Opinion
No. 19134.
2015-04-14
Emmanuel THIERSAINT v. COMMISSIONER OF CORRECTION.
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 , New Haven , and, on the brief, Robert Fuentes , law student intern, for the appellee (petitioner). Elisa L. Villa , Bristol, 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.
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, New Haven, and, on the brief, Robert Fuentes, law student intern, for the appellee (petitioner).
Elisa L. Villa, Bristol, 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.
ROGERS, C.J., and PALMER, ZARELLA, EVELEIGH, MCDONALD, ESPINOSA and ROBINSON, Js.
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. The respondent claims that the 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 direct review; (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. 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.
In Padilla v. Kentucky, supra, 559 U.S. at 360, 130 S.Ct. 1473 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....”
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.
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 petitioner to 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 ... § 21a–277 (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 petitioner thus sought habeas relief “in the interests of justice” and under the federal and state constitutions.
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.”
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 two-pronged test set forth in Strickland v. Washington, supra, 466 U.S. at 687, 104 S.Ct. 2052 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 under the 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.
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.
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. at 686, 104 S.Ct. 2052]. 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. at 687, 104 S.Ct. 2052. 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 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.” Hill v. Lockhart, supra, 474 U.S. at 59, 106 S.Ct. 366. An ineffective assistance of counsel claim “will succeedonly 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. at 364–66, 130 S.Ct. 1473. 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., at 364, 130 S.Ct. 1473. 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., at 365–66, 130 S.Ct. 1473. 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., at 366, 130 S.Ct. 1473.
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., at 367, 130 S.Ct. 1473; and that whether counsel has provided such advice is properly considered under the first prong of Strickland.Id., at 366–67, 130 S.Ct. 1473. 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., at 369, 130 S.Ct. 1473; and, therefore, his counsel's duty to give correct advice was “equally clear.” Id.
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. at 369, 130 S.Ct. 1473.
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. at 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 at the 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., at 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 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.) Id., at 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. at 52, 106 S.Ct. 366 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. at 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.” Id., at 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., at 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., at 1111.
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. at 1108.
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 under federal 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., at 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. Nevertheless, should this court applythe 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.
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).
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. at 280–81, 128 S.Ct. 1029. 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., at 279–80, 128 S.Ct. 1029. 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. at 288, 109 S.Ct. 1060]”; Luurtsema v. Commissioner of Correction, supra, 299 Conn. at 753 n. 14, 12 A.3d 817; 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.” 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. at 282, 128 S.Ct. 1029], 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, at 753 n. 14, 12 A.3d 817.
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. at 307, 109 S.Ct. 1060. 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., at 311–13, 109 S.Ct. 1060. Neither party claims that either exception applies in the present case.
Thus, contrary to Justice Eveleigh'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.
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 nonconstitutional rule 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 ). Thirty-three other states and the District of Columbia likewise apply Teague in deciding state law claims. We nonetheless review the petitioner'sclaim 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.
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, 7 N.E.3d 605, 610 (Ohio App.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 Wash.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.
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 Hawai‘i 381, 424, 184 P.3d 133 (2008); People v. Flowers, 138 Ill.2d 218, 239–40, 149 Ill.Dec. 304, 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, 23 N.Y.3d 777, 797, 992 N.Y.S.2d 738, 16 N.E.3d 1216 (2014); State v. Zuniga, 336 N.C. 508, 513, 444 S.E.2d 443 (1994); State v. Bishop, 7 N.E.3d 605, 610 (Ohio App.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 Wash.2d 614, 627–28, 316 P.3d 1020 (2014); State v. Lo, 264 Wis.2d 1, 33–34, 665 N.W.2d 756 (2003).
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–10–4003834S, 2013 WL 1189407 (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.
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 in Connecticut will be subject to deportation upon their release. Accordingly, there is no support for Justice Eveleigh's assumption.
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. Without finality, the criminal law is deprived of much of its deterrent effect.” Teague v. Lane, supra, 489 U.S. at 309, 109 S.Ct. 1060. 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., at 310, 109 S.Ct. 1060. 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 quotation 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. 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 § 54–1j that the trial court and defense counsel must inform a noncitizencriminal defendant of the possible deportation consequences of a guilty plea. We disagree.
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.”
.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.”
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. at 366–67, 130 S.Ct. 1473. 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 § 39–19 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 constitutionalmagnitude: ‘ 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, at 663 n. 12, 778 A.2d 134. 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, at 507, 752 A.2d 49; 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, at 663 n. 12, 778 A.2d 134), 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. at 1109 n. 8; and observed that the decision in Padilla had “altered the law of most jurisdictions....” Id., at 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. We are therefore compelled to conclude that the petitioner's ineffective assistance of counsel claim does not allege a constitutional violation.
.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.”
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. at 663 n. 12, 778 A.2d 134 (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. at 507 and n. 8, 752 A.2d 49 (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. at 520, 792 A.2d 109 (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., at 536, 35 A.3d 237. 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., at 535, 35 A.3d 237; 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.
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.
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. at 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. at 423–24, 995 N.E.2d 760. 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, at 37, 949 N.E.2d 892], 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. at] 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. at] 36, 38–39, 43 . Because application of such a general standard to a particular factual scenario rarely produces a new rule, [id. at] 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. at] 45 .” (Citations omitted; emphasis omitted; footnotes omitted.) Commonwealth v. Sylvain, supra, at 429, 995 N.E.2d 760.
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., at 433, 995 N.E.2d 760. The court in Sylvain first noted that, “according to the original formulation discussed in [Teague v. Lane, supra, 489 U.S. at 301, 109 S.Ct. 1060], ‘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 what is ‘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. at 433, 995 N.E.2d 760. 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, at 433–34, 995 N.E.2d 760. 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., at 435, 995 N.E.2d 760.
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 consequenceof 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. at 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, and not merely an extension of the rule articulated in Strickland.
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. at 300–304, 109 S.Ct. 1060; and that a case does not announce a new rule if the result is dictated by “precedent”; id., at 301, 109 S.Ct. 1060; or by the application of a principle that governed a past decision. Id., at 307, 109 S.Ct. 1060; see also Chaidez v. United States, supra, 133 S.Ct. at 1107.
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., at 819–20, 59 P.3d 463. 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., at 820, 59 P.3d 463. 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 our long-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., at 139 n. 2, 233 P.3d 61.
Justice Eveleigh is persuaded by this reasoning and suggests that Connecticut 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. at 288, 109 S.Ct. 1060 for “watershed rules of criminal procedure”; id., at 311, 109 S.Ct. 1060; that “implicate the fundamental fairness of the trial”; id., at 312, 109 S.Ct. 1060; and “without which the likelihood of an accurate conviction is seriously diminished.” Id., at 313, 109 S.Ct. 1060; 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 of the 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 constitutional rule is new on the basis of whatever the court finds persuasive, including Connecticut's statutory framework and whether the trial or plea is deemed to be “fair” without application of the rule. 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 of the 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, at 297, 87 S.Ct. 1967. 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.
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 direct review 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 claim because it was not raised in the petitioner's habeas petition, pretrial memorandum, posttrial brief, or preliminary counterstatement of issues.
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).
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. at 580, 941 A.2d 248.
In the present case, the petitioner claimed in his petition and throughout the habeas proceeding that he was deprived of his sixth amendment right 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. at 520, 792 A.2d 109, 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., at 501, 43 A.3d 69; 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.
PALMER, J., dissenting.
I disagree with the majority's conclusion that Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), which held that the failure of defense counsel to advise a noncitizen client regarding the immigration consequences of pleading guilty establishes the performance prong of a claim of ineffective assistance of counsel under the sixth amendment, announced a new procedural rule within the meaning of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), and therefore does not apply retroactively in habeas proceedings. Although I agree that we should continue to apply the Teague framework in determining whether a decision that recognizes a constitutional rule of criminal procedure should be applied retroactively in habeas proceedings, I would conclude that Padilla did not announce a new rule because it was merely an application of the well established standard governing ineffective assistance of counsel claims under Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and because, under Connecticut law, the obligations of counsel for the petitioner, Emmanuel Thiersant, were consistent with the court's holding in Padilla. I conclude, therefore, that the habeas court in the present case properly determined that the petitioner was deprived of his right to the effective assistance of counsel. Accordingly, I respectfully dissent.
I therefore agree with Justice Eveleigh's conclusion that Padilla applies retroactively in state habeas proceedings, and I also agree with a portion of his analysis and reasoning. I am concerned, however, that the approach he advocates would, in practice, lead to near universal retroactivity for all constitutional rules, and that a new trial will be required in every such case, no matter when the conviction was obtained. I therefore am unable to agree that we should apply a constitutional rule retroactively whenever “the fundamental fairness of a trial or plea is seriously diminished without the rule....” Although this test seems sensible in theory, the concept of “fundamental fairness” is so amorphous that virtually all constitutional rules of criminal procedure pertaining to a criminal trial or plea may be said to implicate “fundamental fairness” in one way or another. Insofar as the vast majority of such rules would be subject to retroactive applicability under Justice Eveleigh's test, I do not believe that the test takes sufficient account of the state's significant interest in finality. It bears emphasis, moreover, that new substantive rules invariably apply retroactively because they “necessarily carry a significant risk that a defendant stands convicted of an act that the law does not make criminal or faces a punishment that the law cannot impose upon him,” whereas only procedural rules are subject to the Teague retroactivity test because “[t]hey do not produce a class of persons convicted of conduct the law does not make criminal, but merely raise the possibility that someone convicted with use of the invalidated procedure might have been acquitted otherwise.” (Internal quotation marks omitted.) Schriro v. Summerlin, 542 U.S. 348, 352, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004). As I explain hereinafter, I believe that we should continue to follow the Teague framework, including the important exceptions delineated by the United States Supreme Court; see footnote 3 of this dissenting opinion; because that framework gives due weight to the state's legitimate interests and leads to consistent results. As I further explain, however, I would conclude that Padilla applies retroactively in habeas proceedings in this state because it did not announce a new rule.
The relevant facts and procedural history, which are not disputed, may be summarized briefly as follows. The petitioner is a native of Haiti who moved to the United States in 1994, when he was fourteen years old. Shortly after his arrival, he was critically injured in a motor vehicle accident, and required the amputation of his right leg above the knee. Following the accident, the petitioner was hospitalized for eight months, and was administered a variety of drugs for his injuries. After leaving the hospital, he developed an addiction to crack cocaine. In 2006, the petitioner was arrested and charged with various narcotics offenses after making two $20 sales of crack cocaine to an undercover police officer. The petitioner was represented by Attorney John Imhoff. In 2007, the petitioner pleaded guilty to possession of cocaine with intent to sell in violation of General Statutes § 21a–277 (a), and, based on his conviction for that offense, he was subsequently ordered removed from the United States. Thereafter, the petitioner commenced the present habeas action, alleging that Imhoff had failed to advise him of the immigration consequences of his guilty plea in violation of Padilla v. Kentucky, supra, 559 U.S. at 374, 130 S.Ct. 1473. The habeas court determined that Padilla, which was decided after the petitioner's conviction became final, applied retroactively to the petitioner's claim.
On the merits of the petitioner's claim, the habeas court agreed with the petitioner that he had been deprived of the effective assistance of counsel. The court first determined that Imhoff had performed deficiently because his representation fell below “an objective standard of reasonableness.” Strickland v. Washington, supra, 466 U.S. at 688, 104 S.Ct. 2052. In support of this conclusion, the habeas court found that Imhoff had failed to advise the petitioner that his conviction under § 21a–277 (a) would constitute an aggravated felony for immigration law purposes and that, as a result of that conviction, he would be subject to mandatory detention by the United States Immigration and Customs Enforcement Agency upon the completion of his sentence. In addition, the court found that Imhoff had failed to advise the petitioner that his conviction would render him ineligible for almost all defenses to removal, virtually assuring that he would be ordered removed from the United States and permanently barred from returning. According to the habeas court, those adverse immigration consequences of a conviction under § 21a–277 (a) were sufficiently clear and definite that Imhoff had a duty to advise the petitioner about those consequences prior to his plea. The court further concluded that, at the time Imhoff represented the petitioner, a reasonably competent defense attorney would have provided such advice. Instead, Imhoff “gave the petitioner differing, unspecific and incorrect advice, all of which left room for the petitioner to believe that he could contest his removal,” and advised the petitioner to consult an immigration attorney for more specific advice. The court also concluded that reasonably competent counsel would have raised the petitioner's immigration status during plea negotiations in an effort to obtain an alternative disposition that would not have resulted in a conviction of an aggravated felony, and Imhoff had failed to do so.
In addition, the habeas court found that the petitioner was prejudiced by Imhoff's deficient performance because, had the petitioner known that his conviction would subject him to near certain and permanent removal from the United States, he would have insisted on going to trial rather than pleading guilty. The habeas court found that this would have been a rational decision based in large part on the conditions the petitioner would face in Haiti upon his return to that country, as well as the petitioner's strong ties to the United States. The petitioner has been a lawful permanent resident of the United States for almost twenty years and currently lives with his longtime girlfriend, who suffers from seizures and often requires his assistance, and their young daughter. As a result of the injuries he suffered in the motor vehicle accident, the petitioner requires the use of either a prosthesis or a wheelchair. The habeas court credited evidence presented by the petitioner regarding the inhumane conditions in Haiti for criminal deportees, especially those who are disabled. Upon return to Haiti as a criminal deportee, the petitioner would be subject to indefinite detention in a cell measuring ten feet by ten feet, containing twenty to sixty other detainees, where temperatures reach 100 degrees and rodents, insects, and disease are rampant. Detainees do not have access to bathroom facilities or medical care, and many detainees become seriously ill or die due to the extreme conditions. Detainees also must rely on family members or fellow detainees for food and water because it is not provided by the government. Because the petitioner has no family in Haiti, he would have to rely on his fellow detainees or go without nourishment. Even if he were released from detention, the petitioner likely would face discrimination and harassment from Haitian citizens because of his disability and his status as a criminal deportee. As the habeas court observed, in light of these extraordinary circumstances, the petitioner's decision to forgo the plea offer and proceed to trial would have been a reasonable one regardless of the strength of the state's case against him because “he would have had nothing to lose” by taking his chances at trial. The habeas court therefore granted the petitioner's petition for a writ of habeas corpus and ordered the petitioner's conviction vacated so that he could stand trial on the charges. The respondent, the Commissioner of Correction, appealed, claiming that the habeas court had improperly concluded that Padilla applied retroactively to the petitioner's claim.
I
As the majority has explained, claims of ineffective assistance of counsel at the plea stage are governed by the standard set forth in Strickland v. Washington, supra, 466 U.S. at 687–91, 104 S.Ct. 2052 and Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). Under Strickland and Hill, a habeas petitioner must prove that “counsel's representation fell below an objective standard of reasonableness ... [and] that there is a reasonable probability that, but for counsel's errors, [the petitioner] would not have pleaded guilty and would have insisted on going to trial.” (Citations omitted; internal quotation marks omitted.) Johnson v. Commissioner of Correction, 285 Conn. 556, 575–76, 941 A.2d 248 (2008). In Padilla v. Kentucky, supra, 559 U.S. at 374, 130 S.Ct. 1473 the United States Supreme Court concluded that advice regarding the immigration consequences of a guilty plea is not categorically removed from the sixth amendment's protections, and that a criminal defense attorney may render constitutionally ineffective assistance by failing to advise a noncitizen client about such consequences. Subsequently, in Chaidez v. United States, –––U.S. ––––, 133 S.Ct. 1103, 185 L.Ed.2d 149 (2013), the court concluded that Padilla does not apply retroactively in federal habeas proceedings, so that a noncitizen whose conviction became final before the decision in Padilla was announced is not entitled to relief in federal habeas court. In reaching its conclusion, the court applied the retroactivity framework it previously had set forth in Teague v. Lane, supra, 489 U.S. at 288, 109 S.Ct. 1060. As the court explained, under Teague, when a decision announces a “new rule, a person whose conviction is already final may not benefit from the decision in a [federal] habeas or similar proceeding. Only when we apply a settled rule may a person avail herself of the decision on collateral review.” (Footnote omitted; internal quotation marks omitted.) Chaidez v. United States, supra, at 1107. The court concluded that Padilla announced a new rule and, consequently, declined to give it retroactive effect. Id., at 1113.
The court in Strickland set forth the general standard for establishing an ineffective assistance of counsel claim, requiring a petitioner to prove both that trial counsel performed deficiently and that, “but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, supra, 466 U.S. at 694, 104 S.Ct. 2052. In Hill, the court held that the Strickland standard applies to claims of ineffective assistance at the plea stage, but explained that the prejudice prong requires a petitioner to prove that, “but for counsel's errors, he would not have pleaded guilty and would have insisted ongoing to trial.” Hill v. Lockhart, supra, 474 U.S. at 59, 106 S.Ct. 366.
The court in Teague recognized two exceptions to the general rule of nonretroactivity for new constitutional rules. See Teague v. Lane, supra, 489 U.S. at 307, 109 S.Ct. 1060 (“First, a new rule should be applied retroactively if it places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe.... Second, a new rule should be applied retroactively if it requires the observance of those procedures that ... are implicit in the concept of ordered liberty.” [Citation omitted; internal quotation marks omitted.] ). Because I would conclude that Padilla did not announce a new rule, those exceptions are not relevant to my analysis.
Of course, if we were bound to follow Chaidez, the respondent in the present case would be entitled to prevail on his appeal because, under Chaidez, Padilla does not apply retroactively. As the United States Supreme Court made clear in Danforth v. Minnesota, 552 U.S. 264, 128 S.Ct. 1029, 169 L.Ed.2d 859 (2008), however, Teague applies only to federal habeas review, and states are therefore free to give broader retroactive effect to a constitutional rule as a matter of state law. In Danforth, the court explained that Teague 's “general rule of nonretroactivity [was justified] in part by reference to comity and respect for the finality of state convictions,” and that “[f]ederalism and comity considerations are unique to federal habeas review of state convictions.... If anything, considerations of comity militate in favor of allowing state courts to grant habeas relief to a broader class of individuals than is required by Teague. And while finality is, of course, implicated in the context of state as well as federal habeas, finality of state convictions is a state interest, not a federal one. It is a matter that [s]tates should be free to evaluate, and weigh the importance of, when prisoners held in state custody are seeking a remedy for a violation of federal rights by their lower courts.” (Citation omitted; emphasis in original.) Id., at 279–80, 128 S.Ct. 1029.
Accordingly, in determining whether to give retroactive effect to Padilla, we need not follow Teague, and may adopt our own retroactivity test for purposes of state law. As the majority observes, however, we previously have adopted the Teague framework, and I agree generally that we should continue to adhere to that framework when determining whether a decision applies retroactively to cases that otherwise have proceeded to final judgment. The Teague framework has significant advantages, in that it gives proper weight to the state's important interest in ensuring the finality of convictions, is relatively straightforward to apply, and leads to consistent results.
I note, however, that we have never addressed the question of whether to give retroactive effect to a particular decision where, as in the present case, the United States Supreme Court has previously ruled that the decision does not apply retroactively on federal habeas review. In fact, we have only actually conducted a Teague analysis in one case, Duperry v. Solnit, 261 Conn. 309, 318–24, 803 A.2d 287 (2002), wherein we reversed the judgment of the habeas court on the ground that it announced a new rule in a collateral proceeding. In the remaining cases on which the majority relies, we did not actually apply the Teague framework at all. See State v. Payne, 303 Conn. 538, 549–50, 550 n. 10, 34 A.3d 370 (2012) (adopting new approach to joinder of criminal trials under rules of practice and noting that it will not apply retroactively on collateral review); Johnson v. Warden, 218 Conn. 791, 796–98, 591 A.2d 407 (1991) (concluding that United States Supreme Court decision on which petitioner relied did not apply retroactively because it had resolved question of statutory interpretation and did not announce constitutional rule). I also note that I agree with the majority that nothing we said in Luurtsema v. Commissioner of Correction, 299 Conn. 740, 12 A.3d 817 (2011), suggests that we should no longer follow the Teague framework in determining whether a constitutional rule applies retroactively.
As the United States Supreme Court itself has expressly recognized, however, “[a] decision ... that a new rule does not apply retroactively under Teague does not imply that there was no right and thus no violation of that right at the time of trial—only that no remedy will be provided in federal habeas courts.” Id., at 291, 109 S.Ct. 1060. Accordingly, when we determine whether to give a decision retroactive effect, we are not determining whether the constitutional right in question existed at the time of the alleged violation, but only whether to afford a remedy for a violation of that right. It necessarily follows, then, that when we decide not to give a rule retroactive effect, we are deciding that an undetermined number of constitutional violations will stand uncorrected. This fact militates in favor of a more flexible or liberal application of the Teague framework when, as here, considerations of federalism and comity do not come into play.
Furthermore, critics of the Teague framework have pointed out that the United States Supreme Court has given an exceedingly broad interpretation to the definition of a new rule, thereby restricting significantly the availability of remedies for constitutional violations. As first articulated in Teague, a decision was deemed to announce a new rule if the result was not “dictated by precedent” existing at the time the defendant's conviction became final. (Emphasis omitted.) Teague v. Lane, supra, 489 U.S. at 301, 109 S.Ct. 1060. Subsequently, the Supreme Court “has greatly expanded the meaning of what is ‘new’ to include results not ‘apparent to all reasonable jurists' at the time.” Commonwealth v. Sylvain, 466 Mass. 422, 433, 995 N.E.2d 760 (2013), quoting Lambrix v. Singletary, 520 U.S. 518, 527–28, 117 S.Ct. 1517, 137 L.Ed.2d 771 (1997). Consequently, a decision is considered new for purposes of Teague “even when it is controlled or governed by prior law and is the most reasonable interpretation of that law, unless no other interpretation is reasonable.” Rhoades v. State, 149 Idaho 130, 138, 233 P.3d 61 (2010), cert. denied, ––– U.S. ––––, 131 S.Ct. 1571, 179 L.Ed.2d 477 (2011), citing Butler v. McKellar, 494 U.S. 407, 415, 110 S.Ct. 1212, 108 L.Ed.2d 347 (1990). Because this standard is so broad, “decisions defining a constitutional safeguard rarely merit application on collateral review.” Colwell v. State, 118 Nev. 807, 818, 59 P.3d 463 (2002), cert. denied, 540 U.S. 981, 124 S.Ct. 462, 157 L.Ed.2d 370 (2003). Although the United States Supreme Court has deemed this approach to be appropriate in the context of determining whether to apply a rule retroactively on federal habeas review of state convictions, the same federalism and comity concerns are not implicated when a state determines whether to apply the rule for purposes of its own habeas proceedings. In fact, with respect to the state's significant interest in finality, because state collateral review generally takes place sooner than federal collateral review, the adverse effect on that interest is less pronounced in the former context than it is in the latter. Thus, a number of states have recognized that the restrictive approach to retroactivity mandated by Teague and its progeny provides insufficient protection for criminal defendants seeking to vindicate constitutional rights in state habeas proceedings; see, e.g., Rhoades v. State, supra, at 138–39, 233 P.3d 61; Commonwealth v. Sylvain, supra, at 433–35, 995 N.E.2d 760; Colwell v. State, supra, at 818–20, 59 P.3d 463; an observation with which I agree. I therefore believe that the decision of whether “to give retroactive effect to a rule of law [under the Teague framework] should reflect independent judgment, based upon the concerns of this [c]ourt and the uniqueness of our state, our [c]onstitution, and our long-standing jurisprudence.” (Internal quotation marks omitted.) Rhoades v. State, supra, at 139, 233 P.3d 61.
As the Nevada Supreme Court recently put it, “[t]he policy concerns behind Teague are partly germane to collateral review by this and other state courts and partly not. We share the concern that the finality of convictions not be unduly disturbed, but the need to prevent excessive interference by federal habeas courts has no application to habeas review by state courts themselves. And even the effect on finality is not as extreme when a state appellate court, as opposed to a federal court, decides to apply a rule retroactively: first, the decision affects only cases within that state, and second, most state collateral review occurs much sooner than federal collateral review. In addition, we are concerned with encouraging the [trial] courts of this state to strive for perspicacious, reasonable application of constitutional principles in cases where no precedent appears to be squarely on point.” Colwell v. State, supra, 118 Nev. at 818, 59 P.3d 463.
Applying the Teague framework to the present case, and with the foregoing considerations in mind, I would conclude that Padilla did not announce a new constitutional rule. In reaching this conclusion, I agree with Justice Sotomayor's dissent in Chaidez, in which she explains that Padilla did not announce a new rule under Teague because it was merely an application of the rule set forth in Strickland. Chaidez v. United States, supra, 133 S.Ct. at 1114. Furthermore, Connecticut case law and practice at the time Padilla was decided support rather than foreclose this conclusion and, contrary to the concern expressed by the majority, applying Padilla retroactively would not open the floodgates to petitioners seeking relief for alleged violations of Padilla.
As the majority opinion explains, the court in Chaidez acknowledged that, “[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.” (Internal quotation marks omitted.) Id., at 1107. The court further acknowledged that, because Strickland itself is a rule of general application, “garden-variety applications of the test in Strickland ... for assessing claims of ineffective assistance of counsel do not produce new rules.” Id. According to the court, however, “ Padilla did something more” than merely apply Strickland to a new factual context. Id., at 1108. Specifically, the court explained, “[b]efore deciding if failing to provide [advice regarding immigration consequences] 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?” (Internal quotation marks omitted.) Id. As the court further explained, it had never decided whether the sixth amendment requires attorneys to advise their clients regarding the collateral consequences of a conviction, and state and lower federal courts had been nearly unanimous in concluding that it does not. Id., at 1108–1109. According to the court, this meant that its decision in Padilla was not “ ‘dictated’ ” by precedent, and, therefore, that it announced a new rule. (Emphasis omitted.) Id., at 1110.
In dissent, Justice Sotomayor, joined by Justice Ginsburg, argued that Padilla did not announce a new rule because it merely applied “the existing rule of Strickland ... in a new setting, the same way the [c]ourt has done repeatedly in the past: by surveying the relevant professional norms and concluding that they unequivocally required attorneys to provide advice about the immigration consequences of a guilty plea.” Id., at 1114. Although, as I have indicated, the United States Supreme Court has taken a broad view of what constitutes a new rule, it has also stated that “a case does not announce a new rule [when] it [is] merely an application of the principle that governed a prior decision to a different set of facts.” (Emphasis in original; internal quotation marks omitted.) Id., at 1107, quoting in part Teague v. Lane, supra, 489 U.S. at 307, 109 S.Ct. 1060. Thus, whether a rule is new “depends in large part on the nature of the rule. If the rule in question is one which of necessity requires a case-by-case examination of the evidence, then we can tolerate a number of specific applications without saying that those applications themselves create a new rule.” Wright v. West, 505 U.S. 277, 308, 112 S.Ct. 2482, 120 L.Ed.2d 225 (1992) (Kennedy, J., concurring). In other words, “when all [the court does] is apply a general standard to the kind of factual circumstances it was meant to address, [it] will rarely state a new rule for Teague purposes.” Chaidez v. United States, supra, at 1107.
Padilla was the quintessential application of a general standard to a different set of facts. As Justice Sotomayor explained in her dissent, the standard for determining deficient performance under Strickland is “simply reasonableness under prevailing professional norms ... [which] takes its content from the standards by which lawyers judge their professional obligations ... and those standards are subject to change.”(Citations omitted; internal quotation marks omitted.) Id., at 1114. Put another way, the evolving nature of professional norms means that representation that satisfies the sixth amendment one year may not do so the next, but this does not mean that the sixth amendment standard itself changes. Rather, although the Strickland reasonableness standard is pegged to a benchmark that evolves over time, the rule remains the same. “That is why, despite the many different settings in which it has been applied, [the court had] never found that an application of Strickland resulted in a new rule.” Id., at 1114–15 (Sotomayor, J., dissenting).
In Padilla, the court merely applied the standard set forth in Strickland and concluded that, at the time of the petitioner's conviction, prevailing professional norms required attorneys to advise their clients of the immigration consequences of pleading guilty, depending on the severity and certainty of those consequences. Padilla v. Kentucky, supra, 559 U.S. at 366–69, 130 S.Ct. 1473. The court first surveyed the radical changes in immigration law from the early 1900s—when Congress first authorized removal of noncitizens convicted of certain crimes, but also gave state and federal judges the power to make binding recommendations at sentencing to prevent removal—through the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 8 U.S.C. § 1101 et seq., which made removal “practically inevitable” for noncitizens who commit an eligible offense. See id., at 360–64, 130 S.Ct. 1473; see also Chaidez v. United States, supra, 133 S.Ct. at 1116 (Sotomayor, J., dissenting). The court then explained that professional norms had evolved to respond to these changes in immigration law, such that “[a]uthorities of every stripe—including the American Bar Association, criminal defense and public defender organizations, authoritative treatises, and state and city bar publications—universally require defense attorneys to advise as to the risk of deportation consequences for noncitizen clients.” (Internal quotation marks omitted.) Chaidez v. United States, supra, at 1116 (Sotomayor, J., dissenting), quoting Padilla v. Kentucky, supra, at 367, 130 S.Ct. 1473. Thus, when the court in Padilla recognized a shift in defense counsel's obligations under the sixth amendment, it was because prevailing professional norms had evolved in response to changes in immigration law, not because the court viewed the sixth amendment in a substantively different way. In other words, “[b]oth before Padilla and after, counsel was obligated to follow the relevant professional norms. It was only because those norms reflected changes in immigration law that Padilla reached the result it did, not because the [s]ixth [a]mendment right had changed at all.” Chaidez v. United States, supra, at 1117 (Sotomayor, J., dissenting).
Like the court in Chaidez, the majority in the present case relies heavily on the characterization of Padilla as having answered a “threshold” question about the scope of the sixth amendment. I believe that this view of Padilla fails to account for the fact that the court in Padilla answered that question simply by applying the Strickland standard to the facts of the case. As Justice Sotomayor explained in her dissent in Chaidez, the court in Padilla expressly declined to address the distinction between direct and collateral consequences because “deportation has a ‘close connection to the criminal process,’ and is ‘uniquely difficult to classify as either a direct or a collateral consequence.’ ” Id., at 1117, quoting Padilla v. Kentucky, supra, 559 U.S. at 366, 130 S.Ct. 1473. Prior to Padilla, the court had never decided whether counsel's duty to provide advice concerning the collateral consequences of a conviction is within the scope of the sixth amendment, and it still has not done so because Padilla expressly refused to address that question. Because the court concluded that immigration consequences are not collateral, the court ultimately could decide that the sixth amendment does not require attorneys to advise their clients regarding the collateral consequences of a conviction without disturbing the holding of Padilla. Thus, the “chink-free wall between direct and collateral consequences”; Chaidez v. United States, supra, at 1110; remains unbreached.
The fact that the court in Padilla first addressed whether the sixth amendment applied to the claim before it was due to the nature of the decision the court was reviewing and the question for which it had granted review, rather than the nature of the sixth amendment inquiry. The Supreme Court of Kentucky had concluded that deportation was a collateral consequence of a conviction that fell outside the scope of the sixth amendment and, therefore, that the appellee was not entitled to an evidentiary hearing on his ineffective assistance claim. Commonwealth v. Padilla, 253 S.W.3d 482, 484–85 (Ky.2008). As Justice Sotomayor observes in her dissent, the United States Supreme Court rejected that conclusion simply by applying the Strickland standard. Chaidez v. United States, supra, 133 S.Ct. at 1114. Thus, although the court had to address whether immigration consequences fell outside the scope of the sixth amendment because of the Supreme Court of Kentucky's disposition of the case, it answered that question by applying Strickland to determine the obligations of defense counsel under the facts of the case, just as it would for any other ineffective assistance of counsel claim.
That the court in Padilla did not announce a new rule is further supported by the fact that, in addressing a claim under Padilla, a habeas court merely applies the Strickland test as it would for any other ineffective assistance claim. In a standard Strickland–Hill case in which the petitioner claims that his attorney provided ineffective assistance at the plea stage, the petitioner must demonstrate that his attorney's advice was objectively unreasonable, such that it “ ‘fell below an objective standard of reasonableness' ”; Hill v. Lockhart, supra, 474 U.S. at 57, 106 S.Ct. 366; and that, “but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” Id., at 59, 106 S.Ct. 366. This is exactly the inquiry that a habeas court makes when addressing a claim under Padilla. See Padilla v. Kentucky, supra, 559 U.S. at 366–69, 130 S.Ct. 1473 (explaining that performance of criminal defense attorney when advising noncitizen client is to be judged by Strickland reasonableness standard, and counsel's duty in such cases depends on, inter alia, clarity of potential immigration consequences client faces). As in the present case, a petitioner seeking to prevail on a claim under Padilla must show that a reasonably competent attorney would have advised his client regarding the immigration consequences of pleading guilty, and that he would not have pleaded guilty had his attorney provided such advice. Thus, the rule to be applied when a petitioner brings a claim under Padilla is the rule set forth in Strickland and Hill. The habeas court does not apply a “ Padilla rule” because the court in Padilla did not establish a rule—it merely applied the rule established by Strickland and Hill.
I recognize that the majority in Chaidez relied on the fact that, prior to Padilla, the overwhelming majority of courts to address the question concluded that immigrationconsequences are collateral and therefore outside the scope of the sixth amendment. In Connecticut, however, the obligations of defense counsel recognized in Padilla were already required under state law and prevailing professional norms at the time that decision was issued. Contrary to the majority's assertions, there was no binding precedent from this court or the Appellate Court at that time holding that advice regarding immigration consequences was outside the scope of the sixth amendment right to the effective assistance of counsel. All of the case law on which the majority relies addresses what is required of the trial court when canvassing a defendant to ensure that a plea is voluntary under the fifth amendment. See State v. Malcolm, 257 Conn. 653, 662, 778 A.2d 134 (2001) (“only substantial compliance [with General Statutes § 54–1j] is required ... in order to ensure that the plea is voluntary” [footnote omitted] ); State v. Andrews, 253 Conn. 497, 500, 513–14, 752 A.2d 49 (2000) (trial court's failure to advise regarding parole ineligibility did not render plea involuntary); State v. Irala, 68 Conn.App. 499, 520, 792 A.2d 109 (trial court's failure to advise regarding specific immigration consequences does not render plea involuntary), cert. denied, 260 Conn. 923, 797 A.2d 519, cert. denied, 537 U.S. 887, 123 S.Ct. 132, 154 L.Ed.2d 148 (2002). As the majority recognizes in declining to address the petitioner's alternative claim that his plea was involuntary in violation of his right to due process, whether a plea is voluntary under the fifth amendment is a distinct issue from whether defense counsel provided ineffective assistance under the sixth amendment. See Lafler v. Cooper, –––U.S. ––––, 132 S.Ct. 1376, 1390, 182 L.Ed.2d 398 (2012) ( “[a]n inquiry into whether the rejection of a plea is knowing and voluntary ... is not the correct means by which to address a claim of ineffective assistance of counsel”). Consequently, our recognition that trial courts are not constitutionally required to “instruct defendants on the intricacies of immigration law”; State v. Malcolm, supra, at 663, 778 A.2d 134; did not, as the majority maintains, have any bearing on defense counsel's obligations under the sixth amendment.
I note, however, that “[t]he standard for determining when a case establishes anew rule is objective, and the mere existence of conflicting authority does not necessarily mean a rule is new.” (Internal quotation marks omitted.) Chaidez v. United States, supra, 133 S.Ct. at 1120 (Sotomayor, J., dissenting). This is especially true with cases involving a governing standard that, like Strickland, will necessarily evolve to reflect current practices. Thus, in the present case, the “earlier decisions show nothing more than that the underlying professional norms had not yet evolved to require attorneys to provide advice about deportation consequences.” Id., at 1118 (Sotomayor, J., dissenting).
In arguing to the contrary, the respondent relies on State v. Aquino, 89 Conn.App. 395, 406–407, 873 A.2d 1075 (2005), in which the Appellate Court concluded that deportation was a collateral consequence outside the scope of the sixth amendment. Subsequently, however, following our grant of certification, we reversed the judgment of the Appellate Court and concluded that that court did not have jurisdiction to address the claim and should have dismissed the appeal as moot. State v. Aquino, 279 Conn. 293, 298–99, 901 A.2d 1194 (2006). Because the Appellate Court did not have jurisdiction over the appeal in Aquino, its discussion of the merits was dicta and not binding on habeas courts at the time Padilla was decided. Cf. State v. Singleton, 274 Conn. 426, 440, 876 A.2d 1 (2005) (“when a court dismisses a case for lack of subject matter jurisdiction, any further discussion of the merits of that case is dicta”).
The majority also notes that, in Chaidez, the court included Connecticut among the jurisdictions to have determined that advice concerning immigration consequences does not fall within the scope of the right to the effective assistance of counsel. See Chaidez v. United States, supra, 133 S.Ct. at 1109 n. 8. The case on which the court in Chaidez relied for that proposition, however, Niver v. Commissioner of Correction, 101 Conn.App. 1, 919 A.2d 1073 (2007), held no such thing. In Niver, the Appellate Court affirmed the habeas court's denial of a claim of ineffective assistance of counsel based on counsel's failure to provide adequate advice regarding the immigration consequences of a plea, and, in setting forth the governing law, stated that “[t]he impact of a plea's immigration consequences ... is not of constitutional magnitude....” (Internal quotation marks omitted.) Id., at 4, 919 A.2d 1073. The court did not resolve the case on those grounds, however, and went on to conclude that counsel's performance was not deficient because he “specifically discussed the potential immigration consequences of [the petitioner's] plea”; id., at 5, 919 A.2d 1073; and that, in any event, the petitioner failed to prove that she was prejudiced. Id., at 5–6, 919 A.2d 1073. Thus, Niver cannot fairly be read to stand for the proposition for which it was cited in Chaidez.
Moreover, some Connecticut cases decided prior to Padilla may be read to suggest that the sixth amendment does require criminal defense attorneys to advise their clients regarding immigration consequences. For example, in State v. Irala, supra, 68 Conn.App. at 500–501, 792 A.2d 109, the defendant sought to withdraw her pleas, claiming, inter alia, that her trial counsel was ineffective for failing to advise her regarding the immigration consequences of her conviction. The trial court denied her motions and, in affirming the trial court's judgments, the Appellate Court concluded that the defendant's attorney had not performed deficiently because he had discussed the immigration consequences of the pleas with the defendant. Id., at 506, 526–27, 792 A.2d 109. Thus, the Appellate Court implicitly accepted that advice regarding immigration consequences did fall within the scope of the sixth amendment, but concluded that counsel in that case met those obligations. Id., at 527, 792 A.2d 109.
At least one habeas court prior to the decision in Padilla found that an attorney had performed deficiently by providing inaccurate advice regarding the immigration consequences to his client of pleading guilty. In Durant v. Coughlin, Superior Court, judicial district of Ansonia–Milford at Milford, Docket No. CV–99–066532, 1999 WL 528832 (July 12, 1999), the court determined that the petitioner's attorney performed deficiently under the sixth amendment by erroneously advising the petitioner that he would not be deported because he was married to a United States citizen. The court determined, however, that the petitioner failed to prove that he was prejudiced by counsel's erroneous advice. See also Dawkins v. Armstrong, Superior Court, judicial district of New London, Docket No. CV–552015, 2001 WL 688617 (May 30, 2001) (addressing petitioner's claim on merits but concluding that petitioner knew he would likely be deported, and, in any event, that petitioner was not prejudiced). Thus, the majority is incorrect that, at the time Padilla was decided, the courts of this state held that advice regarding immigration consequences is outside the scope of the sixth amendment.
Although our case law had not yet definitively answered the question that the court resolved in Padilla regarding the scope of the sixth amendment, Connecticut law was consistent with the result in that case. As Justice Eveleigh observes, Connecticut frequently has been ahead of our sister states and the federal government in recognizing the right to counsel, having guaranteed that right long before it was formally incorporated into our state constitution in 1818. In 1917, Connecticut was the first state to establish a public defender system, decades before the United States Supreme Court, in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), recognized that the federal constitution requires states to provide counsel to indigent criminal defendants. In addition to recognizing the paramount importance of the right to counsel generally, this court has specifically held that state law guarantees the right to the effective assistance of counsel even where it is not required by the federal constitution, ensuring that Connecticut residents are not stripped of important rights without competent representation. See Lozada v. Warden, 223 Conn. 834, 838, 842–43, 613 A.2d 818 (1992) (recognizing right to effective assistance of counsel in habeas proceedings); cf. State v. Anonymous, 179 Conn. 155, 159–60, 425 A.2d 939 (1979) (statutory right to counsel in termination of parental rights proceeding implicitly includes right to effective assistance of counsel).
The criminal defense bar in Connecticut has long been aware that noncitizen defendants often give great weight to immigration consequences when deciding whether to accept or to reject a guilty plea. As the habeas court found, prevailing professional norms and statutory law at the time of the petitioner's plea required criminal defense attorneys to advise their clients regarding the immigration consequences of pleading guilty. The habeas court credited the testimony of the petitioner's expert witnesses, Attorney Anthony D. Collins and Attorney Christopher Caldwell, who both testified regarding prevailing professional norms in Connecticut at the time the petitioner pleaded guilty in 2007. Specifically, Collins and Caldwell both testified that a reasonably competent defense attorney representing a noncitizen in 2007 had a duty to avoid allowing her client to be convicted of an aggravated felony “at all costs,” to explain to her client the immigration consequences of such a conviction, and to seek an alternate disposition through plea negotiations. Moreover, as discussed by Justice Eveleigh in greater detail, training available to criminal defense attorneys at that time provided detailed guidance on representing noncitizen defendants in Connecticut, suggesting that the defense bar was well aware of the need to advise such clients regarding the immigration consequences of a conviction.
That prevailing professional norms were consistent with the holding in Padilla is further supported by Connecticut statutory law, which has long recognized the importance of ensuring that criminal defendants understand that pleading guilty may carry immigration consequences. The legislature enacted § 54–1j in 1982, requiring trial court judges to advise defendants that pleading guilty may carry the risk of deportation; see Public Acts 1982, No. 82–177; and amended it in 2003 to require that judges provide defendants the opportunity to discuss any potential immigration consequences with their counsel before the court may accept a guilty plea. See Public Acts 2003, No. 03–81, § 1. The 2003 amendment is particularly persuasive proof of prevailing professional norms at the time of the petitioner's plea. Even if professional norms had not yet evolved to the point that defense counsel recognized their obligation to advise their clients regarding immigration consequences prior to 2003, that amendment surely put the defense bar on notice of that duty. Thus, although no Connecticut case had yet recognized that the sixth amendment required defense counsel to advise noncitizen defendants regarding the immigration consequences of a conviction, our statutory law and the actual practices of the legal community were fully in accord with the dictates of Padilla at least as early as 2003.
Finally, the finality concerns raised by the majority that traditionally counsel against applying a decision retroactively on collateral review are not implicated in the present case because the number of noncitizens who would be eligible for relief in Connecticut is limited, and the number who would actually be able to obtain relief is further limited by the Strickland standard. As the petitioner has underscored, a decision to apply Padilla retroactively in state habeas proceedings would only lead to a new trial for those who, like the petitioner: (1) are noncitizens; (2) have pleaded guilty to an offense that would result in their removal; (3) whose convictions became final before 2010; (4) have not yet been deported; (5) were not advised that pleading guilty would subject them to removal; (6) pleaded guilty at a time when a reasonably competent attorney would have provided such advice; (7) would not have pleaded guilty had they been so advised; and (8) can prove that such a decision would have been a rational one under the circumstances. These requirements will make it exceedingly difficult for a petitioner to prevail under Padilla on collateral review.
Although the majority cites four cases in which Padilla claims were rejected in the eight months following Chaidez as evidence that “the petitioner's claim that retroactive application of Padilla in Connecticut will have a limited effect is belied by the facts,” the majority fails to acknowledge that, in three of those cases, the habeas court denied the claim on the merits. See Gonzalez v. Commissioner of Correction, 145 Conn.App. 28, 30, 74 A.3d 509 (noting habeas court determined that counsel adequately advised petitioner regarding immigration consequences), cert. denied, 310 Conn. 929, 78 A.3d 145 (2013); Saksena v. Commissioner of Correction, Superior Court, judicial district of Tolland, Docket No. CV–08–4002306–S, 2011 WL 10065500 (June 2, 2011) (same), aff'd, 145 Conn.App. 152, 158–59, 76 A.3d 192, cert. denied, 310 Conn. 940, 79 A.3d 892 (2013); Alcena v. Warden, Superior Court, judicial district of Tolland, Docket No. CV–10–4003448–S, 2011 WL 9528334 (May 5, 2011) (same; also determined that petitioner did not establish prejudice). The court in the fourth case did not reach the merits, rejecting the claim on the ground that Padilla did not apply retroactively. Gjini v. Warden, Superior Court, judicial district of Tolland, Docket No. CV–10–4003834–S, 2013 WL 1189407 (March 6, 2013). These cases do not support the majority's concerns that applying Padilla retroactively would lead to a flood of new trials; in fact, they demonstrate that the Strickland standard adequately protects the state's interest in the finality of convictions.
The Strickland standard itself also would limit the number of petitioners entitled to relief, adequately protecting the finality of convictions and preventing a flood of overturned convictions. In determining whether an attorney's performance was constitutionally deficient, Strickland expressly instructs courts to “eliminate the distorting effects of hindsight” and to “evaluate the conduct from counsel's perspective at the time.” Strickland v. Washington, supra, 466 U.S. at 689, 104 S.Ct. 2052. This means that whether an attorney's advice was constitutionally deficient depends on whether the advice conformed to professional norms at the time of the plea. While it is clear that professional norms in Connecticut required defense counsel to advise their clients about immigration consequences at the time the petitioner pleaded guilty in 2007, the claims of noncitizens who pleaded guilty prior to that date would be judged by the professional norms as of the date of their pleas. In addition, under Strickland 's prejudice prong, a defendant must prove that, if he had been advised about the risk of deportation, “he would not have pleaded guilty and would have insisted on going to trial”; Hill v. Lockhart, supra, 474 U.S. at 59, 106 S.Ct. 366; and that “a decision to reject the plea bargain would have been rational under the circumstances.” Padilla v. Kentucky, supra, 559 U.S. at 372, 130 S.Ct. 1473. This difficult task is especially challenging in cases alleging a violation of Padilla because the petitioner must convince the habeas court that he would have insisted on a trial even though he likely would face a substantially greater sentence upon conviction, and then would still be subject to deportation after serving that sentence. As the court observed in Padilla, “[t]he nature of relief secured by a successful collateral challenge to a guilty plea—an opportunity to withdraw the plea and proceed to trial—imposes its own significant limiting principle: [t]hose who collaterally attack their guilty pleas lose the benefit of the bargain obtained as a result of the plea. Thus, a different calculus informs whether it is wise to challenge a guilty plea in a habeas proceeding because, ultimately, the challenge may result in a less favorable outcome for the [petitioner]....” (Emphasis in original.) Id., at 372–73, 130 S.Ct. 1473. For these reasons, it is highly unlikely that applying Padilla retroactively will lead to an appreciable number of new trials.
The refusal of the United States Supreme Court to apply Padilla retroactively in federal habeas proceedings is understandable, given the much larger pool of noncitizens to whom such a decision would apply and the comity considerations necessarily implicated by any such decision. Those concerns, however, simply do not apply to our decision whether to apply Padilla retroactively. As discussed previously, moreover, prevailing professional norms and statutory law in Connecticut required defense attorneys to advise their clients regarding immigration consequences long before the court in Padilla formally recognized that requirement under the sixth amendment. I would conclude, therefore, that Padilla did not announce a new rule under Connecticut law, and that the habeas court properly applied Padilla retroactively to the petitioner's claim.
II
I now turn to the merits of the petitioner's ineffective assistance claim. In light of its findings, which are supported by the record, the habeas court properly found that Imhoff's performance was objectively unreasonable. The habeas court found that, at the time the petitioner pleaded guilty, a reasonably competent attorney would have been aware that possession of narcotics with intent to sell in violation of § 21a–277 (a) constitutes an aggravated felony. The habeas court further found that a reasonably competent attorney in Imhoff's position would have advised the petitioner that, upon conviction of an aggravated felony, he would be subject to mandatory removal from the United States, ineligible for virtually all defenses to removal, and permanently barred from returning to the United States. Consistent with Padilla, the habeas court noted that, because the law regarding the immigration consequences of the petitioner's conviction was “clear and succinct,” Imhoff had a duty to provide the petitioner with correct advice regarding those consequences. See Padilla v. Kentucky, supra, 559 U.S. at 368–69, 130 S.Ct. 1473. The habeas court further found that Imhoff failed to meet that standard because he “was unaware of the specific consequences of the petitioner's plea in this case and as a result was unable to, and did not, provide clear and accurate advice.” Rather than correctly advising the petitioner that a conviction under § 21a–277 (a) would constitute an aggravated felony, virtually assuring that he would be permanently removed from the United States, Imhoff gave the petitioner vague advice that did not impress upon him the grave and certain nature of the immigration consequences he faced. As the habeas court also stated, “[a]dvising the petitioner, who was indigent and incarcerated, to obtain and consult with an immigration attorney, when he had no ability or resources to do so,” fell below the standard expected of reasonably competent counsel under the sixth amendment.
The habeas court also found that this is one of the rare cases in which the evidence establishes that, had the petitioner been advised about the immigration consequences of his guilty plea, he would have insisted on going to trial, and that such a decision would have been “rational under the circumstances.” Padilla v. Kentucky, supra, 559 U.S. at 372, 130 S.Ct. 1473. The petitioner, who has been a permanent resident of the United States for almost twenty years, has strong family ties to this country in general and to Connecticut in particular, and no family connections in Haiti whatsoever. Although this may be true of many noncitizens—and alone, likely to be insufficient to satisfy the prejudice prong of the Strickland–Hill test—the petitioner's case is compelling given the extremely harsh conditions that he would face upon his return to Haiti. As the habeas court found, criminal deportees to Haiti are subject to “deplorable and inhumane conditions” that include being held in an overcrowded cell where disease is rampant and temperatures reach 100 degrees, with no bathroom facilities or access to medical care. As deplorable as the conditions are in Haiti for criminal deportees generally, the petitioner likely would be treated even more harshly because of his disability, as “disabled persons ... are treated as outcasts in prison and in society generally” and “[a]n amputee, like the [petitioner], would not be provided a wheelchair or prosthesis in the holding cells, or any medical treatment or medications.” It is no wonder, then, that the habeas court credited the petitioner's testimony that “he would have risked spending significantly more time in jail in this country rather than be deported to Haiti.”
Although it ordinarily is well-nigh impossible for a petitioner to prove that it would have been objectively reasonable to forgo a favorable plea agreement that offers a dramatically reduced jail sentence and insist on a trial when, as in the present case, the state had overwhelming evidence of guilt—especially in view of the fact that the petitioner is subject to mandatory deportation after serving his sentence—the petitioner's case presents extraordinary circumstances that justify affording him relief. I would conclude, therefore, that the habeas court properly determined that the petitioner was deprived of his right to the effective assistance of counsel. Accordingly, I respectfully dissent. EVELEIGH, J., with whom McDONALD, J., joins, dissenting.
I respectfully dissent. I disagree with the majority's conclusion that Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), does not apply retroactively to the guilty plea of the petitioner, Emmanuel Thiersaint. Instead, I would apply Padilla to the petitioner's claim and would conclude that the advice given by the petitioner's counsel constituted ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Accordingly, I respectfully dissent.
As the majority has explained, the resolution of the respondent's first claim on appeal requires us to determine whether the rule announced in Padilla applies retroactively to the petitioner's guilty plea or whether it was a new rule. I agree with the factual and procedural history set forth in the majority opinion. I also agree with the majority regarding the standard of review governing the petitioner's claim. “Although the underlying historical facts found by the habeas court may not be disturbed unless they were clearly erroneous, whether those facts constituted a violation of the petitioner's rights 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.... This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution.... It is axiomatic that the right to counsel is the right to the effective assistance of counsel.” (Citations omitted; internal quotation marks omitted.) Gonzalez v. Commissioner of Correction, 308 Conn. 463, 469–70, 68 A.3d 624, cert. denied sub nom. Dzurenda v. Gonzalez, ––– U.S. ––––, 134 S.Ct. 639, 187 L.Ed.2d 445 (2013).
In Padilla v. Kentucky, supra, 559 U.S. at 366, 130 S.Ct. 1473 the United States Supreme Court concluded that the Strickland standard for effective assistance of counsel applied to a petitioner's claim that his counsel had improperly failed to advise him of the immigration consequences of a guilty plea. In doing so, the United States Supreme Court recognized that “[d]eportation as a consequence of a criminal conviction is, because of its close connection to the criminal process, uniquely difficult to classify as either a direct or a collateral consequence. The collateral versus direct distinction is thus ill suited to evaluating a Strickland claim concerning the specific risk of deportation. We conclude that advice regarding deportation is not categorically removed from the ambit of the [s]ixth [a]mendment right to counsel. Strickland applies to [the petitioner's] claim.” Id.
The United States Supreme Court further concluded that the petitioner had satisfied the first prong of Strickland because “the terms of the relevant immigration statute are succinct, clear, and explicit in defining the removal consequence for [the petitioner's] conviction.... [The petitioner's] counsel could have easily determined that his plea would make him eligible for deportation simply from reading the text of the statute, which addresses not some broad classification of crimes but specifically commands removal for all controlled substances convictions except for the most trivial of marijuana possession offenses. Instead, [the petitioner's] counsel provided him false assurance that his conviction would not result in his removal from this country. This is not a hard case in which to find deficiency: The consequences of [the petitioner's] plea could easily be determined from reading the removal statute, his deportation was presumptively mandatory, and his counsel's advice was incorrect.” (Citation omitted.) Id., at 368–69, 130 S.Ct. 1473.
The United States Supreme Court further recognized the following: “Immigration law can be complex, and it is a legal specialty of its own. Some members of the bar who represent clients facing criminal charges, in either state or federal court or both, may not be well versed in it. There will, therefore, undoubtedly be numerous situations in which the deportation consequences of a particular plea are unclear or uncertain. The duty of the private practitioner in such cases is more limited. When the law is not succinct and straightforward ... a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear.” (Footnote omitted.) Id., at 369, 130 S.Ct. 1473.
In Chaidez v. United States, ––– U.S. ––––, 133 S.Ct. 1103, 1105, 185 L.Ed.2d 149 (2013), the United States Supreme Court considered whether the ruling in Padilla “that the sixth amendment requires an attorney for a criminal defendant to provide advice about the risk of deportation arising from a guilty plea” applies “retroactively, so that a person whose conviction became final before we decided Padilla can benefit from it.” The United States Supreme Court considered the claim in Chaidez under the principles set out in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989).
In Teague, the United States Supreme Court held that a criminal defendant cannot collaterally attack a conviction on the basis of a new rule of criminal procedure identified after the conviction became final. Id., at 299, 109 S.Ct. 1060. Thus, where a “ ‘new rule’ ” is announced, “a person whose conviction is already final may not benefit from the decision in a habeas or similar proceeding.” Chaidez v. United States, supra, 133 S.Ct. at 1107. A “case announces a new rule when it breaks new ground or imposes a new obligation” on the government; that is, the result of the case “was not dictated by precedent existing at the time the defendant's conviction became final”; (emphasis omitted; internal quotation marks omitted) Teague v. Lane, supra, 489 U.S. at 333, 109 S.Ct. 1060; or was not “apparent to all reasonable jurists.” (Internal quotation marks omitted.) Chaidez v. United States, supra, at 1107. The court in Teague did, however, recognize two important exceptions to the nonretroactivity rule. “First, a new rule should be applied retroactively if it places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe.... Second, a new rule should be applied retroactively if it requires the observance of those procedures that ... are implicit in the concept of ordered liberty.” (Citation omitted; internal quotation marks omitted.) Teague v. Lane, supra, at 307, 109 S.Ct. 1060.
In Chaidez, the United States Supreme Court reasoned as follows: “Before Padilla, we had declined to decide whether the [s]ixth [a]mendment had any relevance to a lawyer's advice about matters not part of a criminal proceeding. Perhaps some advice of that kind would have to meet Strickland 's reasonableness standard—but then again, perhaps not: No precedent of our own ‘dictated’ the answer.... All we say here is that Padilla 's holding that the failure to advise about a [noncriminal] consequence could violate the [s]ixth [a]mendment would not have been—in fact, was not—‘apparent to all reasonable jurists' prior to our decision.... Padilla thus announced a ‘new rule.’ ” (Citations omitted; emphasis omitted; footnote omitted.) Chaidez v. United States, supra, 133 S.Ct. at 1110–11. The United States Supreme Court, accordingly, refused to apply the Padilla rule retroactively to the petitioner's federal habeas claim for ineffective assistance of counsel related to her counsel's failure to inform her of the immigration consequences of her guilty plea. Id.
Although I agree with the majority that Chaidez controls the question as it relates to federal habeas claims, I disagree with the majority's failure to fully recognize the impact of Danforth v. Minnesota, 552 U.S. 264, 128 S.Ct. 1029, 169 L.Ed.2d 859 (2008), and its progeny on state habeas claims. In Danforth, the United States Supreme Court recognized that “the Teague rule of nonretroactivity was fashioned to achieve the goals of federal habeas while minimizing federal intrusion into state criminal proceedings. It was intended to limit the authority of federal courts to overturn state convictions—not to limit a state court's authority to grant relief for violations of new rules of constitutional law when reviewing its own ... convictions.” Id., at 280–81, 128 S.Ct. 1029. The court further stated that because “[f]ederalism and comity considerations are unique to federal habeas review of state convictions ... comity militate[s] in favor of allowing state courts to grant habeas relief to a broader class of individuals than is required by Teague.” (Citations omitted; emphasis omitted.) Id., at 279–80, 128 S.Ct. 1029. Therefore, the United States Supreme Court made clear that the decision of whether to apply a new rule in a state habeas proceeding is left entirely to the state.
Indeed, in Luurtsema v. Commissioner of Correction, 299 Conn. 740, 753 n. 14, 12 A.3d 817 (2011), this court recognized that, “[u]nder Teague, new rules of criminal procedure do not apply retroactively to already final judgments in federal habeas proceedings unless they fall under one of several specified exceptions. Teague v. Lane, supra, [489 U.S. at 310, 109 S.Ct. 1060.] Although this court has in the past applied the Teague framework to state habeas proceedings as well; see, e.g., Johnson v. Warden, 218 Conn. 791, 797, 591 A.2d 407 (1991); the United States Supreme Court recently held in Danforth v. Minnesota, [supra, 552 U.S. at 282, 128 S.Ct. 1029], that the restrictions Teague imposes on the fully retroactive application of new procedural rules are not binding on the states.” (Emphasis added.)
The majority states that “[c]ontrary to the petitioner's suggestion, our reference in Luurtsema to Danforth did not mean that this court was not bound by Teague, but, rather, was intended to describe the reasoning in Danforth.” I disagree. In my view, in Luurtsema, this court recognized that Danforth changed the landscape of this area of state law and we were no longer required to follow Teague for state habeas claims that involved application of new procedural rules. Although Luurtsema did not involve the retroactive application of a procedural rule, it clearly indicated an intention by this court to reconsider whether Teague would apply to Connecticut habeas proceedings involving retroactive application of procedural rules when a case presented that issue.
I also disagree with the majority's statement that “[f]urthermore, even the petitioner has recognized that, on the few occasions when Connecticut courts have considered Teague, they have applied its principles without hesitation.” First, two of the cases cited by the majority, Duperry v. Solnit, 261 Conn. 309, 312, 803 A.2d 287 (2002), and Johnson v. Warden, supra, 218 Conn. at 796–98, 591 A.2d 407, were decided long before Danforth made clear that the decision of whether to apply a new rule in a state habeas proceeding is left entirely to the state. Accordingly, these cases are not relevant to the inquiry in the present case, namely, whether, in light of Danforth, this state will choose to apply the new procedural rule established in Padilla retroactively in state habeas proceedings.
The only other case from this court cited by the majority for the proposition that “when Connecticut courts have considered Teague, they have applied its principles without hesitation” is State v. Payne, 303 Conn. 538, 34 A.3d 370 (2012). First, Payne was not a habeas proceeding. Id., at 541, 34 A.3d 370. Instead, in Payne, this court considered whether the trial court properly joined the defendant's felony murder and jury tampering cases for trial. Id., at 541–42, 34 A.3d 370. In Payne, this court adopted a new burden of proof concerning joinder at trial and applied it in the defendant's direct appeal in that case. Id., at 549–50, 34 A.3d 370. In a footnote, this court stated as follows: “Because this rule of law pertains to the party bearing the burden of proof, it is procedural, and not substantive, and therefore will not apply retroactively in habeas proceedings. See Luurtsema v. Commissioner of Correction, [supra, 299 Conn. at 753–54, 12 A.3d 817]; see also Bousley v. United States, 523 U.S. 614, 620, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (‘unless a new rule of criminal procedure is of such a nature that without [it] the likelihood of an accurate conviction is seriously diminished ... there is no reason to apply the rule retroactively on habeas review’ ...).” State v. Payne, supra, at 550 n. 10, 34 A.3d 370. As explained previously herein, in Luurtsema, this court explicitly recognized that the restrictions Teague imposes on the fully retroactive application of new procedural rules are not binding on the states and left that question open. In my view, the citation to Luurtsema in Payne is misplaced and cannot be considered in this court's resolution of how to apply the restrictions of Teague in state habeas proceedings.
The majority cites to three decisions from the Appellate Court and one from the Superior Court that rejected the retroactive application of Padilla to state habeas claims after Chaidez. See Alcena v. Commissioner of Correction, 146 Conn.App. 370, 374–75, 76 A.3d 742 (per curiam), cert. denied, 310 Conn. 948, 80 A.3d 905 (2013); Saksena v. Commissioner of Correction, 145 Conn.App. 152, 158–59, 76 A.3d 192, cert. denied, 310 Conn. 940, 79 A.3d 892 (2013); Gonzalez v. Commissioner of Correction, 145 Conn.App. 28, 33, 74 A.3d 509 (per curiam), cert. denied, 310 Conn. 929, 78 A.3d 145 (2013); Gjini v. Warden, Superior Court, judicial district of Tolland, Docket No. CV–10–4003834–S, 2013 WL 1189407 (March 6, 2013). A review of these decisions demonstrates that two of the three Appellate Court decisions, Alcena and Gonzalez, were per curiam opinions that applied Chaidez in one sentence without any analysis. Alcena v. Commissioner of Correction, supra, at 374; Gonzalez v. Commissioner of Correction, supra, at 33, 74 A.3d 509. In the third Appellate Court decision, Saksena, the petitioner had conceded in his supplemental brief that Padilla did not apply, so the court did not engage in any analysis of the issue whatsoever. Saksena v. Commissioner of Correction, supra, at 158, 76 A.3d 192. The Superior Court's analysis in Gjini v. Warden, supra, is equally conclusory. Furthermore, none of the Connecticut cases cited by the majority analyzed the claim in light of Connecticut's unique constitutional and statutory framework. Accordingly, these decisions are not persuasive authority and can hardly represent this state's law regarding whether Padilla should apply retroactively to state habeas claims.
The majority claims that I “[miss] the point that [these cases] are cited only to show that, contrary to the petitioner's assertion, the retroactive application of Padilla could result in the filing of a large number of claims because the pool of potential applicants is not necessarily extremely limited.” See footnote 12 of the majority opinion. First, I disagree with the majority that the retroactive application of Padilla could result in the filing of a large number of claims because the majority of the individuals with convictions similar to the petitioner's would likely already have been deported because the petitioner's deportation was only halted because of the political situation in Haiti. Second, even if the retroactive application of Padilla does result in the filing of a large number of claims, I disagree that this is a valid reason not to retroactively apply a rule that implicates the fundamental fairness of the plea process and is so central to the validity of the plea. The fundamental fairness of the plea process should trump any floodgates argument. Moreover, in order to challenge a conviction under Padilla, an individual must still meet the stringent test of Strickland. Accordingly, I am not persuaded by the majority's argument that applying Padilla retroactively to state habeas proceedings would result in the filing of a large number of claims.
Having concluded that we are not bound by a strict adherence to Teague, I would undertake a close examination of the United States Supreme Court's opinion in Teague to determine how to apply its principles in this state habeas proceeding. In Teague, the petitioner in a federal habeas proceeding claimed that the United States Supreme Court should adopt a new rule applying the sixth amendment's fair cross section requirement to the petit jury. Teague v. Lane, supra, 489 U.S. at 299, 109 S.Ct. 1060. The United States Supreme Court refused to address the petitioner's claim because it concluded, as a threshold matter, that “the rule urged by [the] petitioner should not be applied retroactively to cases on collateral review....” Id.
In deciding the threshold issue of retroactive application, the United States Supreme Court acknowledged that “[t]his retroactivity determination would normally entail application of the [standard set forth in Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965) ], but we believe that our approach to retroactivity for cases on collateral review requires modification.” Teague v. Lane, supra, 489 U.S. at 301, 109 S.Ct. 1060. The United States Supreme Court then explained that, “[i]t is admittedly often difficult to determine when a case announces a new rule, and we do not attempt to define the spectrum of what may or may not constitute a new rule for retroactivity purposes. In general, however, a case announces a new rule when it breaks new ground or imposes anew obligation on the [s]tates or the [f]ederal [g]overnment.” Id.
“The Linkletter retroactivity standard has not led to consistent results. Instead, it has been used to limit application of certain new rules to cases on direct review, other new rules only to the defendants in the cases announcing such rules, and still other new rules to cases in which trials have not yet commenced.” Id., at 302, 109 S.Ct. 1060. The court in Teague then traced the recent history of the Linkletter rule and the rejection of that rule as follows: “Dissatisfied with the Linkletter standard, Justice Harlan advocated a different approach to retroactivity. He argued that new rules should always be applied retroactively to cases on direct review, but that generally they should not be applied retroactively to criminal cases on collateral review. See Mackey v. United States, [401 U.S. 667, 675, 91 S.Ct. 1160, 28 L.Ed.2d 404] (1971) (opinion concurring in judgments in part and dissenting in part); Desist [ v. United States, 394 U.S. 244, 256, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969) (Harlan, J., dissenting) ].
“In Griffith v. Kentucky, [479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649] (1987), we rejected as unprincipled and inequitable the Linkletter standard for cases pending on direct review at the time a new rule is announced, and adopted the first part of the retroactivity approach advocated by Justice Harlan. We agreed with Justice Harlan that ‘failure to apply a newly declared constitutional rule to criminal cases pending on direct review violates basic norms of constitutional adjudication.’ [Id., at 322, 107 S.Ct. 708]. Although new rules that constituted clear breaks with the past generally were not given retroactive effect under the Linkletter standard, we held that ‘a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a “clear break” with the past.’ ” (Citations omitted.) Teague v. Lane, supra, 489 U.S. at 303–305, 109 S.Ct. 1060.
In Teague, the United States Supreme Court also recognized that although Justice Harlan believed that new rules generally should not be applied retroactively to cases on collateral review, he “identified only two exceptions to his general rule of nonretroactivity for cases on collateral review. First, a new rule should be applied retroactively if it places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe.... Second, a new rule should be applied retroactively if it requires the observance of those proceduresthat ... are implicit in the concept of ordered liberty.” (Citation omitted; internal quotation marks omitted.) Id., at 307, 109 S.Ct. 1060. The court in Teague concluded that “we now adopt Justice Harlan's view of retroactivity for cases on collateral review. Unless they fall within an exception to the general rule, new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced.” Id., at 310, 109 S.Ct. 1060.
The court in Teague then explained that they applied the second exception suggested by Justice Harlan with a modification. Specifically, the court in Teague recognized that the second exception was to allow the retroactive application of new rules where the “procedure at issue must implicate the fundamental fairness of the trial” and “be so central to an accurate determination of innocence or guilt....” Id., at 312–13, 109 S.Ct. 1060. The court in Teague then concluded that “[b]ecause the absence of a fair cross section on the jury venire does not undermine the fundamental fairness that must underlie a conviction or seriously diminish the likelihood of obtaining an accurate conviction, we conclude that a rule requiring that petit juries be composed of a fair cross section of the community would not be a ‘bedrock procedural element’ that would be retroactively applied under the second exception we have articulated.” Id., at 315, 109 S.Ct. 1060.
The court in Teague commented that “[t]he language used by Justice Harlan in Mackey leaves no doubt that he meant the second exception to be reserved for watershed rules of criminal procedure: ‘Typically, it should be the case that any conviction free from federal constitutional error at the time it became final, will be found, upon reflection, to have been fundamentally fair and conducted under those procedures essential to the substance of a full hearing. However in some situations it might be that time and growth in social capacity, as well as judicial perceptions of what we can rightly demand of the adjudicatory process, will properly alter our understanding of the bedrock procedural elements that must be found to vitiate the fairness of a particular conviction. For example, such, in my view, is the case with the right to counsel at trial now held a necessary condition precedent to any conviction for a serious crime.’ [Mackey v. United States, supra, 401 U.S. at 693–94, 91 S.Ct. 1160].” (Emphasis in original.) Teague v. Lane, supra, 489 U.S. at 311–12, 109 S.Ct. 1060.
As I have explained previously in this opinion, this court is not bound to apply the framework of Teague to state habeas proceedings. Although I agree with the majority that many states have applied Teague in deciding state habeas claims, I find it instructive that the majority of those decisions were prior to Danforth, which made clear that states were not required to follow Teague for purposes of their state habeas proceedings. See footnote 11 of the majority opinion. Indeed, only twelve of the decisions cited by the majority occurred after Danforth.
Of the twelve decisions cited by the majority that apply a Teague analysis of retroactivity after Danforth, only four of those decisions involve the retroactive application of Padilla. Furthermore, in most of the decisions cited by the majority, the courts do not indicate that their respective state constitutions provide greater protections than the federal constitution. See, e.g., In re Gomez, 45 Cal.4th 650, 655, 199 P.3d 574, 88 Cal.Rptr.3d 177 (2009) (“[o]rdinarily, we will provide a remedy on collateral review of a final judgment if that remedy would be available in the federal courts”). As I explain more fully herein, this court has consistently held that the right to counsel under our state constitution is broader than the right to counsel under the federal constitution. Accordingly, the analysis in these cases is not persuasive to the question presented in the present appeal.
Instead, I find persuasive the decisions of the Nevada Supreme Court in Colwell v. State, 118 Nev. 807, 59 P.3d 463 (2002) (per curiam), cert. denied, 540 U.S. 981, 124 S.Ct. 462, 157 L.Ed.2d 370 (2003), and the Idaho Supreme Court in Rhoades v. State, 149 Idaho 130, 233 P.3d 61 (2010), cert. denied, ––– U.S. ––––, 131 S.Ct. 1571, 179 L.Ed.2d 477 (2011). Both Nevada and Idaho have adopted modified versions of the Teague test. Colwell v. State, supra, at 819, 59 P.3d 463; Rhoades v. State, supra, at 136, 233 P.3d 61.
In Colwell v. State, supra, 118 Nev. at 818–19, 59 P.3d 463, the Nevada Supreme Court stated as follows: “Though we consider the approach to retroactivity set forth in Teague to be sound in principle, the [United States] Supreme Court has applied it so strictly in practice that decisions defining a constitutional safeguard rarely merit application on collateral review.... We appreciate that strictly constraining retroactivity serves the [United States] Supreme Court's purpose of circumscribing federal habeas review of state court decisions, but as a state court we choose not to bind quite so severely our own discretion in deciding retroactivity. We therefore choose to adopt with some qualification the approach set forth in Teague. We adopt the general framework of Teague, but reserve our prerogative to define and determine within this framework whether a rule is new and whether it falls within the two exceptions to nonretroactivity (as long as we give new federal constitutional rules at least as much retroactive effect as Teague does).” (Footnotes omitted.)
The Nevada Supreme Court further concluded that “consistent with the Teague framework, we will not apply a new constitutional rule of criminal procedure to finalized cases unless it falls within either of two exceptions. There is no bright-line rule for determining whether a rule is new, but there are basic guidelines to follow.... When a rule is new, it will still apply retroactively in two instances: (1) if the rule establishes that it is unconstitutional to proscribe certain conduct as criminal 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. These are basically the exceptions defined by the [United States] Supreme Court. But we do not limit the first exception to ‘primary, private individual’ conduct, allowing the possibility that other conduct may be constitutionally protected from criminalization and warrant retroactive relief. And with the second exception, we do not distinguish a separate requirement of ‘bedrock’ or ‘watershed’ significance: if accuracy is seriously diminished without the rule, the rule is significant enough to warrant retroactive application.” (Footnotes omitted.) Id., at 819–20, 59 P.3d 463. In adopting the modified approach, the Nevada Supreme Court reasoned that “this adaptation of the approach taken in Teague and its progeny provides us with a fair and straightforward framework for determining retroactivity.” Id., at 820, 59 P.3d 463.
Similarly, the Idaho Supreme Court adopted the Teague approach when determining whether decisions of the United States Supreme Court and the appellate courts of Idaho should be given retroactive effect. Rhoades v. State, supra, 149 Idaho at 136, 233 P.3d 61. Nevertheless, the Idaho Supreme Court reasoned that “[w]hile the [United States] Supreme Court has strictly interpreted Teague to avoid excessive interference by federal habeas courts in state criminal convictions that have become final, this [c]ourt does not have a similar concern for comity when interpreting whether a decision pronounces a new rule of law for purposes of applying Teague. As the holding in Danforth ... makes clear, when deciding whether to give retroactive effect to a decision of the [United States] Supreme Court, this [c]ourt is not required to blindly follow that court's view of what constitutesa new rule or whether a new rule is a watershed rule.” Id., at 139, 233 P.3d 61. Instead, the Idaho Supreme Court concluded 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 our long-standing jurisprudence.’ State v. Donato, 135 Idaho 469, 472, (2001) (noting that when this [c]ourt has found that the Idaho [c]onstitution provides greater protection than the [United States constitution], it has done so, ‘on the uniqueness of our state, our [c]onstitution, and our long-standing jurisprudence’).” Rhoades v. State, supra, at 139, 233 P.3d 61.
Like the Nevada Supreme Court and the Idaho Supreme Court, I would conclude that this court should adopt the principles of Teague, but in deciding whether to give retroactive effect to a new rule, this court should exercise independent judgment on the basis of the unique requirements of our state constitution, judicial precedents and statutory framework. Furthermore, I would conclude that in implementing the second exception in Teague, “if accuracy is seriously diminished without the rule, the rule is significant enough to warrant retroactive application.” Colwell v. State, supra, 118 Nev. at 820, 59 P.3d 463. Indeed, if the rule is so central to an accurate plea or conviction and the fundamental fairness of a trial or plea is seriously diminished without the rule, the rule is significant enough to warrant retroactive application. See Teague v. Lane, supra, 489 U.S. at 312–13, 109 S.Ct. 1060 (“procedure at issue must implicate the fundamental fairness of the trial” and “be so central to an accurate determination of innocence or guilt”).
The majority asserts that “[r]egardless of how Justice Eveleigh's approach is characterized, it virtually swallows the exception because it allows the court to decide whether a constitutional rule is new on the basis of whatever the court finds persuasive, including Connecticut's statutory framework and whether the trial or plea is deemed to be ‘fair’ without application of the rule.” I disagree. The United States Supreme Court in Teague recognized that a new rule regarding a procedure that “implicate[s] the fundamental fairness of the trial” and is “so central to an accurate determination of innocence or guilt” must be applied retroactively. Teague v. Lane, supra, 489 U.S. at 312–13, 109 S.Ct. 1060. In the present case, the habeas court made the finding that the petitioner would not have pleaded guilty to the charge had he been properly advised of the immigration consequences of his plea. It is axiomatic that a plea is only valid if it is knowing, intelligent and voluntary. See Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970) (“[w]aivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences”). Therefore, the accuracy of the petitioner's plea is implicated in the present case. The habeas court found that if he had not had inaccurate or misleading information from his attorney, he would not have pleaded guilty. Thus, the inaccurate and misleading information from his attorney compromised the foundation for the petitioner's plea. My position in the present case does not obliterate the second Teague exception, but is merely a logical extension of that exception in light our state's unique constitutional and statutory framework.
It is important to remember that the standard for evaluating whether the second exception applies is not whether the ultimate outcome for the petitioner would have been different (i.e., would a jury ultimately have convicted the defendant). Indeed, we can not make such factual assessments based on the procedural posture of the present case, which resulted in a plea. The appropriate analysis is whether the new rule implicates the fundamental fairness of the process and is so central to the ultimate determination—in this case, a valid guilty plea.
Furthermore, the majority criticizes my approach “because it permits an overly broad interpretation of ‘fundamental fairness.’ ” See footnote 19 of the majority opinion. I did not create the reference to the concept of “fundamental fairness” in the second exception. The United States Supreme Court itself included the concept of “fundamental fairness” as part of the second exception in Teague. See Teague v. Lane, supra, 489 U.S. at 312, 109 S.Ct. 1060 (“[w]e believe it desirable to combine the accuracy element of the Desist version of the second exception with the Mackey requirement that the procedure at issue must implicate the fundamental fairness of the trial”). Therefore, any criticism of having to apply the concept of “fundamental fairness,” is a criticism of Teague itself, which the majority claims to adopt.
Having concluded that we should adopt a modified version of Teague on the basis of the uniqueness of our state constitution, precedents and statutory framework, I turn to whether we should give retroactive effect to the rule announced in Padilla that the sixth amendment right to counsel requires an attorney for a criminal defendant to provide advice about the risk of deportation arising from a guilty plea. I answer that question in the affirmative.
Before addressing whether we should give retroactive effect to Padilla in the present case, it is important to note that the habeas court made a factual finding that “[h]ad the petitioner known that he faced certain and permanent removal from the United States when he pleaded guilty to the charge of possession with intent to sell, he would not have pleaded guilty, but would have insisted on going to trial. The petitioner would prefer a long jail sentence in the United States rather than suffer permanent banishment from the United States to Haiti.” On the basis of that finding, I would conclude that the failure of the petitioner's attorney to inform the petitioner of the immigration consequences of his plea undermines the accuracy of his guilty plea, and leads me to the conclusion that the fundamental fairness of the plea process was seriously flawed.
In making this determination, I first look to the unique requirements and history of the right to counsel under our state constitution. “This state has had a long history of recognizing the significance of the right to counsel, even before that right attained federal constitutional importance. Until 1836, the common law of England denied the services of counsel to a person charged with a felony for anything but advisory guidance on questions of law. Powell v. Alabama, 287 U.S. 45, 60, 53 S.Ct. 55, 77 L.Ed. 158 (1932). This rule was defended largely on the theory that the court itself was counsel for the accused. Id., at 61, 53 S.Ct. 55.
“Although in 1708 Connecticut enacted a law prohibiting pleading for hire without the express consent of the court; State v. Gethers, 197 Conn. 369, 389–90 n. 19, 497 A.2d 408 (1985); the custom of assigning counsel in all criminal cases quickly became the norm. State v. Davis, 199 Conn. 88, 99, 506 A.2d 86 (1986). By the end of the eighteenth century, the Connecticut legislature had abolished all those odious laws arising from the English common law tradition and had assured that any person charged with a crime was entitled to ... counsel....” (Internal quotation marks omitted.) State v. Stoddard, 206 Conn. 157, 164–65, 537 A.2d 446 (1988).
Writing for this court in State v. Stoddard, supra, 206 Conn. at 165, 537 A.2d 446, Chief Justice Peters went on to explain that “[w]hen the customary right to counsel was formally incorporated into the Connecticut constitution in 1818, the advice and services of counsel were regarded as crucial to a criminal defendant at any time, especially given the inability of a defendant to testify in Connecticut in 1818.... More contemporary developments suggest that this state's commitment to securing the right to counsel has not diminished since 1818. Not only was Connecticut the first state to adopt the public defender system ... but the right to counsel was secured to criminal defendants in this state long before the mandate of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 [ (1962) ] (holding that the fourteenth amendment incorporated the sixth amendment right to counsel) ].... The United States Supreme Court has turned to the historical experience of Connecticut in expanding the right to counsel under the federal constitution. Faretta v. California, 422 U.S. 806, 827, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); Powell v. Alabama, supra, [287 U.S. at] 62–63 .” (Citations omitted; internal quotation marks omitted.)
“This rich history demonstrates that ‘the fundamental right to counsel is elevated to the highest order.’ State v. Hamilton, 228 Conn. 234, 260, 636 A.2d 760 (1994) ( Berdon, J., dissenting). Indeed, even before the initiation of the adversarial judicial proceeding—that is, before arraignment—we have held that under our state constitution, a suspect's ‘waiver of presence of counsel can, under certain circumstances, be shown invalid if the police fail to inform a suspect of [his counsel's efforts to communicate with him].’ State v. Stoddard, supra, 206 Conn. [at] 173 . This holding was based on the duty of the police to ‘act reasonably, diligently and promptly to provide counsel [for the suspect] with accurate information and to apprise the suspect of the efforts by counsel.’ Id. [at], 167 . If, under the state constitution, prearraignment waiver of counsel is invalidated when an accused is not informed of his counsel's request to speak to him, it logically follows that there can be no effective postarraignment waiver without the presence of appointed counsel.” State v. Piorkowski, 243 Conn. 205, 229, 700 A.2d 1146 (1997) ( Berdon, J., dissenting).
As the foregoing demonstrates, the right to counsel under our state constitution has a rich history predating that of the right to counsel under the federal constitution and we have repeatedly held that the state constitution affords broader protection of the right to counsel than the federal constitution. I would conclude that the unique and broad protections of the right to counsel under our state constitution weigh in favor of giving retroactive effect to Padilla in a state habeas proceeding.
I next turn to the unique statutory framework of the state. The habeas court found that, at the time of the petitioner's plea in 2007, there existed an “established professional norm in this state, that the defendant's counsel discuss the immigration consequences of his plea with the defendant.” In support of its conclusion the habeas court credited the expert testimony offered by the petitioner that the petitioner's counsel at the time of the plea “also had a duty to inform a noncitizen defendant that if he pleaded guilty to [an aggravated felony] after the completion of his Connecticut sentence, he would not be released but would be turned over to federal immigration authorities and mandatorily detained pending deportation proceedings, that there was no legitimate defense to removal, that he would ultimately be removed from the United States and returned to his country of origin, and that he would be permanently barred from returning....” (Footnote omitted.) Thus, the habeas court found that counsel's obligation in 2007 was not only to mention immigration consequences, but also to provide accurate advice about them. The habeas court further found that the “existence and application” of General Statutes § 54–1j, provided “further evidence” of this established professional norm.
In 1982, the legislature enacted § 54–1j; see Public Acts 1982, No. 82–177; which prohibits judges of the Superior Court from accepting a guilty plea from a defendant unless the court advised the defendant that if he or she is a noncitizen, a conviction could result in deportation. I note that it was not until December 1, 2013, that the Federal Rules of Criminal Procedure required federal courts before accepting a plea to “inform the defendant of, and determine that the defendant understands ... that, if convicted, a defendant who is not a United States citizen may be removed from the United States, denied citizenship, and denied admission to the United States in the future.” Fed.R.Crim.P. 11(b)(1). The Advisory Committee on Federal Rules of Criminal Procedure that recommended the change to the federal rules expressly relied on Padilla 's recognition that an informed plea requires the defendant to be aware of immigration consequences that may result from the plea. Advisory Committee on Federal Rules of Criminal Procedure, “Report of the Advisory Committee on Criminal Rules,” (2010), p. 2, available at http:// www. uscourts. gov/ uscourts/ Rules AndPolicieses Reports/ CR 12– 2010. pdf 174 (last visited March 26, 2015).
In 2003, prior to the petitioner's plea in the present action, the legislature amended § 54–1j to, inter alia, add the following requirement: “If the defendant has not discussed these possible [immigration] consequences [of the conviction] with the defendant's attorney, the court shall permit the defendant to do so prior to accepting the defendant's plea.” Public Acts 2003, No. 03–81, § 1. The addition of this requirement prohibited courts from accepting a plea without first ensuring that a defendant had an opportunity to speak with his criminal counsel regarding the immigration consequences of accepting the plea. This amendment to § 54–1j is significant because it demonstrates Connecticut's early recognition that the broad expansion of the categories of offenses triggering automatic deportation, and the elimination of avenues for relief under federal immigration law trigger greater responsibility for criminal defense attorneys to ensure their clients know, when accepting a plea deal, that they may be accepting deportation. The requirement that every defendant have an opportunity to speak with his or her defense counsel regarding the immigration consequences of a plea assumes that the criminal attorney will be equipped to provide meaningful and accurate advice as to what those immigration consequences are likely to be. The statute's requirement that the judge provide the defendant with an opportunity to discuss the immigration consequences of the plea with “the defendant's attorney” confirms that the opportunity for discussion the provision mandates is between the defendant and his criminal defense counsel, guaranteed to him by Gideon v. Wainwright, supra, 372 U.S. at 335, 83 S.Ct. 792 thereby ensuring that indigent noncitizen defendants will have an opportunity to consult with an attorney regarding the immigration consequences of a plea before accepting one. The added statutory provision would make little sense if there was not already a prevailing professional norm among attorneys in Connecticut that criminal defense counsel must be sufficiently versed in the immigration consequences of criminal convictions so as to provide meaningful advice to their clients regarding the consequences of a plea. The prevailing norm, namely that criminal attorneys should accurately discuss immigration consequences with their clients, made the 2003 amendment to § 54–1j possible.
The 2003 amendment, in turn, helped solidify the standards of the Connecticut defense bar that effective representation entails advising clients of the immigration consequences of their pleas. As recognized in Padilla “[i]mmigration law can be complex, and it is a legal specialty of its own.” Padilla v. Kentucky, supra, 559 U.S. at 369, 130 S.Ct. 1473. In Padilla the United States Supreme Court also noted that the “weight of prevailing professional norms supports the view that counsel must advise her client regarding the risk of deportation.” (Internal quotation marks omitted.) Id., at 367, 130 S.Ct. 1473. The court demonstrated these professional norms through a panoply of training materials, the earliest of which was published in 1993. Id. As the trial court in the present case found, by 2005, a manual entitled “A Brief Guide to Representing Noncitizen Criminal Defendants in Connecticut,” was available to criminal defense attorneys. The manual outlined the key potential pitfalls in representing noncitizen clients and provided a guide to common Connecticut criminal statutes and the immigration consequences of a conviction under those statutes. Indeed, the habeas court found that the petitioner's counsel had participated in seminars on representing noncitizen defendants and received the manual. The manual, which was updated in 2007 and again in 2010, also explored strategies for negotiating pleas that would avoid severe and disproportionate consequences for noncitizen clients. See J. Baron, “A Brief Guide to Representing Noncitizen Criminal Defendants in Connecticut,” (2010), available at http:// ctpublic defender training. com/ materials/ immigration/ CT_ Crim_ Imm_ Guide 2010. pdf (last visited March 26, 2015).
Furthermore, in light of the statutory requirements in Connecticut, I also assert that the requirement in Padilla that counsel advise their clients of the immigration consequences of a plea is arguably not a “new rule” in Connecticut. In support of my conclusion, I further note that the New Mexico Supreme Court has recently arrived at a similar conclusion. Specifically, in Ramirez v. State, ––– N.M. ––––, 333 P.3d 240, 242 (2014), the New Mexico Supreme Court considered the defendant's 1997 guilty pleas to the possession of one ounce of marijuana, possession of drug paraphernalia, and concealing identity. In 2009, the defendant was informed that his pleas rendered him “inadmiss[ible] to the United States.” (Internal quotation marks omitted.) Id. Thereafter, he sought to vacate his prior pleas on the basis of ineffective assistance of counsel. Id. The defendant asserted that his attorney had never advised him regarding the immigration consequences of his pleas. Id. The court noted that, in 2004, it had decided State v. Paredez, 136 N.M. 533, 539, 101 P.3d 799 (2004), in which it held that a criminal defense attorney who represents a noncitizen client “must advise that client of the specific immigration consequences of pleading guilty” to pending charges. In Paredez, the New Mexico Supreme Court held that in order to establish ineffective assistance of counsel, a defendant must show that: “(1) counsel's performance was deficient, and (2) the deficient performance prejudiced the defense.” (Internal quotation marks omitted.) Id., at 538, 101 P.3d 799. “Advising a client that deportation is not a consequence when deportation is a possibility, advising the client that deportation is only a possibility when it is a virtual certainty, or failing to give the client any advice at all regarding immigration consequences all constitute evidence of deficient advice that could satisfy the first prong for ineffective assistance of counsel.” Ramirez v. State, supra, at 243. The New Mexico Supreme Court was then faced with the issue of whether to apply Paredez retroactively. The court noted that: “[p]ursuant to Teague, New Mexico does not give retroactive effect to a new criminal procedure rule.... The test determines whether a previously issued judicial opinion introduced a new rule of criminal procedure or merely expanded upon an already established rule.... A rule that is not deemed a ‘new rule’ by this test may apply retroactively.” (Citations omitted.) Id., at 244. The court then held that “[u]nlike the federal system, since 1990 New Mexico has required attorneys in all trial courts to advise their clients of the details of the plea colloquy. [The standard form used to enter a plea of guilty] was amended in 1990 to, among other things, require the judge to advise the defendant that a conviction may have an effect on the defendant's immigration status. [That form, which is] applicable to all New Mexico trial courts, also obligated the attorney to certify having explained the plea colloquy to the client in detail.” Id. The court further noted that “[a]t the time [the defendant] entered his guilty pleas, additional immigration-specific and general guidelines existed which counseled defense attorneys on how to competently advise clients regarding immigration consequences. In 1995, the National Legal Aid and Defender Association recognized that ‘[i]n order to develop an overall negotiation plan, counsel should be fully aware of, and make sure the client is fully aware of ... other consequences of conviction such as deportation....’ [National Legal Aid & Defender Association, ‘Performance Guidelines for Criminal Defense Representation,’ (1995) § 6.2]; [F. Bailey & K. Fishman, Handling Misdemeanor Cases (2d Ed.1992) § 3.7, pp. 5–6] (‘In misdemeanor cases, the possible consequences of a conviction may be so drastic that the defendant must take his or her chances on a trial.... A convicted alien may be deported.’).” Ramirez v. State, supra, at 246. Therefore, the court held that “[w]e fail to see how our holding in Paredez—seven years after [the defendant's] pleas and fourteen years after [the standard form used to enter a plea of guilty] was amended to require that the trial court assure a defendant's understanding that a guilty plea could affect the defendant's immigration status—announced a new rule.” Id., at 247.
The justification for the New Mexico Supreme Court's decision in Ramirez is remarkably similar to the background in the present case. First, the court noted that initially the New Mexico trial courts had to advise the clients that there could be deportation consequences as the result of a plea, just as § 54–1j has required since 1982. See Public Acts 1982, No. 82–177. Second, the New Mexico Supreme Court noted that, as of 1990, the attorneys were required to advise their clients of the consequences and potential deportation as the result of a plea, just as the 2003 amendment to § 54–1j provided that a trial judge in this state had to inquire if counsel had spoken with his client regarding the potential deportation ramifications of the pleas. See Public Acts 2003, No. 03–81, § 1. Third, the court noted the existence of publications which alerted the practitioner of the potential pitfalls in allowing a noncitizen to enter a plea, just as the Chief Public Defender's Office in Connecticut had a pamphlet published to alert practitioners regarding the dangers of entering pleas by noncitizens, well in advance of the petitioner's pleas. I am persuaded by the reasoning of the New Mexico Supreme Court in Ramirez.
As the foregoing demonstrates, the statutory framework of the state of Connecticut has long recognized the importance of an attorney advising his client of the immigration consequences of a plea. The fact that the state statutory framework recognized that an attorney must competently advise a defendant of the immigration consequences of a plea demonstrates that this state has considered such advice essential to ensuring the accuracy of the plea and the fundamental fairness of the process and, thus, supports the retroactive application of Padilla in this state's habeas proceedings. Certainly, as found by the habeas court, the petitioner would not have entered his plea if he was assured of deportation as a result thereof. In my view, the fundamental fairness of the plea process is unquestionably affected when the plea is based on inaccurate legal advice. Therefore, on the basis of this state's long history of affording greater protections than the federal constitution regarding the right to counsel, I would conclude that Padilla should be applied retroactively under the facts of the present case.
In assessing trial counsel's performance in advising noncitizen defendants, Padilla announced a two-tiered analytical framework, the application of which depends on whether the immigration consequences are “truly clear” under the law or whether the law is uncertain. Padilla v. Kentucky, supra, 559 U.S. at 369, 130 S.Ct. 1473. Where the law is “not succinct [or] straightforward,” counsel's duty is limited to doing “no more than advis[ing] a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.” Id. However, where the law is “truly clear, as it was in this case, the duty to give correct advice is equally clear.” Id.
As in Padilla, the petitioner here was charged with a drug trafficking offense that clearly constituted an “aggravated felony” under federal law, and would result in certain and mandatory deportation from the United States. In Padilla, the United States Supreme Court found that “[the petitioner's] counsel could have easily determined that his plea would make him eligible for deportation simply from reading the text of the statute, which addresses not some broad classification of crimes but specifically commands removal for all controlled substances convictions except for the most trivial of marijuana possession offenses.... The consequences of [the petitioner's] plea could easily be determined from reading the removal statute, his deportation was presumptively mandatory, and his counsel's advice was incorrect.” Padilla v. Kentucky, supra, 559 U.S. at 368–69, 130 S.Ct. 1473. Because the immigration consequences were “truly clear,” the Supreme Court held counsel to the higher standard requiring that counsel provide the correct advice regarding the immigration consequences. In Padilla, counsel had advised the defendant that because he had been in the country so long, he did not have to worry about immigration consequences. Id., at 359, 130 S.Ct. 1473.
As noted by the habeas court, “[a]s in Padilla, the petitioner in this case was charged with a drug trafficking crime which [the] petitioner's counsel could have ‘easily determined’ from reading the statutes would result in presumptive mandatory deportation and ineligible to seek discretionary relief. Therefore, under Padilla, [the conduct of the petitioner's counsel] must be assessed under the stricter standard as to whether he provided the petitioner ‘correct advice.’ Because the law was clear and succinct, merely informing the petitioner that there was a risk of deportation would not be sufficient under Padilla in this case.” The habeas court then concluded that “[t]he court finds that although [the petitioner's counsel at the time of the plea] had a general knowledge of immigration law, he was unaware of the specific consequences of the petitioner's plea in this case and as a result was unable to, and did not, provide clear and accurate advice. Instead, [the petitioner's counsel at the time of the plea] gave the petitioner incomplete, unspecific and incorrect advice regarding the immigration consequences of his plea. Had [the petitioner's counsel] known the specific immigration consequences of the petitioner's [plea], he would not have deemed it necessary for the petitioner to consult with an attorney versed in immigration law. In particular, the advice was incorrect because it allowed for the possibility that the petitioner could prevail at a subsequent immigration proceeding, when in fact deportation was a virtual certainty.”
I agree with the habeas court that Padilla should apply retroactively, and would conclude that the performance of the petitioner's counsel was constitutionally deficient. I would, therefore, affirm the decision of the habeas court. Accordingly, I respectfully dissent.