2d 109 (concluding that ‘‘[t]he impact of a plea’s immigration consequences on a defendant, while potentially

great, is not of constitutional magnitude and ‘cannot

transform this collateral consequence into a direct consequence of the plea,’ ’’ quoting State v. Malcolm, supra,

663 n.12), 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). More recently, the court in Chaidez included

Connecticut in a list of approximately thirty jurisdictions that have determined that advice concerning

deportation does not fall within the scope of the sixth

amendment’s right to effective assistance of counsel;

Chaidez v. United States, supra, 133 S. Ct. 1109 n.8;

and observed that the decision in Padilla had ‘‘altered
the law of most jurisdictions . . . .’’ Id., 1110. Accordingly, even if professional norms at the time the petitioner entered his guilty plea required that trial counsel

inform a noncitizen criminal defendant of a plea’s virtually mandatory deportation consequences, the rule

announced in Padilla was a new rule under Connecticut

law because more than one Connecticut court had

noted several years before the petitioner’s plea that

such advice was not constitutionally required.16 We are

therefore compelled to conclude that the petitioner’s

ineffective assistance of counsel claim does not allege

a constitutional violation.17

The petitioner counters that, under Padilla and

Chaidez, the sixth amendment right to counsel makes

no categorical distinction between collateral and direct

consequences. He also contends that this court should

adopt a narrower definition of what constitutes a new

rule than that allowed under the federal standard, as

the Massachusetts Supreme Judicial Court did in Commonwealth v. Sylvain, 466 Mass. 422, 435, 995 N.E.2d

760 (2013). We are not persuaded.

With respect to the distinction between collateral and

direct consequences, we agree with the petitioner that

Padilla rejected that distinction, but the petitioner overlooks the fact that the court’s decision in Padilla to

reject the distinction was the reason why the court in

Chaidez concluded that the rule announced in Padilla

was new. Chaidez v. United States, supra, 133 S. Ct.

1110–11. Indeed, the court in Chaidez stressed this

point when it stated: ‘‘If [breaching the chink-free wall

between direct and collateral consequences] does not

count as ‘break[ing] new ground’ or ‘impos[ing] a new

obligation,’ we are hard pressed to know what would.’’

Id. Thus, Chaidez affirms that courts in the majority of

jurisdictions that have considered the sixth amendment

right to counsel have traditionally distinguished

between collateral and direct consequences and, as we

have previously noted, continue to do so today.

We also reject the petitioner’s suggestion that this

court should follow the reasoning of the Massachusetts

Supreme Judicial Court in Sylvain. In that case, the

court affirmed the continuing applicability of Commonwealth v. Clarke, 460 Mass. 30, 949 N.E.2d 892 (2011),

in which the court had determined two years before

the Supreme Court’s decision in Chaidez that the rule

announced in Padilla applied retroactively under the

framework established in Teague because the rule was

not new in Massachusetts. Commonwealth v. Sylvain,

supra, 466 Mass. 423–24. The court explained as follows:

‘‘In Clarke, we concluded that ‘[t]here is no question

that the holding in Padilla is an extension of the rule

in Strickland,’ [Commonwealth v. Clarke, supra, 37],

and that Padilla is the ‘definitive application of an established constitutional standard on a case-by-case basis,

incorporating evolving professional norms (on which
the standard relies) to new facts.’ [Id.] 43. This determination reflected our recognition that the standard for

measuring ineffective assistance of counsel under

Strickland is one of general applicability, designed to

evaluate the reasonableness of an attorney’s acts or

omissions in a multitude of factual contexts. [Id.] 36,

38–39, 43. . . . Because application of such a general

standard to a particularfactual scenario rarely produces

a new rule, [id.] 36 . . . we concluded that Padilla did

not announce a new rule and, thus, that the [s]ixth

[a]mendment right enunciated in Padilla applied retroactively to cases on collateral review under the Teague

framework. [Id.] 45.’’(Citations omitted; emphasis omitted; footnotes omitted.) Commonwealth v. Sylvain,

supra, 429.

To resolve the conflicting outcomes in Clarke and

Chaidez, the court in Sylvain distinguished between

what it called the ‘‘original’’ definition of a new rule in

Teague and the ‘‘post-Teague expansion’’ of the definition by the United States Supreme Court. Id., 433. The

court in Sylvain first noted that, ‘‘according to the original formulation discussed in [Teague v. Lane, supra,

489 U.S. 301], ‘a case announce[d] a new rule if the

result was not dictated by precedent’ at the time the

defendant’s conviction became final. In its subsequent

jurisprudence, however, the Supreme Court has greatly

expanded the meaning of whatis ‘new’to include results

not ‘apparent to all reasonable jurists’ at the time. Lambrix v. Singletary, 520 U.S. 518, 527–28 [117 S. Ct. 1517,

137 L. Ed. 2d 771] (1997).’’ Commonwealth v. Sylvain,

supra, 466 Mass. 433. The court then determined that,

although it had incorporated the ‘‘original’’ formulation

into the Massachusetts definition of a new rule when

it adopted the Teague framework in Commonwealth v.

Bray, 407 Mass. 296, 300–301, 553 N.E.2d 538 (1990),

it would not incorporate the expanded definition into

Massachusetts law but, rather, would continue to

adhere to the ‘‘original’’ definition that a rule is new

only when the result is not dictated by precedent. Commonwealth v. Sylvain, supra, 433–34. Thus, relying on

Clarke and the so-called ‘‘original’’ definition of a new

rule in Teague, the court in Sylvain concluded: ‘‘Padilla

did not announce a ‘new’ rule for the simple reason

that it applied a general standard—designed to change

according to the evolution of existing professional

norms—to a specific factual situation. . . . We also are

not persuaded that Massachusetts precedent at the time

Padilla was decided would have dictated an outcome

contrary to that in Padilla. Indeed, long before Padilla

was decided, it was customary for practitioners in Massachusetts to warn their clients of the possible deportation consequences of pleading guilty.’’ (Citations

omitted.) Id., 435.

We disagree with this logic because it conflates the

reasonableness standard applied under the performance prong of Strickland with the rule articulated in
Padilla, regardless of whether the ‘‘original’’ or

‘‘expanded’’ definition of a new rule is used. More specifically, in concluding that the holding in Padilla was

not a new rule but an extension of the reasonableness

prong in Strickland, the court in Sylvain failed to

acknowledge that Padilla addressed a question that

had never been settled. As the court subsequently

explained in Chaidez, ‘‘Padilla did something more

[than consider an attorney’s possible professional

incompetence]. Before deciding if failing to provide

such advice fell below an objective standard of reasonableness, 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? . . . In other words, prior to asking how the

Strickland test applied (Did this attorney act unreasonably?), Padilla asked whether the Strickland test

applied (Should we even evaluate if this attorney acted

unreasonably?). And as we will describe, that preliminary question about Strickland’s ambit came to the

Padilla [c]ourt unsettled—so that the [c]ourt’s answer

(Yes, Strickland governs here) required a new rule.’’

(Citation omitted; emphasis in original; footnote omitted; internal quotation marks omitted.) Chaidez v.

United States, supra, 133 S. Ct. 1108. Thus, by describing

the holding in Padilla as an extension of Strickland,

which was not a new rule, the court in Sylvain ignored

the fact that the question of whether attorneys are constitutionally required to advise noncitizen criminal

defendants of the deportation consequences of a guilty

plea had never been addressed before Padilla. See id.

(court in Hill explicitly left open question of whether

attorney advice regarding collateral consequences must

satisfy sixth amendment requirements). The court in

Sylvain also ignored the fact that the ruling in Padilla

was grounded in a legal analysis of the direct and indirect consequences of a plea, and that the court in Padilla had examined prevailing professional norms under

the performance prong of Strickland only after resolving the threshold constitutional question of whether the

rule applied in that case. We thus dismiss the reasoning

in Sylvain because it fails to recognize that the rule

announced in Padilla was new,18 and not merely an

extension of the rule articulated in Strickland.

19

D

The petitioner further argues that this court should

apply Padilla retroactively because Connecticut habeas

petitions function as de facto direct review for ineffective assistance of counsel claims, and both old and

new rules are always applicable on direct review. We

disagree that state habeas proceedings provide the first

and only opportunity to adjudicate ineffectiveness

claims on their merits and thus function as directreview

proceedings. As we have previously discussed herein,
the first opportunity to raise an ineffectiveness claim

relating to a guilty plea is in the trial court through a

motion to withdraw the plea. See Practice Book § 39-

27 (4). Furthermore, even if most ineffectiveness claims

are filed in habeas court, concerns regarding the finality

of judgments and the costs imposed on states by the

retroactive application of new rules in habeas proceedings, where there are virtually no time limitations that

restrict a petitioner’s ability to bring a claim, generally

outweigh the benefits. We are therefore not persuaded

by this argument.

E

In the alternative, the petitioner argues that, even if

this court determines that Padilla cannot be applied

retroactively under federal or state law, his counsel

grossly misadvised him, thus rendering his plea unintelligent, involuntary, and invalid. We decline to review

this due process claim20 because it was not raised in

the petitioner’s habeas petition, pretrial memorandum,

posttrial brief, or preliminary counterstatement of

issues.

The applicable legal principles are well established.

‘‘In a writ of habeas corpus alleging illegal confinement

the application must set forth specific grounds for the

issuance of the writ including the basis for the claim

of illegal confinement. . . . [T]he petition for a writ of

habeas corpus is essentially a pleading and, as such, it

should conform generally to a complaint in a civil

action. . . . It is fundamental in our law that the right

of a plaintiff to recover is limited to the allegations

of his complaint.’’ (Citation omitted; internal quotation

marks omitted.) Kaddah v. Commissioner of Correction, 299 Conn. 129, 137, 7 A.3d 911 (2010); see also

Practice Book § 23-22 (1) (‘‘[a] petition for a writ of

habeas corpus . . . shall state . . . the specific facts

upon which each specific claim of illegal confinement

is based and the relief requested’’). A reviewing court

is ‘‘not compelled to consider issues neither alleged

in the habeas petition nor considered at the habeas

proceeding . . . .’’ (Internal quotation marks omitted.)

Gaines v. Commissioner of Correction, 306 Conn. 664,

672 n.8, 51 A.3d 948 (2012). Appellate review of newly

articulated claims not raised before the habeas court

would amount to ‘‘an ambuscade of the [habeas] judge

. . . .’’ (Citation omitted; internal quotation marks

omitted.) Johnson v. Commissioner of Correction,

supra, 285 Conn. 580.

In the present case, the petitioner claimed in his petition and throughout the habeas proceeding that he was

deprived of his sixth amendmentright to effective assistance of counsel because of his counsel’s failure to

advise him of the virtually automatic deportation consequences of his plea, not because of a violation of his fifth

amendment due process rights. In fact, the petitioner

distinguished his sixth amendment claim of ineffective
assistance of counsel from a fifth amendment ‘‘ ‘knowing and voluntary’ ’’ claim raising due process concerns

in his pretrial memorandum and posttrial brief. Relying

on State v.Irala, supra, 68 Conn. App. 520, the petitioner

observed in a footnote to his posttrial brief that, ‘‘[i]n

the [f]ifth [a]mendment context, courts have not

required that a trial court advise a defendant as to the

precise immigration consequences of a plea in order to

find that the plea is ‘knowing and voluntary’ because

they have viewed immigration consequences as ‘collateral’ to the proceedings and the [f]ifth [a]mendment

requires only that a defendant be aware of all the direct

consequences of a plea.’’ (Emphasis omitted.) Consequently, the habeas court did not consider or decide

whether the petitioner’s plea was unintelligent, involuntary, and invalid. To the extent the habeas court discussed in its memorandum of decision whether counsel

provided the petitioner with ‘‘ ‘correct’ ’’ advice, it did

so in the context of the performance prong of Strickland and did not consider whether counsel gave the

petitioner gross misadvice that would have rendered

his plea unintelligent, involuntary, and invalid.

This court previously has stated that, ‘‘[o]nly in [the]

most exceptional circumstances can and will this court

consider a claim, constitutional or otherwise, that has

not been raised and decided in the trial court. . . . This

rule applies equally to alternate grounds for affirmance.

. . . New Haven v. Bonner, 272 Conn. 489, 498, 863

A.2d 680 (2005); see also Thomas v. West Haven, 249

Conn. 385, 390 n.11, 734 A.2d 535 (1999)([t]he appellee’s

right to file a [Practice Book] § 63-4 [a] [1] statement

has not eliminated the duty to have raised the issue in

the trial court . . .), cert. denied, 528 U.S. 1187, 120 S.

Ct. 1239, 146 L. Ed. 2d 99 (2000); Peck v. Jacquemin,

196 Conn. 53, 62 n.13, 491 A.2d 1043 (1985) (compliance

with [Practice Book § 63-4 (a) (1)] is not to be considered in a vacuum; particularly to be considered is its

linkage with [Practice Book § 60-5] which provides in

part that this court shall not be bound to consider a

claim unless it was distinctly raised at the trial or arose

subsequent to the trial). Such exceptional circumstances may occur where a new and unforeseen constitutional right has arisen between the time of trial and

appeal or where the record supports a claim that a

litigant has been deprived of a fundamental constitutional right and a fair trial. . . . An exception may also

be made where consideration of the question is in the

interest of public welfare or of justice between the

parties. . . . Lopiano v. Lopiano, 247 Conn. 356, 373,

752 A.2d 1000 (1998).’’(Footnotes omitted; internal quotation marks omitted.) Perez-Dickson v. Bridgeport,

304 Conn. 483, 498–500, 43 A.3d 69 (2012).

We conclude, as we did in Perez-Dickson; id., 501;

that there are no such exceptional circumstances in the

present case. First, no new and unforeseen right arose

under the federal constitution between the time of the
petitioner’s habeas trial and his appeal to this court

because the habeas trial was conducted in the spring

of 2012, two years after the ruling in Padilla was

announced. In addition, no new state constitutional

right arose during that period. Furthermore, consideration of the petitioner’s state law claim does not appear

to be in the interest of the public welfare or justice

between the parties because it pertains primarily to the

limited number of noncitizen criminal defendants who

filed habeas petitions between the years 2010 and 2013,

when Padilla and Chaidez, respectively, were decided.

Finally, the petitioner has failed to seek appellate

review of this issue pursuant to State v. Golding, 213

Conn. 233, 239–40, 567 A.2d 823 (1989). We therefore

decline to review this claim.

F

We similarly decline to review the petitioner’s claim

that his counsel’s performance was deficient because

he failed to pursue a substance abuse defense during

plea negotiations. Any such potential claim was waived

in the habeas court when the petitioner’s attorney stated

that the petitioner was not pursuing the drug dependency issue as an independent claim regarding his trial

counsel’s deficient performance and noted that it was

‘‘not an allegation in the petition.’’

The judgment is reversed and the case is remanded

to the habeas court with direction to render judgment

denying the amended petition for a writ of habeas

corpus.

In this opinion ROGERS, C. J., and ESPINOSA and

ROBINSON, Js., concurred.

1

In Padilla v. Kentucky, supra, 559 U.S. 360, the United States Supreme

Court concluded that defense counsel is constitutionally required to advise

a client who is not a United States citizen and who is charged with an

aggravated felony under federal law that deportation is virtually automatic.

The governing federal law on deportation is set forth in 8 U.S.C. § 1227

(a), which provides in relevant part: ‘‘Any alien . . . in and admitted to the

United States shall, upon the order of the Attorney General, be removed

if the alien is within one or more of the following classes of deportable

aliens . . .

‘‘(2) . . . (A) . . . (iii) Any alien who is convicted of an aggravated felony

at any time after admission . . . .’’

2 Although the petitioner did not present this argument as an alternative

ground for affirmance, we treat it as an alternative ground because resolution

of the issue does not require application of the rule in Padilla but, rather,

the rule in Strickland.

3 The petition stated that the petitioner sought relief under the ‘‘sixth and

fourteenth amendments to the United States constitution; article [first], [§§]

8 and 10, of the Connecticut constitution, [General Statutes §] 52-466 et seq.

and [Practice Book §] 23-21 et seq.’’

4 The respondent appealed from the judgment of the habeas court to the

Appellate Court, and we transferred the appeal to this court pursuant to

General Statutes § 51-199 (c) and Practice Book § 65-1.

5 The court in Padilla did not consider whether the defendant was prejudiced as a result of his counsel’s conduct under the second prong of Strickland, but, rather, left that matter for the Kentucky courts to decide. Padilla

v. Kentucky, supra, 559 U.S. 369.

6 The court noted that all ten federal appellate courts and the appellate

courts in almost thirty states had reached this conclusion. Chaidez v. United

States, supra, 133 S. Ct. 1108.

7 The respondent argues that the petitioner claimed in the habeas court
that Padilla satisfies the Teague test for retroactivity, and, therefore, this

court should not review his claim that it is not bound by Teague. The issue

of whether a Teague analysis is appropriate, however, was fully addressed

by the parties in their briefs to this court. The petitioner also relied on the

Teague test in his arguments before the habeas court, and the habeas court

applied Teague in its discussion of the retroactivity issue. Accordingly, the

applicability of Teague was an integral part of the habeas proceedings, and

the fact that the petitioner now takes a different position as to how Teague

applies does not negate our ability to review his claim. Cf. Crawford v.

Commissioner of Correction, 294 Conn. 165, 204, 982 A.2d 620 (2009) (to

entertain claim not raised in trial court would amount to trial by ambuscade,

practice in which this court will not engage).

8 The court in Teague identified ‘‘two exceptions to [this] 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.)

Teague v. Lane, supra, 489 U.S. 307. The court further explained that the

second exception should be reserved for ‘‘watershed rules of criminal procedure’’ that ‘‘implicate the fundamental fairness of the trial’’ and ‘‘without

which the likelihood of an accurate conviction is seriously diminished.’’ Id.,

311–13. Neither party claims that either exception applies in the present case.

9 Thus, contrary to JusticeEveleigh’s view, we ‘‘fully recognize’’the holding

in Danforth that states are not bound by Teague and that this court in

Luurtsema acknowledged that holding.

10 The fact that this court applied Teague in Duperry and Johnson long

before the release of Danforth does not mean that it was compelled to do

so, thus diminishing the precedential value or relevance of those cases, as

Justice Eveleigh claims in his dissent. There is absolutely no evidence that

this or any other state court assumed prior to Danforth that it was required

to apply Teague when considering the retroactive application of Padilla or

any other new constitutional rule of criminal procedure. Rather, state courts

have always exercised their independent judgments regarding the application of Teague in a nonfederal context. Some jurisdictions rejected Teague

many years before the release of Danforth; see, e.g., State v. Towery, 204

Ariz. 386, 393, 64 P.3d 828 (2003); Cowell v. Leapley, 458 N.W.2d 514, 518

(S.D. 1990); Labrum v. State Board of Pardons, 870 P.2d 902, 912–13 (Utah

1993); Farbotnik v. State, 850 P.2d 594, 601–602 (Wyo. 1993); one jurisdiction

adopted a modified version of Teague before the publication of Danforth;

see Colwell v. State, 118 Nev. 807, 819, 59 P.3d 463 (2002); and still other

jurisdictions adopted Teague following the publication of Danforth, despite

the reference in Danforth to the fact that state courts need not be bound

by Teague. See, e.g., In re Gomez, 45 Cal. 4th 650, 656, 199 P.3d 574, 88 Cal.

Rptr. 3d 177 (2009); Gathers v. United States, 977 A.2d 969, 972 (D.C. 2009);

Alford v. State, 287 Ga. 105, 107, 695 S.E.2d 1 (2010); Perez v. State, 816

N.W.2d 354, 358 (Iowa 2012); State v. Tate, 130 So. 3d 829, 834–35 (La. 2013);

Kersey v. Hatch, 148 N.M. 381, 386, 237 P.3d 683 (2010); State v. Bishop,

Ohio St. 3d , 7 N.E.3d 605, 610 (2014); Bush v. State, 428 S.W.3d 1,

20 (Tenn. 2014); Ex parte De Los Reyes, 392 S.W.3d 675, 679 (Tex. Crim.

App. 2013); In re Gentry, 179 Wn. 2d 614, 627–28, 316 P.3d 1020 (2014).

Accordingly, it is incorrect to suggest that before the release of Danforth

state courts believed that they were compelled to apply Teague and that

they rushed to reject Teague following the release of Danforth. The more

accurate conclusion is that state courts that applied Teague before Danforth

did so because Teague provided them with valuable guidance that produced

consistent results. Duperry and Johnson thus remain good precedent in

this state that we may consider when determining whether Teague should

be abandoned as a rule of general applicability.

11 See In re Gomez, 45 Cal. 4th 650, 654–55, 199 P.3d 574, 88 Cal. Rptr.

3d 177 (2009); Edwards v. People, 129 P.3d 977, 983 (Colo. 2006); Flamer

v. State, 585 A.2d 736, 749 (Del. 1990); Gathers v. United States, 977 A.2d

969, 972 (D.C. 2009); Alford v. State, 287 Ga. 105, 106–107, 695 S.E.2d 1

(2010); State v. Jess, 117 Haw. 381, 424, 184 P.3d 133 (2008); People v.

Flowers, 138 Ill. 2d 218, 239–40, 561 N.E.2d 674 (1990); Daniels v. State, 561

N.E.2d 487, 489 (Ind. 1990); Perez v. State, 816 N.W.2d 354, 358 (Iowa

2012); State v. Neer, 247 Kan. 137, 142–43, 795 P.2d 362 (1990); Bowling v.

Commonwealth, 163 S.W.3d 361, 370 (Ky. 2005); State v. Tate, 130 So. 3d

829, 834 (La. 2013); Carmichael v. State, 927 A.2d 1172, 1176–81 (Me. 2007);
State v. Houston, 702 N.W.2d 268, 270 (Minn. 2005); Manning v. State, 929

So. 2d 885, 897 (Miss. 2006); State v. Egelhoff, 272 Mont. 114, 125–26, 900

P.2d 260 (1995); State v. Reeves, 234 Neb. 711, 750, 453 N.W.2d 359 (1990);

State v. Tallard, 149 N.H. 183, 186–87, 816 A.2d 977 (2003); State v. Purnell,

161 N.J. 44, 64, 735 A.2d 513 (1999); Kersey v. Hatch, 148 N.M. 381, 383,

237 P.3d 683 (2010); People v. Baret, Court of Appeals, Docket No. 105, 2014

N.Y. Slip Op. 04872, 2014 WL 2921420, *12 (N.Y. June 30, 2014); State v.

Zuniga, 336 N.C. 508, 513, 444 S.E.2d 443 (1994); State v. Bishop, Ohio

St. 3d , 7 N.E.3d 605, 610 (Ohio 2014); Burleson v. Saffle, 46 P.3d 150,

151 (Okla. Crim. App. 2002); Page v. Palmateer, 336 Or. 379, 387–88, 84 P.3d

133 (2004); Commonwealth v. Hughes, 581 Pa. 274, 306–307, 865 A.2d 761

(2004); Pierce v. Wall, 941 A.2d 189, 195 (R.I. 2008); Talley v. State, 371 S.C.

535, 541, 640 S.E.2d 878 (2007); Bush v. State, 428 S.W.3d 1, 20 (Tenn. 2014);

Ex parte De Los Reyes, 392 S.W.3d 675, 679 (Tex. Crim. App. 2013); State

v. White, 182 Vt. 510, 517–18, 944 A.2d 203 (2007); Mueller v. Murray, 252

Va. 356, 361–66, 478 S.E.2d 542 (1996); In re Gentry, 179 Wn. 2d 614, 627–28,

316 P.3d 1020 (2014); State v. Lo, 264 Wis. 2d 1, 33–34, 665 N.W.2d 756 (2003).

12 To the extent that Justice Eveleigh in his dissent dismisses these cases

because of perceived deficiencies in their substantive analysis, he misses

the point that they 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. We also disagree with Justice Eveleigh’s

assumption in footnote 1 of his dissenting opinion that ‘‘the majority of the

individuals with convictions similar to the petitioner’s would likely already

have been deported . . . .’’ There is no evidence in the record as to how

many convicted offenders who are now serving prison sentences inConnecticut will be subject to deportation upon their release. Accordingly, there is

no support for Justice Eveleigh’s assumption.

13 Contrary to the respondent’s suggestion, this claim was raised sufficiently in the amended petition for a writ of habeas corpus when the petitioner alleged that his trial counsel’s representation ‘‘fell below the standard

of reasonably competent counsel in the practice of criminal law in the state

of Connecticut at the time of [the] petitioner’s plea and conviction.’’

14 General Statutes § 54-1j (a) provides: ‘‘The court shall not accept a plea

of guilty or nolo contendere from any defendant in any criminal proceeding

unless the court first addresses the defendant personally and determines

that the defendant fully understands that if the defendant is not a citizen

of the United States, conviction of the offense for which the defendant has

been charged may have the consequences of deportation or removal from

the United States, exclusion from readmission to the United States or denial

of naturalization, pursuant to the laws of the United States. If the defendant

has not discussed these possible consequences with the defendant’s attorney, the court shall permit the defendant to do so prior to accepting the

defendant’s plea.’’

15 Practice Book § 39-19 provides: ‘‘The judicial authority shall not accept

the plea without first addressing the defendant personally and determining

that he or she fully understands:

‘‘(1) The nature of the charge to which the plea is offered;

‘‘(2) The mandatory minimum sentence, if any;

‘‘(3) The fact that the statute for the particular offense does not permit

the sentence to be suspended;

‘‘(4) The maximum possible sentence on the charge, including, if there

are several charges, the maximum sentence possible from consecutive sentences and including, when applicable, the fact that a different or additional

punishment may be authorized by reason of a previous conviction; and

‘‘(5) The fact that he or she has the right to plead not guilty or to persist

in that plea if it has already been made, and the fact that he or she has the

right to be tried by a jury or a judge and that at that trial the defendant has

the right to the assistance of counsel, the right to confront and cross-examine

witnesses against him or her, and the right not to be compelled to incriminate

himself or herself.’’

16 Justice Palmer contends in his dissent that the Connecticut case law

on which we rely was not binding precedent at the time of the petitioner’s

plea because it did not address what is constitutionally required of trial

counsel under the sixth amendment, but, rather, addressed only ‘‘what is

required of the trial court when canvassing a defendant to ensure that a

plea is voluntary under the fifth amendment.’’ (Emphasis in original.) We

disagree. In each of the cited cases, the reviewing court determined that trial

courts are not constitutionally required under § 54-1j to advise defendants of

the deportation consequences of a guilty plea because deportation is not a
direct consequence of a plea under Practice Book § 39-19. See State v.

Malcolm, supra, 257 Conn. 663 n.12 (immigration and naturalization consequences of guilty plea not of constitutional magnitude because statutory

mandate of § 54-1j cannot transform collateral consequences of deportation

into direct consequences of plea under Practice Book § 39-19); State v.

Andrews, supra, 253 Conn. 507 and n.8 (trial courts not constitutionally

required to advise defendants of immigration consequences of guilty plea

under § 54-1j because they are not direct consequences of plea under Practice

Book § 39-19); State v. Irala, supra, 68 Conn. App. 520 (same). This is

significant because the petitioner specifically argues, citing State v. Hall,

303 Conn. 527, 35 A.3d 237 (2012), that Padilla was not a new rule in

Connecticut because the existence and application of § 54-1j provided evidence that the established professional norm in this state at the time he

entered his plea was for counsel to give defendants accurate advice regarding

the deportation consequences of a plea. The court in Hall explained, however, that when § 54-1j was amended in 2003 to require counsel to discuss

with defendants the immigration consequences of a plea, ‘‘the legislature

was primarily concerned with ensuring that defendants engage in a conversation with their counsel, not the court, regarding the immigration consequences of guilty pleas.’’ (Emphasis omitted.) Id., 536. Thus, as the court

in Hall observed, the purpose of the statute of warning defendants about

the possible immigration consequences of a guilty plea remained the same;

id., 535; and the fact that the 2003 amendment required counsel, instead of

the court, to advise defendants of these consequences did not change the

underlying and more general conclusion in Malcolm, Andrews and Irala

that advising defendants of the immigration and deportation consequences

of a plea was not constitutionally required under § 54-1j.

17 This conclusion also disposes of the petitioner’s argument that this

court should apply Padilla retroactively because Connecticut historically

has given special solicitude to the right to counsel and should continue to

uphold that tradition in the present case.

18 Although the court in Teague did not find it necessary to define the

meaning of a rule, it is clear that the court was referring to a constitutional

rule of criminal procedure issued by a court that would be used as a guiding

principle in future cases. Thus, the court repeatedly referred to the fact that

new rules are ‘‘announced’ or ‘‘promulgated’’ only in specific cases; Teague

v. Lane, supra, 489 U.S. 300–304; and that a case does not announce a new

rule if the result is dictated by ‘‘precedent’’; id., 301; or by the application

of a principle that governed a past decision. Id., 307; see also Chaidez v.

United States, supra, 133 S. Ct. 1107.

19 We also disagree with Justice Eveleigh’s determination in his dissenting

opinion that Connecticut should adopt a ‘‘modified’’ version of the Teague

test similar to the tests adopted in Nevada and Idaho. In Colwell v. State,

118 Nev. 807, 819, 59 P.3d 463 (2002), the Nevada Supreme Court adopted

the general framework of Teague but reserved its prerogative ‘‘to define

and determine within this framework whether a rule is new and whether

it falls within the two exceptions to nonretroactivity . . . .’’ The court

defined the criteria for determining whether a rule is new as whether the

rule ‘‘[1] overrules precedent, or [2] disapprove[s] a practice [the] [c]ourt

had arguably sanctioned in prior cases, or [3] overturns a longstanding

practice that lower courts had uniformly approved.’’ (Footnote omitted;

internal quotation marks omitted.) Id., 819–20. It then adopted a broadened

version of the two exceptions in Teague to the general requirement that

new rules are not retroactive, stating that a new rule may be applied retroactively: ‘‘(1) if the rule establishes that it is unconstitutional to proscribe

certain conduct as criminal or to impose a type of punishment on certain

defendants because of their status or offense; or (2) if it establishes a

procedure without which the likelihood of an accurate conviction is seriously

diminished.’’ Id., 820. The court noted that, unlike in Teague, it did ‘‘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, [it did] 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.’’ Id. The Idaho

Supreme Court also adopted a modified version of the Teague framework,

concluding that, ‘‘in the future, the decisions 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 ourlong-standing jurisprudence.’ ’’ Rhoades

v. State, 149 Idaho 130, 139, 233 P.3d 61 (2010), cert. denied, U.S. ,

131 S. Ct. 1571, 179 L. Ed. 2d 477 (2011). The Idaho Supreme Court, however,

specifically rejected the Nevada Supreme Court’s broadening of the two

exceptions to the nonretroactivity of a new rule under Teague. Id., 139 n.2.
JusticeEveleigh is persuaded by this reasoning and suggests thatConnecticut also should adopt a modified version of the Teague test and, in deciding

whether to give retroactive effect to a new constitutional rule, ‘‘should

exercise independent judgment on the basis of the unique requirements of

our state constitution, judicial precedents and statutory framework.’’ He

further suggests that, ‘‘if the [accuracy and] fundamental fairness of a trial

or plea is seriously diminished without the rule, the rule is significant enough

to warrant retroactive application.’’ We disagree.

We first note that Justice Eveleigh’s proposed ‘‘modification’’ of Teague

does not appear to involve any change in the rule itself, but, rather, would

allow a more liberal application of its second exception, which is reserved

under Teague v. Lane, supra, 489 U.S. 288, for ‘‘watershed rules of criminal

procedure’’; id., 311; that ‘‘implicate the fundamental fairness of the trial’’;

id., 312; and ‘‘without which the likelihood of an accurate conviction is

seriously diminished.’’ Id., 313; see footnote 8 of this opinion. In other words,

instead of disavowing Teague, Justice Eveleigh states that this court should

adopt the principles of Teague but ‘‘exercise independent judgment on the

basis ofthe unique requirements of our state constitution, judicial precedents

and statutory framework’’ in implementing the fundamental fairness and

accuracy elements of the second exception of Teague. Regardless of how

Justice Eveleigh’s approach is characterized, it virtually swallows the exception because it allows the court to decide whether a constitutionalrule 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. In the present case, this results in elevating

§ 54-1j, which provides that the court must ask whether a defendant fully

understands the deportation consequences of a proposed guilty plea and

whether he has discussed these possible consequences with his attorney;

see footnote 14 of this opinion; to the status of a constitutional requirement,

even though this court had concluded before Padilla that advising a defendant ofthe deportation consequences of a guilty plea was not constitutionally

required. See our previous discussion herein. It also opens the door to

claims that the directives of other statutes are constitutional requirements

in contexts other than the conduct of attorneys.

Justice Eveleigh’s approach resembles the more liberal approach previously followed by federal courts but abandoned in Teague for lack of

consistent results. The United States Supreme Court’s modern retroactivity

jurisprudence began with a pair of cases in the 1960s that gave birth to the

Linkletter-Stovall test. See Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18

L. Ed. 2d 1199 (1967); Linkletter v. Walker, 381 U.S. 618, 85 S. Ct. 1731, 14

L. Ed. 2d 601 (1965). Under that test, federal courts determined whether to

apply a new constitutional rule of criminal procedure retroactively on a

case-by-case basis by considering three factors: (1) the purpose of the new

rule; (2) the extent to which law enforcement authorities relied on the old

rule; and (3) the effect that applying the new rule retroactively would have

on the administration of justice. Stovall v. Denno, supra, 297. While the

Linkletter-Stovall test allowed courts flexibility in determining a new rule’s

retroactive effect, the test ultimately led to inconsistent and unpredictable

results. See Desist v. United States, 394 U.S. 244, 257–58, 89 S. Ct. 1030, 22

L. Ed. 2d 248 (1969) (Harlan, J., dissenting); State v. Zuniga, 336 N.C. 508,

511–12, 444 S.E.2d 443 (1994). The approach proposed by Justice Eveleigh,

although not identical to the Linkletter-Stovall test, is subject to a similar

weakness because it permits an overly broad interpretation of ‘‘fundamental

fairness.’’ Just as the great majority of states have largely followed Teague

in their own postconviction proceedings rather than fashioning a different

rule or broadening the two exceptions, we also conclude that the Teague

test, and its exceptions, as articulated in that case, represent an appropriate

and workable solution to the problem of when to apply a new constitutional

rule of criminal procedure retroactively.

Finally, insofar as Justice Eveleigh determines that this court should give

retroactive effect to the rule in Padilla under the second Teague exception,

we note that neither party made such a claim on appeal to this court. The

respondent claimed that the judgment should be reversed because Padilla

announced a new rule that applied prospectively in Connecticut. In reply,

the petitioner argued in part that the rule in Padilla should be applied

retroactively because it was not a new rule in Connecticut. Neither party

argued that the rule was new but applied retroactively under the second

Teague exception, nor did the trial court decide the issue on that ground.

The trial court determined that the rule in Padilla applied retroactively

because it was not a new rule under federal or state law. Accordingly, this

court is not empowered to address the retroactive application of the rule

in Padilla under the second Teague exception.

20 Although the petitioner does not characterize this as a due process

claim, the cases he cites in arguing that ‘‘Connecticut courts have made
clear that to be valid, a guilty plea must be intelligent, voluntary and knowing,’’ refer to an unknowing, unintelligent, and involuntary plea as a due

process violation. See State v. Gilnite, 202 Conn. 369, 381–82, 521 A.2d 547

(1987) (‘‘A plea of guilty . . . involves the waiver of several fundamental

constitutional rights and therefore must be knowingly and voluntarily

entered so as not to violate due process. . . . Thus, for a plea to be valid,

the record must affirmatively disclose that the defendant understands the

nature of the charge upon which the plea is entered . . . .’’ [Citations omitted; footnotes omitted.]); Sherbo v. Manson, 21 Conn. App. 172, 178–79, 572

A.2d 378 (‘‘A guilty plea, which is itself tantamount to conviction, may be

accepted by the court only when it is made knowingly, intelligently, and

voluntarily. . . . A guilty plea otherwise obtained is in violation of due

process and voidable.’’ [Citation omitted.]), cert. denied, 215 Conn. 808, 809,

576 A.2d 539, 540 (1990).