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ANTHONY DYOUS v. COMMISSIONER

OF MENTAL HEALTH AND

ADDICTION SERVICES

(SC 19582)

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

Robinson, Js.

Argued September 14—officially released December 22, 2016*

David J. Reich, for the appellant (petitioner).

James A. Killen, senior assistant state’s attorney,

with whom, on the brief, were Peter A. McShane, state’s

attorney, and Jo Anne Sulik, supervisory assistant

state’s attorney, for the appellee (respondent).
Opinion

ROBINSON, J. The petitioner, Anthony Dyous,

appeals1

from the judgment of the habeas court denying

his petition for a writ of habeas corpus, in which he

sought immediate release from the custody of the

respondent, Commissioner of Mental Health and Addiction Services. On appeal, the petitioner contends, inter

alia, that the habeas court improperly determined that:

(1) in Duperry v. Solnit, 261 Conn. 309, 803 A.2d 287

(2002), this court considered the issue of whether a

plea of not guilty by reason of mental disease or defect

must be knowing and voluntary and, further, that

Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L.

Ed. 2d 334 (1989), bars this claim for habeas relief;

and (2) his criminal trial attorney rendered effective

assistance of counsel by failing to research the law

surrounding the defense of mental disease or defect and

failing to inform the petitioner of the court’s authority to

extend his commitment beyond the maximum twentyfive year sentence. We disagree with the petitioner’s

claims and, therefore, affirm the judgment of the

habeas court.

The record reveals the following relevant facts and

procedural history. In December, 1983, the petitioner

hijacked a bus carrying forty-seven people by stating

that he was armed with a bomb and nerve gas. Once

on the bus, the petitioner ordered the bus driver to

drive to a bank. After moving some of the passengers

from the bus into the bank, the petitioner held them

hostage. He then contacted the state police to demand

that he speak with a news reporter so that he could be

interviewed regarding a perceived threat to national

security. The petitioner then allowed the passengers to

leave the bank unharmed, and police officers entered

the bank and arrested him without further incident.

The state charged the petitioner with two counts of

kidnapping in the first degree in violation of General

Statutes (Rev. to 1983) § 53a-92 (a) (1), two counts of

threatening in the second degree in violation of General

Statutes (Rev. to 1983) § 53a-62 (a) (1), and one count

of carrying a dangerous weapon in violation of General

Statutes (Rev. to 1983) § 53-206 (a). The petitioner, represented by counsel, pleaded not guilty to all charges.

He then filed a notice of his intention to assert a defense

of mental disease or defect. The petitioner was tried

before the court on November 2, 1984, in a nonadversarial proceeding during which neither party challenged

the other’s case. After the proceeding, the court rendered a judgment that acquitted the petitioner of all

offenses on the basis of mental disease or defect and

committed the petitioner to the custody of the respondent for a period not to exceed twenty-five years. The

respondent later transferred custody of the petitioner

to the jurisdiction of the Psychiatric Security Review

Board (board) in accordance with General Statutes
§ 17a-602.

Since his initial confinement, despite multiple unsuccessful challenges, the petitioner has remained committed to the custody of the board for more than twentyfive years.2 To challenge his extended confinement, the

petitioner filed a petition for habeas corpus. Following

the appointment of habeas counsel, the petitioner filed

a revised amended petition, through which he raised

two claims relevant to this appeal: (1) his pursuit of a

defense based on mental disease or defect was not

knowing and voluntary, in violation of his due process

rights, because he believed that he could not be confined involuntarily beyond a maximum period of

twenty-five years; and (2) trial defense counsel was

ineffective by failing to research the law and advise the

petitioner that he could be confined involuntarily for

more than twenty-five years in the event he was found

not guilty by reason of mental disease or defect.3

The habeas court denied the petitioner’s petition for

a writ of habeas corpus. In its thoughtful and comprehensive memorandum of decision, the court concluded

that: (1) the petitioner’s claim that his plea of not guilty

by reason of mental disease or defect was not knowing

and voluntary was barred by Duperry v. Solnit, supra,

261 Conn. 309, and in any event was barred procedurally

by Teague v. Lane, supra, 489 U.S. 288; and (2) the

petitioner failed to prove that his criminal trial counsel

was constitutionally ineffective under either of the deficient performance or prejudice prongs of Strickland v.

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

Ed. 2d 674 (1984).4 The petitioner filed a petition for

certification to appeal, which the habeas court granted.

This appeal followed. Additional facts and procedural

history will be set forth as necessary.

I

We begin with the petitioner’s assertion that the

habeas court incorrectly determined that Duperry v.

Solnit, supra, 261 Conn. 309, and Teague v. Lane, supra,

489 U.S. 288, precluded his claim that his plea of not

guilty by reason of mental disease or defect was not

knowing and voluntary. This claim presents a question

of law over which our review is plenary. See, e.g., Washington v. Commissioner of Correction, 287 Conn. 792,

799–800, 950 A.2d 1220 (2008).

A

Because they set the legal stage for the petitioner’s

claim, we review Duperry v. Solnit, supra, 261 Conn.

309, and the federal district court’s decision in Duperry

v. Kirk, 563 F. Supp. 2d 370 (D. Conn. 2008), which

involve the same petitioner, Adam Duperry, and arise

from the same underlying set of facts. In Duperry v.

Solnit, supra, 311, this court considered whether the

habeas court ‘‘improperly established a new constitutional rule in a collateral proceeding in contravention
of the principle announced in Teague v. Lane, [supra,

489 U.S. 288], by concluding that a criminal defendant

who pleads not guilty with the affirmative defense of

mental disease or defect must be canvassed as though

he is pleading guilty to ensure that his plea is made

knowingly and voluntarily . . . .’’5

(Footnote omitted.)

We engaged in a Teague analysis of whetherthe canvass

issue was procedurally barred and ultimately held,

‘‘with respect to the plea canvass, that the habeas court

improperly declared and applied a new constitutional

rule in contravention of the principle enunciated in

Teague.’’6 Duperry v. Solnit, supra, 312. Thus, we

reversed the habeas court’s judgment, which originally

had granted Duperry’s petition for a writ of habeas

corpus. Id.

Duperry subsequently filed a habeas petition in federal court to challenge his confinement. Duperry v.

Kirk, supra, 563 F. Supp. 2d 370. In Kirk, the United

States District Court for the District of Connecticut

considered whether Duperry’s claim that his plea was

not entered knowingly and voluntarily and his canvass

claim were doctrinally separate and distinct. See Id.,

382–83. The court separated the two counts in Duperry’s

federal petition and determined that each was based

on a unique ground. Id., 383–84. The court observed

that, ‘‘[t]he canvass rule helps ensure that a plea is

knowing, voluntary and intelligent, but the requirement

that plea be knowing, voluntary and intelligent represents an independent constitutional imperative, regardless whether the specific canvass rule is required.’’

(Emphasis in original.) Id., 384. After determining that

Duperry had raised two separate claims in his petition,

the federal court analyzed whether this court had

reached and decided the merits of both claims in Solnit,

in order to determine whether the federal court owed

deference to this court’s adjudication of Duperry’s

claims. Id.

The federal court analyzed, in great depth, footnote

7 in this court’s opinion in Solnit, which stated: ‘‘In

light of our conclusion, we do not address whether the

substance of the habeas court’s holding was proper,

i.e., whether the principle of Boykin v. Alabama, [395

U.S. 238, 242–44, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969)],

that due process requires a plea of guilty to be knowing

and voluntary, applies equally to a plea of not guilty by

reason of mental disease or defect.’’ Duperry v. Solnit,

supra, 261 Conn. 326 n.7. The federal court read this

footnote to mean that we ‘‘expressly declined to decide

that issue.’’ Duperry v. Kirk, supra, 563 F. Supp. 2d

383. Thus, it held that, with respect to Duperry’s claim

regarding the knowing and voluntary nature of his plea,

it owed no deference to this court’s prior decision and

noting that, ‘‘[b]ecause [Solnit] did not reach the merits

of the [claim regarding Duperry’s plea] the de novo

standard of review applie[d].’’ Id., 384.
In the present appeal, the petitioner claims that the

federal court’s interpretation of Duperry v. Solnit,

supra, 261 Conn. 309, in Duperry v. Kirk, supra, 563 F.

Supp. 2d 383, controls. He contends that the habeas

court improperly analyzed footnote 7 in Solnit and,

instead, advocates in support of the reasoning in Kirk

that this court failed to address the claim regarding

Duperry’s plea in Solnit. See Duperry v. Kirk, supra,

383. In response, the respondent claims that the habeas

court properly concluded that the claim regarding the

knowing and voluntary nature of Duperry’s plea is precluded by Solnit, as this court considered both the claim

regarding Duperry’s plea and his canvass claim. The

respondent further contends that the federal court’s

decision in Kirk is a misinterpretation of state law.

Regardless of whetherthis court considered the claim

regarding Duperry’s plea in Solnit, the petitioner’s claim

in the present case still fails. Assuming, without deciding, that the federal district court correctly determined

in Kirk that this court did not consider the claim regarding Duperry’s plea; see Duperry v. Solnit, supra, 261

Conn. 326 n.7; the claim regarding the knowing and

voluntary nature of the petitioner’s plea in the present

appeal nevertheless is barred by Teague v. Lane, supra,

489 U.S. 288.

B

With respect to Teague v. Lane, supra, 489 U.S. 288,

the petitioner claims that the habeas court improperly

determined that the claim regarding the knowing and

voluntary nature of his plea was barred because that

claim did notrequire the habeas court to establish a new

constitutional rule of criminal procedure in a collateral

proceeding. He relies on Boykin v. Alabama, supra, 395

U.S. 238, which held that guilty pleas must be knowing

and voluntary to comport with the due process clause

of the fourteenth amendment to the United States constitution. Relying on Duperry v. Kirk, supra, 563 F.

Supp. 2d 385–86, the petitioner claims that the Boykin

principle extends to defenses based on mental disease

or defect. Thus, the petitioner contends that it was well

established at the time of his plea that the election

to pursue an affirmative defense of mental disease or

defect, like a decision to plead guilty, had to be knowing

and voluntary. The petitioner asserts that, because this

rule was well established at the time he entered his plea,

the habeas court would not have needed to establish a

new constitutional rule of criminal procedure to grant

relief on his claim. The petitioner asserts, rather, that

the habeas court need only apply Boykin to the facts

of the present case. Further, the petitioner claims that,

even if the relief he sought required the habeas court

to establish a new procedural rule, that rule falls within

the watershed exception set forth in Teague v. Lane,

supra, 311–13, and, as such, is not procedurally barred.7

Finally, the petitioner claims that, because this court
may consider the merits of his claim, it should hold

that his plea of not guilty by reason of mental disease

or defect was not made knowingly and voluntarily and,

thus, order his release.

In response, the respondent contends that the habeas

court, relying on Duperry v. Solnit, supra, 261 Conn.

318–26, properly determined that the petitioner’s claim

regarding the knowing and voluntary nature of his plea

was barred by Teague v. Lane, supra, 489 U.S. 288. In

support of that contention, the respondent argues that

no established precedent in existence at the time of the

petitioner’s trial required a plea of not guilty by reason

of mental disease or defect to be knowing and voluntary

as a matter of constitutional law, including United

States v. Brown, 428 F.2d 1100 (D.C. Cir. 1970), and

Miller v. Angliker, 848 F.2d 1312 (2d Cir.), cert. denied,

488 U.S. 890, 109 S. Ct. 224, 102 L. Ed. 2d 214 (1988),

on which the federal court relied in Duperry v. Kirk,

supra, 563 F. Supp. 2d 376–77. As such, the respondent

claims that affording habeas relief would require the

habeas court to create, and apply retroactively, a new

constitutional rule of criminal procedure in contravention of Teague. We agree with the respondent and conclude that Teague bars the claim relating to the

petitioner’s plea. We further hold that this rule does

not fall within the ‘‘watershed exception’’ to Teague.

8

When considering the potential retroactive application of a new rule of constitutional criminal procedure,

we apply the rule of Teague v. Lane, supra, 489 U.S.

288. See Thiersaint v. Commissioner of Correction,

316 Conn. 89, 103–106, 111 A.3d 829 (2015). Although

not mandated to do so under the federal constitution;

see Danforth v. Minnesota, 552 U.S. 264, 282, 128 S.

Ct. 1029, 169 L. Ed. 2d 859 (2008); we continue to follow

the Teague analysis because it provides a framework

for consistent results, and furthers the state’s interest

in fairness, due process, and finality of convictions.

Thiersaint v. Commissioner of Correction, supra, 111–

12. In Teague, the United States Supreme Court held

that new constitutional rules of criminal procedure

should not be established in or applied to collateral

proceedings, including habeas corpus proceedings.

Teague v. Lane, supra, 315–16. A rule is considered to

be ‘‘new’’ ‘‘when it breaks new ground or imposes a

new obligation on the [s]tates or the [f]ederal [g]overnment. . . . To put it differently, a case announces a

new rule if the result was not dictated by precedent

existing at the time the defendant’s conviction became

final.’’ (Citations omitted; emphasis omitted.) Id., 301.

Further, ‘‘a holding is not so dictated . . . unless it

would have been apparent to all reasonable jurists.’’

(Internal quotation marks omitted.) Chaidez v. United

States, U.S. , 133 S. Ct. 1103, 1107, 185 L. Ed.

2d 149 (2013). On the other hand, ‘‘Teague also made

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

it [is] merely an application of the principle that gov-
erned a prior decision to a different set of facts.’’

(Emphasis in original; internal quotation marks omitted.) Id.

This court has further explained what constitutes a

new rule for Teague purposes, observing that:

‘‘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 courtrepeatedly referred to the fact that new rules are ‘announced’

or ‘promulgated’ only in specific cases . . . and that a

case does not announce a new rule if the result is

dictated by ‘precedent’ . . . or by the application of

a principle that governed a past decision.’’ (Citations

omitted.) Thiersaint v. Commissioner of Correction,

supra, 316 Conn. 122 n.18.

The first step in our Teague analysis is to determine

whether the habeas court in the present case could

have afforded the petitioner relief based on established

jurisprudence governing his claim that his plea of not

guilty by reason of mental disease or defect should be

vacated because he had not elected it knowingly and

voluntarily, or whether affording such relief would have

required the court to establish a new constitutional rule

of criminal procedure. An analysis of the precedent

existing at the time ofthe petitioner’s trial in 1984 makes

clear that no rule existed at that time that would have

compelled the trial court to ensure that the petitioner’s

plea was knowing and voluntary. The case in existence

at that time and most closely related to the present

case, upon which the petitioner heavily relies, is Boykin

v. Alabama, supra, 395 U.S. 242–44, in which the United

States Supreme Court held that all guilty pleas must be

made knowingly and voluntarily, as a defendant pleading guilty waives important constitutional rights. The

court stated in Boykin that ‘‘[s]everal federal constitutional rights are involved in a waiver that takes place

when a plea of guilty is entered in a state criminal trial.

First, is the privilege against compulsory self-incrimination guaranteed by the [f]ifth [a]mendment [to the

United States constitution] and applicable to the [s]tates

by reason of the [f]ourteenth [amendment]. . . . Second, is the right to trial by jury. . . . Third, is the right

to confront one’s accusers.’’ (Citations omitted.) Id.,

243. For a waiver of such rights ‘‘to be valid under

the [d]ue [p]rocess [c]lause, it must be an intentional

relinquishment or abandonment of a known right or

privilege.’’ (Internal quotation marks omitted.) McCarthy v. United States, 394 U.S. 459, 466, 89 S. Ct. 1166,

22 L. Ed. 2d 418 (1969).

Because the petitioner adopts much of the federal

court’s reasoning in Kirk in support of his claim that

Boykin governs pleas of not guilty by reason of mental

disease or defect, we continue our Teague analysis with
a review of Kirk. As stated previously, the federal court

considered the claim regarding the knowing and voluntary nature of Duperry’s plea de novo, after holding

that this court did not reach the merits of that claim

in Duperry v. Solnit, supra, 261 Conn. 326 n.7. See

Duperry v. Kirk, supra, 563 F. Supp. 2d 382–83. The

federal court then held—without significant analysis—

that the claim regarding Duperry’s plea raised no new

rule of constitutional criminal procedure that would

bring it under Teague. See id., 383 (‘‘The strategic value

of characterizing both [c]ounts . . . as raising a claim

based on the failure of the trial court to canvass [Duperry] is obvious. The canvass claim is subject to strong

arguments that it is barred by Teague. . . . Those disadvantages do not attach to a claim that [Duperry’s]

plea was not knowing, voluntary and intelligent,

because such a claim raises no new rule of law that

would bring it under Teague, and [Solnit] expressly

declined to decide that issue.’’ [Emphasis omitted.]).

In considering whether a plea of not guilty by reason

of mental disease or defect that is not knowing or voluntary violates a defendant’s due process rights, the federal court first discussed the Supreme Court’s holding

in Boykin v. Alabama, supra, 395 U.S. 238, that all guilty

pleas must be knowing and voluntary to comport with

due process. Duperry v. Kirk, supra, 563 F. Supp. 2d

385–86. It then noted the similarities between guilty

pleas and pleas of not guilty by reason of mental disease

or defect, citing both Miller v. Angliker, supra, 848 F.2d

1312, and United States v. Brown, supra, 428 F.2d 1100,

and ultimately concluding that Brown was ‘‘persuasive

on the issue whether the constitutional principle that

a guilty plea must be made knowingly and voluntarily

applies equally to [pleas of not guilty by reason of mental disease or defect].’’ Duperry v. Kirk, supra, 386–88.

Finally, the federal court held that, ‘‘[b]ecause . . .

pleas [of not guilty by reason of mental disease or

defect] impose the consequence of involuntary confinement and operate as waivers of important constitutional

trial rights in the same way that guilty pleas do, the

longstanding constitutional principles that obligate

guilty pleas to be made knowingly, intelligently, and

voluntarily, attach with equal force to [pleas of not

guilty by reason of mental disease or defect].’’ Id., 388.

Thus, the federal court granted Duperry relief, as it

determined that his plea was not knowing or voluntary,

as required by the court’s application of Boykin.

We disagree with the petitioner’s reliance on the federal court’s analysis of the claim regarding Duperry’s

plea, including its conclusion that the claim was not

barred by Teague.

9

In contrast, we conclude that, in the

present case, it was not clearly established at the time

of the petitioner’s plea that Boykin applied to pleas of

not guilty by reason of mental disease or defect, such

that a trial court would have been compelled to ensure

that the petitioner’s plea was knowing and voluntary.
Specifically, the federal court’s holding that Boykin

extends to pleas of not guilty by reason of mental disease or defect relies solely on Miller v. Angliker, supra,

848 F.2d 1312, and United States v. Brown, supra, 428

F.2d 1100, neither of which are applicable to the present

case. We turn first to Miller. That case was decided

in 1988 and as such, did not exist at the time of the

petitioner’s plea in 1984 for the purposes of our Teague

analysis. Miller v. Angliker, supra, 1312.10 Further, as

a decision of the United States Court of Appeals for the

Second Circuit, Miller was not binding on Connecticut

state courts and, thus, the trial court was not bound

by that decision. Saffle v. Parks, 494 U.S. 484, 488, 110

S. Ct. 1257, 108 L. Ed. 2d 415 (1990). Even if Miller had

existed at the time of the petitioner’s plea in 1984, and

was binding authority on the trial court, on its merits,

the case nevertheless does not support the petitioner’s

claims. In Miller, the petitioner contested his detention

alleging, inter alia, that the state had withheld exculpatory information in violation of Brady v. Maryland, 373

U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). See

Miller v. Angliker, supra, 1317. Although the Second

Circuit analyzed the similarities between pleading guilty

and pleading not guilty by reason of mental disease or

defect, the court’s holding that Brady is ‘‘also applicable

where the defendant has pleaded not guilty by reason

of insanity’’; id., 1320; does not establish squarely that

a trial court must ensure that a defendant’s plea of not

guilty by reason of mental disease or defect is knowing

and voluntary.

Turning next to United States v. Brown, supra, 428

F.2d 1100, as an initial matter, that case is a decision

of the United States Court of Appeals for the District

of Columbia Circuit, and as such, is not binding on

Connecticut courts. Moreover, although Brown existed

at the time of the petitioner’s plea, the merits of Brown

do not provide persuasive support for his constitutional

claim. In Brown, the petitioner challenged his confinement alleging, inter alia, that the trial court failed to

canvass him pursuant to rule 11 of the Federal Rules

of Criminal Procedure. Id., 1101–1102. Relying entirely

on Federal Rules of Criminal Procedure, the District of

Columbia Circuit held that rule 11, which required

courts to canvass defendants who pleaded guilty, also

applies to a defendant who ‘‘seeks to waive trial on all

issues except insanity . . . .’’ Id., 1103. Although more

closely related to the claim regarding the petitioner’s

plea in the present case, Brown would not have compelled a Connecticut trial court as a matter of constitutional law to ensure that the petitioner’s plea was

knowing and voluntary, as it rested exclusively on the

Federal Rules of Criminal Procedure, rather than the

due process clause.

As we stated in Duperry v. Solnit, supra, 261 Conn.

323, ‘‘[n]either Miller nor Brown compel the result the

petitioner in the present case now seeks,’’ namely, that
we should hold that the petitioner’s claim regarding the

knowing and voluntary nature of his plea is not barred

by Teague because, for a habeas court to afford relief,

it would not need to announce a new constitutional

rule of criminal procedure but, rather, merely apply the

principle set forth in Boykin to pleas of not guilty by

reason of mental disease or defect. At the time of the

petitioner’s plea, Boykin existed, but there was no precedent extending its holding to the unique area of law

surrounding the affirmative defense of mental disease

or defect.

Although merely applying an existing principle to the

facts of a case is not considered to be a ‘‘ ‘new rule’ ’’

in contravention of Teague, the act of expanding an

existing principle establishes a new constitutional rule

of criminal procedure. Thiersaint v. Commissioner of

Correction, supra, 316 Conn. 103–104. For example, in

Thiersaint, we considered whether the rule announced

in Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473,

176 L. Ed. 2d 284 (2010), namely, that counsel must

advise defendants of potential deportation and immigration consequences as a result of a guilty plea, applied

retroactively on collateral review. Although the petitioner argued that the rule in Padilla was merely an

extension of the principle governing ineffective assistance of counsel claims under Strickland v. Washington, supra, 466 U.S. 687, we were not persuaded. We

held that Padilla addressed an unsettled question—

namely ‘‘whether attorneys are constitutionally

required to advise noncitizen criminal defendants of

the deportation consequences of a guilty plea . . . .’’

(Emphasis in original.) Thiersaint v. Commissioner

of Correction, supra, 121. Thus, because the court in

Padilla created a rule to answer a question beyond the

scope of Strickland, we held that the ‘‘rule announced

in Padilla was new, and not merely an extension of

the rule articulated in Strickland.’’ (Footnote omitted.)

Id., 121–22.

Similar to Thiersaint, in the present case, the rule

the petitioner seeks on habeas review would require

the court not merely to apply the Boykin principle to

the underlying facts, but also to expand that principle

beyond the scope of guilty pleas to include pleas of not

guilty by reason of mental disease or defect. The court

in Boykin specifically announced a rule that all guilty

pleas must be knowing and voluntary to comport with

due process. See Boykin v. Alabama, supra, 385 U.S.

242–44. It explained that this rule was necessary to

protect certain rights defendants surrender upon entering a guilty plea. Id. Although some courts have discussed the similarities between guilty pleas and pleas

of not guilty by reason of mental disease or defect;

see Miller v. Angliker, supra, 848 F.2d 1319–20; United

States v. Brown, supra, 428 F.2d 1102–1104; without

binding authority extending the holding in Boykin to

pleas of not guilty by reason of mental disease or defect,
the habeas court properly determined that it would have

had to announce a new constitutional rule of criminal

procedure. As such, the trial court in this case would

not ‘‘have felt compelled . . . to conclude that the rule

[the petitioner] seeks was required by the [c]onstitution.’’ Saffle v. Parks, supra, 494 U.S. 488. Accordingly,

we conclude that for the habeas court to afford the

petitionerrelief on the claim regarding his plea, it would

have had to establish a new constitutional rule of criminal procedure that all pleas of not guilty by reason of

mental disease or defect must be knowing and voluntary

to comport with due process.

Having concluded that the habeas court would have

had to depart from prior constitutional jurisprudence

to afford relief to the petitioner, we now turn to the

petitioner’s claim that a new rule that all pleas of not

guilty by reason of mental disease or defect must be

made knowingly and voluntarily falls within the second

Teague exception, which is for watershed constitutional rules of criminal procedure.11 See Casiano v.

Commissioner of Correction, 317 Conn. 52, 63, 115 A.3d

1031 (2015), cert. denied sub nom. Semple v. Casiano,

U.S. , 136 S. Ct. 1364, 194 L. Ed. 2d 376 (2016).

The petitioner claims that a rule that pleas of not guilty

by reason of mental disease or defect must be made

knowingly and voluntarily is a watershed rule of criminal procedure because it implicates the fundamental

fairness and accuracy of the criminal proceeding. The

petitioner concedes that the proposed rule does not

affect the accuracy of the determination of guilt, as an

affirmative defense of mental disease or defect requires

a defendant first to plead not guilty. He contends nevertheless that the rule would affect the accuracy of his

decision to enter a plea of not guilty, followed by an

affirmative defense of mental disease or defect, which

he claims is akin to a guilty plea. We disagree and

hold that the proposed rule does not fall within the

watershed exception to Teague.

The ‘‘watershed’’ exception to Teague v. Lane, supra,

489 U.S. 311, is reserved for those ‘‘ ‘rules of criminal

procedure’ implicating the fundamental fairness and

accuracy of the criminal proceeding.’’ Saffle v. Parks,

supra, 494 U.S. 495. Beyond fundamental fairness, the

new rule also must constitute a procedure ‘‘without

which the likelihood of an accurate conviction is seriously diminished.’’ Teague v. Lane, supra, 313. Further,

because ‘‘such [a procedure] would be so central to an

accurate determination of innocence or guilt . . . it

[is] unlikely that many such components of basic due

process have yet to emerge.’’ Id. One watershed rule

frequently cited is Gideon v. Wainwright, 372 U.S. 335,

344–45, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963), which

established a rule that criminal defendants have a right

to be represented by counsel.12 Saffle v. Parks, supra,

495.
Although we recognize some similarities between

guilty pleas and pleas of not guilty by reason of mental

disease or defect, we conclude that a rule requiring the

election of the latter to be knowing and voluntary is

not ‘‘central to an accurate determination of innocence

or guilt . . . .’’ Teague v. Lane, supra, 489 U.S. 313. As

we stated Duperry v. Solnit, supra, 261 Conn. 326, ‘‘[t]he

right to counsel recognized in Gideon [which often is

cited as a watershed rule of criminal procedure] not

only helps to ensure the fundamental fairness of a criminal proceeding but also helps to protect the defendant

from an inaccurate determination of guilt.’’ In contrast,

the rule the petitioner seeks to have us adopt does not

implicate the accuracy of the determination of guilt, as

he pleaded not guilty and was acquitted of all charges

on the basis of his affirmative defense. Accordingly, the

rule that pleas of not guilty by reason of mental disease

or defect must be entered knowingly and voluntarily

does not satisfy the Teague watershed exception. Thus,

we conclude that the habeas court properly denied the

petitioner relief on his claim regarding the knowing and

voluntary nature of his plea.

II

We next address the petitioner’s claim that the habeas

court improperly determined that his defense counsel

rendered effective assistance in the underlying criminal

proceedings. Specifically, he claims that his defense

counsel was ineffective for failing to research the law

concerning the affirmative defense of mental disease

or defect and failing to inform him that he could be

confined beyond the maximum twenty-five year period

if that defense was successful. In response, the respondent contends that the petitioner did not satisfy his

factual burden to demonstrate that his defense counsel’s actions constituted deficient performance and

prejudiced him. We agree with the respondent.

The record reveals the following additional relevant

facts. Relevant to the petitioner’s ineffective assistance

of counsel claim, it is important to note the lack of

evidence presented in the habeas court. First, no transcripts exist of the underlying criminal proceedings,

as they since have been destroyed. Second, and most

important is that the petitioner’s defense counsel, Richard A. Kelley, died prior to the habeas trial. At the

habeas trial, three witnesses testified: Attorney Raymond Canning, Attorney John Watson, and the petitioner.

Canning testified that he had one interaction with

the petitioner and Kelley, which took place right after

the petitioner was arrested. Kelley, who was running

late to work one morning, had called Canning and asked

him to meet with the petitioner. Once Kelley arrived,

he, Canning and the petitioner discussed the affirmative

defense of mental disease or defect. At that time, the
petitioner was advised that, although he could serve a

maximum of twenty-five years, he would likely serve

less time. Canning specifically testified that he and Kelley advised the petitioner that he would not be held

beyond the maximum twenty-five years. Further, Canning stated that the petitioner’s biggest concern was

how much time he would serve. He testified that, at

the time of his meeting with Kelley and the petitioner,

the board did not exist, and that before the board’s

existence, ‘‘[t]he maximum was the maximum,’’ but

once the board was created, an individual could remain

committed for a longer period of time than the initial

maximum commitment period. Finally, Canning confirmed that this brief meeting with Kelley and the petitioner had been his only involvement in the matter.

Next, Watson, who has been a public defender since

1980, testified about what a reasonable attorney would

have done in his or her representation of the petitioner.

He noted that, at the time of the petitioner’s plea, the

revision of General Statutes § 53a-47 then in effect provided that the petitioner could be committed beyond the

maximum of twenty-five years.13 He testified, however,

that prior to the creation of the board, it was typical

for an acquittee to be confined for a period shorter than

the maximum sentence and that it would have been a

very unusual case for an acquittee to serve a longer

term. Further, Watson testified that the petitioner

should have been informed that the maximum confinement would be twenty-five years, at which time it would

then be his burden to prove that he was no longer

mentally ill in order to secure his release, but that ultimately, his commitment could be extended at the petition of the state. He opined that, had the petitioner been

informed of his options and pursued a different defense,

there was a reasonable probability that he would have

been confined for less than twenty-five years. Watson

further testified that he was unaware of any research

that Kelley had conducted after his initial meeting with

the petitioner, and did not know of anyone he might

have consulted.

Lastly, the petitioner testified. He stated that Kelley

never told him that if he successfully asserted the affirmative defense of mental disease or defect, he nevertheless could remain committed for more than twenty-five

years. He testified that, although he recalled discussing

his options, Kelley had told him that the worst case

scenario would be that he would be committed for

about one year and then he would be released. The

petitioner recalled meeting with Kelley at least five

times from his arrest in 1983 through his commitment

in March, 1985. Ultimately, he stated that, had he known

that he could have been held beyond twenty-five years,

he would not have pursued the same defense.

The habeas court, in its memorandum of decision,

determined that the petitioner failed to establish both
deficient performance and prejudice underthe standard

of Strickland v. Washington, supra, 466 U.S. 687, and,

thus, failed to demonstrate that counsel rendered effective assistance.

‘‘A criminal defendant is constitutionally entitled to

adequate and effective assistance of counsel at all critical stages of criminal proceedings. . . . This right

arises under the sixth and fourteenth amendments to

the United States constitution and article first, § 8, of

the Connecticut constitution. . . . It is axiomatic that

the right to counsel is the right to the effective assistance of counsel. . . .

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

. . . . 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. . . . 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 that the 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. . . . An ineffective assistance of counsel claim will succeed only if

both prongs [of Strickland] are satisfied.’’ (Citations

omitted; internal quotation marks omitted.) Thiersaint

v. Commissioner of Correction, supra, 316 Conn. 100–

101. Further, ‘‘[a] court can find against a petitioner,

with respect to a claim of ineffective assistance of counsel, on either the performance prong or the prejudice

prong, whichever is easier.’’ (Internal quotation marks

omitted.) Michael T. v. Commissioner of Correction,

307 Conn. 84, 91, 52 A.3d 655 (2012).

‘‘The issue of whetherthe representation that a defendant received at trial was constitutionally inadequate

is a mixed question of law and fact. . . . As such, the

question requires plenary review unfettered by the

clearly erroneous standard.’’ (Citation omitted; internal

quotation marks omitted.) Davis v. Commissioner of

Correction, 319 Conn. 548, 554, 126 A.3d 538 (2015),

cert. denied sub nom. Semple v. Davis, U.S. ,

136 S. Ct. 1676, 194 L. Ed. 2d 801 (2016). In our review

of this claim, we afford great deference to the habeas

court’s factual findings, which underlie its legal conclusions. ‘‘The habeas court is afforded broad discretion

in making its factual findings, and those findings will

not be disturbed unless they are clearly erroneous. . . .

Thus, [t]his court does not retry the case or evaluate

the credibility of the witnesses. . . . Rather, we must

defer to the [trier of fact’s] assessment of the credibility
of the witnesses based on its firsthand observation of

their conduct, demeanor and attitude. . . . The habeas

judge, as the trier of facts, is the sole arbiter of the

credibility of witnesses and the weight to be given to

their testimony.’’ (Internal quotation marks omitted.)

Sanchez v. Commissioner of Correction, 314 Conn. 585,

604, 103 A.3d 954 (2014).

Turning to the performance prong of Strickland, in

its memorandum of decision, the habeas court was not

convinced that Kelley had made inaccurate representations to the petitioner regarding the maximum amount

of time for which he could be confined and, thus, concluded that the petitioner failed to establish the deficient performance prong of Strickland for two reasons.

First, the habeas court found that Canning’s testimony

lacked evidentiary weight and was of little probative

value. His interactions with the petitioner and Kelley

pertained only to one meeting, which was held just after

the petitioner’s arrest. As such, he could not testify as

to any other conversations between the petitioner and

Kelley, including those in closer proximity to the assertion of the petitioner’s affirmative defense. Additionally,

the habeas court noted the difficulty an individual

would have in recalling details from a single meeting

that had taken place thirty years prior.

Second, the habeas court found that the petitioner’s

testimony was ‘‘uncompelling,’’ ‘‘largely self-serving and

unsupported.’’ After observing the petitioner testify, the

habeas court noted that the petitioner had difficulty

remembering when he had met with his attorneys and

with which attorneys he had met. Significantly, the

habeas court pointed out that the petitioner himself

conceded that his recollection was ‘‘iffy’’ of the initial

meeting between himself, Canning, and Kelley, during

which he claimed that he was advised that if he pursued

a defense of mental disease or defect, that he could not

be committed for more than twenty-five years. Thus,

the habeas court concluded that, on the basis of the

extremely limited evidence offered, the petitionerfailed

to meet his burden on the deficient performance prong

of Strickland.

On the basis of our review of the evidence presented

at the habeas trial, giving deference to the habeas

court’s factual findings; see Sanchez v. Commissioner

of Correction, supra, 314 Conn. 604; we hold that the

habeas court properly determined that the petitioner

failed to establish that Kelley’s conduct fell below an

objectively reasonable standard because the petitioner

did not establish factually that Kelley misadvised him

regarding the fact that he could remain committed

beyond the maximum term of twenty-five years confinement if he successfully pursued a defense of mental

disease or defect. Specifically, we defer to the habeas

court’s credibility determination that Canning’s testimony was ‘‘of little probative value’’ and that the peti-
tioner’s testimony was ‘‘largely self-serving.’’ What

remains is a record devoid of any credible factual indication that Kelley did in fact misadvise the petitioner.

Accordingly, we conclude that the habeas court properly concluded that the petitioner failed to establish

that his counsel’s actions fell below an objectively reasonable standard.

The judgment is affirmed.

In this opinion ROGERS, C. J., and ZARELLA, EVELEIGH, McDONALD and ESPINOSA, Js., concurred.

* December 22, 2016, the date that this decision was released as a slip

opinion, is the operative date for all substantive and procedural purposes.

1 The habeas court granted the petitioner’s petition for certification to

appeal pursuant to General Statutes § 52-470 (b). The petitioner subsequently

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 § 65-2.

2 The petitioner has filed numerous challenges to his extended confinement. Specifically, on October 23, 2003, the petitioner filed his first application for discharge from custody, which the court, Foley, J., denied. The

petitioner filed a second application for discharge on March 28, 2007, which

the trial court, Swords, J., denied.

In 2009, the state filed a petition for an order of continued commitment,

in response to which the petitioner filed a motion to dismiss. After a hearing

on the matter, the trial court, Swords, J., concluded that the petitioner posed

‘‘an imminent and substantial risk of harm to himself or others,’’ denied the

petitioner’s motion to dismiss, and granted the state’s order for continued

commitment. Following an unsuccessful appeal from that decision, in which

we held that the trial court lacked jurisdiction over the petitioner’s due

process claim that his plea of not guilty by reason of mental disease or

defect was not knowing, intelligent, or voluntary; State v. Dyous, 307 Conn.

299, 335, 53 A.3d 153 (2012); the petitioner filed the habeas petition underlying the present appeal.

3 The petitioner also alleged that his due process rights were violated

because the trial court did not canvass him regarding his decision to plead

not guilty by reason of mental disease or defect. He subsequently withdrew

that claim at the habeas trial.

4 The habeas court also denied the respondent’s claim that the petitioner’s

claims were barred by the special defense of laches. This determination is

not at issue in this appeal.

5 The undisputed facts underlying Solnit and Kirk are strikingly similar

to the facts in the present appeal. In April, 1988, Duperry was arrested

and charged with arson and manufacturing bombs in connection with the

explosion of a pipe bomb at the Institute of Living in Hartford. Duperry v.

Solnit, supra, 261 Conn. 312–13. In December, 1988, he subsequently asserted

an affirmative defense based on mental disease or defect and elected an

unopposed, nonadversarial bench trial. Id., 313–14. After that proceeding,

the trial court found Duperry not guilty by reason of mental disease or defect

and ordered him committed to the custody of the board for a maximum term

of twenty-five years. Id., 314–15.

Nearly one decade later, Duperry filed a petition for a writ of habeas

corpus in the Superior Court, alleging, inter alia, that his due process rights

were violated, as his plea was not made knowingly, intelligently, and voluntarily because he did not understand the consequences of raising the affirmative defense of mental disease or defect. Id., 315. The habeas court then

granted Duperry’s petition, leading the commissioner to appeal to this

court. Id.

6 We also, however, exercised our supervisory authority to conclude that,

‘‘in future cases when a defendant pleads not guilty by reason of mental

disease or defect and the state substantially agrees with the defendant’s

claim of mental disease or defect, with the result that the trial essentially

is not an adversarial proceeding, the trial court must canvass the defendant

to ensure that he or she fully understands the consequences of his or her

plea, particularly with respect to the length of time the defendant could be

confined.’’ Duperry v. Solnit, supra, 261 Conn. 312.

7

In the alternative, the petitioner contends that, if this court ‘‘finds that

the Supreme Court did in fact rule that the claim was precluded by Teague
in [Solnit] this court [should] revisit that issue and find that the principle

that a plea of [not guilty by reason of mental disease or defect] must be

knowing and voluntary should apply at the time that the petitioner entered

his plea and can be reviewed by this court.’’ Because we assume that Solnit

has no preclusive effect with respect to the petitioner’s claim regarding the

knowing and voluntary nature of his plea, for the purposes of this appeal,

we decline the petitioner’s suggestion to revisit the issue.

8 Because the claim is procedurally barred, we do not reach the merits

of the petitioner’s claim that all defenses premised on mental disease or

defect must be elected knowingly and voluntarily to comport with due

process.

9 Although we usually afford deference to the federal courts when interpreting federal law; see, e.g., Szewczyk v. Dept. of Social Services, 275 Conn.

464, 475 n.11, 881 A.2d 259 (2005); we decline to do so here because the

precedent at the time of the present petitioner’s plea plainly does not support

the court’s decision in Kirk.

10 In contrast, Miller existed at the time of Duperry’s plea, which was

entered in December, 1988, for the purposes of Duperry v. Kirk, supra, 563

F. Supp. 2d 370.

11 The petitioner does not claim that this rule would fall within the first

exception to Teague, which ‘‘permits the retroactive application of a new

rule if the rule places a class of private conduct beyond the power of the

[s]tate to proscribe . . . or addresses a substantive categorical guarante[e]

accorded by the [c]onstitution, such as a rule prohibiting a certain category

of punishment for a class of defendants because of their status or offense.’’

(Citation omitted; internal quotation marks omitted.) Saffle v. Parks, supra,

494 U.S. 494. As such, our analysis is limited to the second Teague exception.

12 We rarely have addressed the issue of whether a new constitutional

rule of criminal procedure established on collateral review in contravention

of Teague, nevertheless may be applied retroactively because the rule fell

within the watershed exception. Most recently, we conducted a Teague

analysis in Casiano v. Commissioner of Correction, supra, 317 Conn. 69.

In that case, we held that the rule set forth in Miller v. Alabama, U.S.

, 132 S. Ct. 2455, 2464–65, 2468, 183 L. Ed. 2d 407 (2012), namely that

‘‘before a sentence of life without the possibility of parole may be imposed

on a juvenile homicide offender, a sentencing authority must engage in an

individualized sentencing process that accounts for the mitigating circumstances of youth and its attendant characteristics’’; Casiano v. Commissioner of Correction, supra, 59; was a watershed rule of criminal procedure

for Teague purposes. Id., 62. Because the Miller rule pertained to sentencing,

rather than the accuracy of convictions, we observed that, ‘‘[i]n the sentencing context, where the issue is no longer one of guilt or innocence, the

second criterion asks whether the new procedure is central to an accurate

determination that the sentence imposed is a proportionate one.’’ Id., 69.

The rule established in Miller required courts to consider the mitigating

factors of youth in sentencing and, thus, would be central to ensuring that

sentences imposed on minors would be proportionate to their age and crime.

Thus, we held that the rule was a watershed rule of criminal procedure and

applied it retroactively on collateral review. Id., 71. Casiano does not inform

our decision in the present case, as it is unique to sentencing, and as such

is inapplicable to the rule proposed by the petitioner that addresses the

knowing and voluntary nature of his plea.

13 At the time of the petitioner’s plea and commitment, the board did not

exist. As such, he was committed pursuant to General Statutes (Rev. to

1985) § 53a-47. Under that statute, however, it was clear that the ‘‘state’s

attorney . . . may petition the court for an order of further confinement

on the grounds that release of the person would constitute a danger to life

or person.’’ General Statutes (Rev. to 1985) § 53a-47 (d).