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ANTHONY DYOUS v. COMMISSIONER
OF MENTAL HEALTH AND
ADDICTION SERVICES
(SC 19582)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
Robinson, Js.
Argued September 14—officially released December 22, 2016*
David J. Reich, for the appellant (petitioner).
James A. Killen, senior assistant state’s attorney,
with whom, on the brief, were Peter A. McShane, state’s
attorney, and Jo Anne Sulik, supervisory assistant
state’s attorney, for the appellee (respondent).
Opinion
ROBINSON, J. The petitioner, Anthony Dyous,
appeals1 from the judgment of the habeas court denying
his petition for a writ of habeas corpus, in which he
sought immediate release from the custody of the
respondent, Commissioner of Mental Health and Addic-
tion Services. On appeal, the petitioner contends, inter
alia, that the habeas court improperly determined that:
(1) in Duperry v. Solnit, 261 Conn. 309, 803 A.2d 287
(2002), this court considered the issue of whether a
plea of not guilty by reason of mental disease or defect
must be knowing and voluntary and, further, that
Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L.
Ed. 2d 334 (1989), bars this claim for habeas relief;
and (2) his criminal trial attorney rendered effective
assistance of counsel by failing to research the law
surrounding the defense of mental disease or defect and
failing to inform the petitioner of the court’s authority to
extend his commitment beyond the maximum twenty-
five year sentence. We disagree with the petitioner’s
claims and, therefore, affirm the judgment of the
habeas court.
The record reveals the following relevant facts and
procedural history. In December, 1983, the petitioner
hijacked a bus carrying forty-seven people by stating
that he was armed with a bomb and nerve gas. Once
on the bus, the petitioner ordered the bus driver to
drive to a bank. After moving some of the passengers
from the bus into the bank, the petitioner held them
hostage. He then contacted the state police to demand
that he speak with a news reporter so that he could be
interviewed regarding a perceived threat to national
security. The petitioner then allowed the passengers to
leave the bank unharmed, and police officers entered
the bank and arrested him without further incident.
The state charged the petitioner with two counts of
kidnapping in the first degree in violation of General
Statutes (Rev. to 1983) § 53a-92 (a) (1), two counts of
threatening in the second degree in violation of General
Statutes (Rev. to 1983) § 53a-62 (a) (1), and one count
of carrying a dangerous weapon in violation of General
Statutes (Rev. to 1983) § 53-206 (a). The petitioner, rep-
resented by counsel, pleaded not guilty to all charges.
He then filed a notice of his intention to assert a defense
of mental disease or defect. The petitioner was tried
before the court on November 2, 1984, in a nonadversar-
ial proceeding during which neither party challenged
the other’s case. After the proceeding, the court ren-
dered a judgment that acquitted the petitioner of all
offenses on the basis of mental disease or defect and
committed the petitioner to the custody of the respon-
dent for a period not to exceed twenty-five years. The
respondent later transferred custody of the petitioner
to the jurisdiction of the Psychiatric Security Review
Board (board) in accordance with General Statutes
§ 17a-602.
Since his initial confinement, despite multiple unsuc-
cessful challenges, the petitioner has remained commit-
ted to the custody of the board for more than twenty-
five years.2 To challenge his extended confinement, the
petitioner filed a petition for habeas corpus. Following
the appointment of habeas counsel, the petitioner filed
a revised amended petition, through which he raised
two claims relevant to this appeal: (1) his pursuit of a
defense based on mental disease or defect was not
knowing and voluntary, in violation of his due process
rights, because he believed that he could not be con-
fined involuntarily beyond a maximum period of
twenty-five years; and (2) trial defense counsel was
ineffective by failing to research the law and advise the
petitioner that he could be confined involuntarily for
more than twenty-five years in the event he was found
not guilty by reason of mental disease or defect.3
The habeas court denied the petitioner’s petition for
a writ of habeas corpus. In its thoughtful and compre-
hensive memorandum of decision, the court concluded
that: (1) the petitioner’s claim that his plea of not guilty
by reason of mental disease or defect was not knowing
and voluntary was barred by Duperry v. Solnit, supra,
261 Conn. 309, and in any event was barred procedurally
by Teague v. Lane, supra, 489 U.S. 288; and (2) the
petitioner failed to prove that his criminal trial counsel
was constitutionally ineffective under either of the defi-
cient performance or prejudice prongs of Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984).4 The petitioner filed a petition for
certification to appeal, which the habeas court granted.
This appeal followed. Additional facts and procedural
history will be set forth as necessary.
I
We begin with the petitioner’s assertion that the
habeas court incorrectly determined that Duperry v.
Solnit, supra, 261 Conn. 309, and Teague v. Lane, supra,
489 U.S. 288, precluded his claim that his plea of not
guilty by reason of mental disease or defect was not
knowing and voluntary. This claim presents a question
of law over which our review is plenary. See, e.g., Wash-
ington v. Commissioner of Correction, 287 Conn. 792,
799–800, 950 A.2d 1220 (2008).
A
Because they set the legal stage for the petitioner’s
claim, we review Duperry v. Solnit, supra, 261 Conn.
309, and the federal district court’s decision in Duperry
v. Kirk, 563 F. Supp. 2d 370 (D. Conn. 2008), which
involve the same petitioner, Adam Duperry, and arise
from the same underlying set of facts. In Duperry v.
Solnit, supra, 311, this court considered whether the
habeas court ‘‘improperly established a new constitu-
tional rule in a collateral proceeding in contravention
of the principle announced in Teague v. Lane, [supra,
489 U.S. 288], by concluding that a criminal defendant
who pleads not guilty with the affirmative defense of
mental disease or defect must be canvassed as though
he is pleading guilty to ensure that his plea is made
knowingly and voluntarily . . . .’’5 (Footnote omitted.)
We engaged in a Teague analysis of whether the canvass
issue was procedurally barred and ultimately held,
‘‘with respect to the plea canvass, that the habeas court
improperly declared and applied a new constitutional
rule in contravention of the principle enunciated in
Teague.’’6 Duperry v. Solnit, supra, 312. Thus, we
reversed the habeas court’s judgment, which originally
had granted Duperry’s petition for a writ of habeas
corpus. Id.
Duperry subsequently filed a habeas petition in fed-
eral court to challenge his confinement. Duperry v.
Kirk, supra, 563 F. Supp. 2d 370. In Kirk, the United
States District Court for the District of Connecticut
considered whether Duperry’s claim that his plea was
not entered knowingly and voluntarily and his canvass
claim were doctrinally separate and distinct. See Id.,
382–83. The court separated the two counts in Duperry’s
federal petition and determined that each was based
on a unique ground. Id., 383–84. The court observed
that, ‘‘[t]he canvass rule helps ensure that a plea is
knowing, voluntary and intelligent, but the requirement
that plea be knowing, voluntary and intelligent repre-
sents an independent constitutional imperative, regard-
less whether the specific canvass rule is required.’’
(Emphasis in original.) Id., 384. After determining that
Duperry had raised two separate claims in his petition,
the federal court analyzed whether this court had
reached and decided the merits of both claims in Solnit,
in order to determine whether the federal court owed
deference to this court’s adjudication of Duperry’s
claims. Id.
The federal court analyzed, in great depth, footnote
7 in this court’s opinion in Solnit, which stated: ‘‘In
light of our conclusion, we do not address whether the
substance of the habeas court’s holding was proper,
i.e., whether the principle of Boykin v. Alabama, [395
U.S. 238, 242–44, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969)],
that due process requires a plea of guilty to be knowing
and voluntary, applies equally to a plea of not guilty by
reason of mental disease or defect.’’ Duperry v. Solnit,
supra, 261 Conn. 326 n.7. The federal court read this
footnote to mean that we ‘‘expressly declined to decide
that issue.’’ Duperry v. Kirk, supra, 563 F. Supp. 2d
383. Thus, it held that, with respect to Duperry’s claim
regarding the knowing and voluntary nature of his plea,
it owed no deference to this court’s prior decision and
noting that, ‘‘[b]ecause [Solnit] did not reach the merits
of the [claim regarding Duperry’s plea] the de novo
standard of review applie[d].’’ Id., 384.
In the present appeal, the petitioner claims that the
federal court’s interpretation of Duperry v. Solnit,
supra, 261 Conn. 309, in Duperry v. Kirk, supra, 563 F.
Supp. 2d 383, controls. He contends that the habeas
court improperly analyzed footnote 7 in Solnit and,
instead, advocates in support of the reasoning in Kirk
that this court failed to address the claim regarding
Duperry’s plea in Solnit. See Duperry v. Kirk, supra,
383. In response, the respondent claims that the habeas
court properly concluded that the claim regarding the
knowing and voluntary nature of Duperry’s plea is pre-
cluded by Solnit, as this court considered both the claim
regarding Duperry’s plea and his canvass claim. The
respondent further contends that the federal court’s
decision in Kirk is a misinterpretation of state law.
Regardless of whether this court considered the claim
regarding Duperry’s plea in Solnit, the petitioner’s claim
in the present case still fails. Assuming, without decid-
ing, that the federal district court correctly determined
in Kirk that this court did not consider the claim regard-
ing Duperry’s plea; see Duperry v. Solnit, supra, 261
Conn. 326 n.7; the claim regarding the knowing and
voluntary nature of the petitioner’s plea in the present
appeal nevertheless is barred by Teague v. Lane, supra,
489 U.S. 288.
B
With respect to Teague v. Lane, supra, 489 U.S. 288,
the petitioner claims that the habeas court improperly
determined that the claim regarding the knowing and
voluntary nature of his plea was barred because that
claim did not require the habeas court to establish a new
constitutional rule of criminal procedure in a collateral
proceeding. He relies on Boykin v. Alabama, supra, 395
U.S. 238, which held that guilty pleas must be knowing
and voluntary to comport with the due process clause
of the fourteenth amendment to the United States con-
stitution. Relying on Duperry v. Kirk, supra, 563 F.
Supp. 2d 385–86, the petitioner claims that the Boykin
principle extends to defenses based on mental disease
or defect. Thus, the petitioner contends that it was well
established at the time of his plea that the election
to pursue an affirmative defense of mental disease or
defect, like a decision to plead guilty, had to be knowing
and voluntary. The petitioner asserts that, because this
rule was well established at the time he entered his plea,
the habeas court would not have needed to establish a
new constitutional rule of criminal procedure to grant
relief on his claim. The petitioner asserts, rather, that
the habeas court need only apply Boykin to the facts
of the present case. Further, the petitioner claims that,
even if the relief he sought required the habeas court
to establish a new procedural rule, that rule falls within
the watershed exception set forth in Teague v. Lane,
supra, 311–13, and, as such, is not procedurally barred.7
Finally, the petitioner claims that, because this court
may consider the merits of his claim, it should hold
that his plea of not guilty by reason of mental disease
or defect was not made knowingly and voluntarily and,
thus, order his release.
In response, the respondent contends that the habeas
court, relying on Duperry v. Solnit, supra, 261 Conn.
318–26, properly determined that the petitioner’s claim
regarding the knowing and voluntary nature of his plea
was barred by Teague v. Lane, supra, 489 U.S. 288. In
support of that contention, the respondent argues that
no established precedent in existence at the time of the
petitioner’s trial required a plea of not guilty by reason
of mental disease or defect to be knowing and voluntary
as a matter of constitutional law, including United
States v. Brown, 428 F.2d 1100 (D.C. Cir. 1970), and
Miller v. Angliker, 848 F.2d 1312 (2d Cir.), cert. denied,
488 U.S. 890, 109 S. Ct. 224, 102 L. Ed. 2d 214 (1988),
on which the federal court relied in Duperry v. Kirk,
supra, 563 F. Supp. 2d 376–77. As such, the respondent
claims that affording habeas relief would require the
habeas court to create, and apply retroactively, a new
constitutional rule of criminal procedure in contraven-
tion of Teague. We agree with the respondent and con-
clude that Teague bars the claim relating to the
petitioner’s plea. We further hold that this rule does
not fall within the ‘‘watershed exception’’ to Teague.8
When considering the potential retroactive applica-
tion of a new rule of constitutional criminal procedure,
we apply the rule of Teague v. Lane, supra, 489 U.S.
288. See Thiersaint v. Commissioner of Correction,
316 Conn. 89, 103–106, 111 A.3d 829 (2015). Although
not mandated to do so under the federal constitution;
see Danforth v. Minnesota, 552 U.S. 264, 282, 128 S.
Ct. 1029, 169 L. Ed. 2d 859 (2008); we continue to follow
the Teague analysis because it provides a framework
for consistent results, and furthers the state’s interest
in fairness, due process, and finality of convictions.
Thiersaint v. Commissioner of Correction, supra, 111–
12. In Teague, the United States Supreme Court held
that new constitutional rules of criminal procedure
should not be established in or applied to collateral
proceedings, including habeas corpus proceedings.
Teague v. Lane, supra, 315–16. A rule is considered to
be ‘‘new’’ ‘‘when it breaks new ground or imposes a
new obligation on the [s]tates or the [f]ederal [g]overn-
ment. . . . To put it differently, a case announces a
new rule if the result was not dictated by precedent
existing at the time the defendant’s conviction became
final.’’ (Citations omitted; emphasis omitted.) Id., 301.
Further, ‘‘a holding is not so dictated . . . unless it
would have been apparent to all reasonable jurists.’’
(Internal quotation marks omitted.) Chaidez v. United
States, U.S. , 133 S. Ct. 1103, 1107, 185 L. Ed.
2d 149 (2013). On the other hand, ‘‘Teague also made
clear that a case does not announce a new rule, [when]
it [is] merely an application of the principle that gov-
erned a prior decision to a different set of facts.’’
(Emphasis in original; internal quotation marks omit-
ted.) Id.
This court has further explained what constitutes a
new rule for Teague purposes, observing that:
‘‘Although the court in Teague did not find it necessary
to define the meaning of a rule, it is clear that the
court was referring to a constitutional rule of criminal
procedure issued by a court that would be used as a
guiding principle in future cases. Thus, the court repeat-
edly referred to the fact that new rules are ‘announced’
or ‘promulgated’ only in specific cases . . . and that a
case does not announce a new rule if the result is
dictated by ‘precedent’ . . . or by the application of
a principle that governed a past decision.’’ (Citations
omitted.) Thiersaint v. Commissioner of Correction,
supra, 316 Conn. 122 n.18.
The first step in our Teague analysis is to determine
whether the habeas court in the present case could
have afforded the petitioner relief based on established
jurisprudence governing his claim that his plea of not
guilty by reason of mental disease or defect should be
vacated because he had not elected it knowingly and
voluntarily, or whether affording such relief would have
required the court to establish a new constitutional rule
of criminal procedure. An analysis of the precedent
existing at the time of the petitioner’s trial in 1984 makes
clear that no rule existed at that time that would have
compelled the trial court to ensure that the petitioner’s
plea was knowing and voluntary. The case in existence
at that time and most closely related to the present
case, upon which the petitioner heavily relies, is Boykin
v. Alabama, supra, 395 U.S. 242–44, in which the United
States Supreme Court held that all guilty pleas must be
made knowingly and voluntarily, as a defendant plead-
ing guilty waives important constitutional rights. The
court stated in Boykin that ‘‘[s]everal federal constitu-
tional rights are involved in a waiver that takes place
when a plea of guilty is entered in a state criminal trial.
First, is the privilege against compulsory self-incrimina-
tion guaranteed by the [f]ifth [a]mendment [to the
United States constitution] and applicable to the [s]tates
by reason of the [f]ourteenth [amendment]. . . . Sec-
ond, is the right to trial by jury. . . . Third, is the right
to confront one’s accusers.’’ (Citations omitted.) Id.,
243. For a waiver of such rights ‘‘to be valid under
the [d]ue [p]rocess [c]lause, it must be an intentional
relinquishment or abandonment of a known right or
privilege.’’ (Internal quotation marks omitted.) McCar-
thy v. United States, 394 U.S. 459, 466, 89 S. Ct. 1166,
22 L. Ed. 2d 418 (1969).
Because the petitioner adopts much of the federal
court’s reasoning in Kirk in support of his claim that
Boykin governs pleas of not guilty by reason of mental
disease or defect, we continue our Teague analysis with
a review of Kirk. As stated previously, the federal court
considered the claim regarding the knowing and volun-
tary nature of Duperry’s plea de novo, after holding
that this court did not reach the merits of that claim
in Duperry v. Solnit, supra, 261 Conn. 326 n.7. See
Duperry v. Kirk, supra, 563 F. Supp. 2d 382–83. The
federal court then held—without significant analysis—
that the claim regarding Duperry’s plea raised no new
rule of constitutional criminal procedure that would
bring it under Teague. See id., 383 (‘‘The strategic value
of characterizing both [c]ounts . . . as raising a claim
based on the failure of the trial court to canvass [Dup-
erry] is obvious. The canvass claim is subject to strong
arguments that it is barred by Teague. . . . Those dis-
advantages do not attach to a claim that [Duperry’s]
plea was not knowing, voluntary and intelligent,
because such a claim raises no new rule of law that
would bring it under Teague, and [Solnit] expressly
declined to decide that issue.’’ [Emphasis omitted.]).
In considering whether a plea of not guilty by reason
of mental disease or defect that is not knowing or volun-
tary violates a defendant’s due process rights, the fed-
eral court first discussed the Supreme Court’s holding
in Boykin v. Alabama, supra, 395 U.S. 238, that all guilty
pleas must be knowing and voluntary to comport with
due process. Duperry v. Kirk, supra, 563 F. Supp. 2d
385–86. It then noted the similarities between guilty
pleas and pleas of not guilty by reason of mental disease
or defect, citing both Miller v. Angliker, supra, 848 F.2d
1312, and United States v. Brown, supra, 428 F.2d 1100,
and ultimately concluding that Brown was ‘‘persuasive
on the issue whether the constitutional principle that
a guilty plea must be made knowingly and voluntarily
applies equally to [pleas of not guilty by reason of men-
tal disease or defect].’’ Duperry v. Kirk, supra, 386–88.
Finally, the federal court held that, ‘‘[b]ecause . . .
pleas [of not guilty by reason of mental disease or
defect] impose the consequence of involuntary confine-
ment and operate as waivers of important constitutional
trial rights in the same way that guilty pleas do, the
longstanding constitutional principles that obligate
guilty pleas to be made knowingly, intelligently, and
voluntarily, attach with equal force to [pleas of not
guilty by reason of mental disease or defect].’’ Id., 388.
Thus, the federal court granted Duperry relief, as it
determined that his plea was not knowing or voluntary,
as required by the court’s application of Boykin.
We disagree with the petitioner’s reliance on the fed-
eral court’s analysis of the claim regarding Duperry’s
plea, including its conclusion that the claim was not
barred by Teague.9 In contrast, we conclude that, in the
present case, it was not clearly established at the time
of the petitioner’s plea that Boykin applied to pleas of
not guilty by reason of mental disease or defect, such
that a trial court would have been compelled to ensure
that the petitioner’s plea was knowing and voluntary.
Specifically, the federal court’s holding that Boykin
extends to pleas of not guilty by reason of mental dis-
ease or defect relies solely on Miller v. Angliker, supra,
848 F.2d 1312, and United States v. Brown, supra, 428
F.2d 1100, neither of which are applicable to the present
case. We turn first to Miller. That case was decided
in 1988 and as such, did not exist at the time of the
petitioner’s plea in 1984 for the purposes of our Teague
analysis. Miller v. Angliker, supra, 1312.10 Further, as
a decision of the United States Court of Appeals for the
Second Circuit, Miller was not binding on Connecticut
state courts and, thus, the trial court was not bound
by that decision. Saffle v. Parks, 494 U.S. 484, 488, 110
S. Ct. 1257, 108 L. Ed. 2d 415 (1990). Even if Miller had
existed at the time of the petitioner’s plea in 1984, and
was binding authority on the trial court, on its merits,
the case nevertheless does not support the petitioner’s
claims. In Miller, the petitioner contested his detention
alleging, inter alia, that the state had withheld exculpa-
tory information in violation of Brady v. Maryland, 373
U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). See
Miller v. Angliker, supra, 1317. Although the Second
Circuit analyzed the similarities between pleading guilty
and pleading not guilty by reason of mental disease or
defect, the court’s holding that Brady is ‘‘also applicable
where the defendant has pleaded not guilty by reason
of insanity’’; id., 1320; does not establish squarely that
a trial court must ensure that a defendant’s plea of not
guilty by reason of mental disease or defect is knowing
and voluntary.
Turning next to United States v. Brown, supra, 428
F.2d 1100, as an initial matter, that case is a decision
of the United States Court of Appeals for the District
of Columbia Circuit, and as such, is not binding on
Connecticut courts. Moreover, although Brown existed
at the time of the petitioner’s plea, the merits of Brown
do not provide persuasive support for his constitutional
claim. In Brown, the petitioner challenged his confine-
ment alleging, inter alia, that the trial court failed to
canvass him pursuant to rule 11 of the Federal Rules
of Criminal Procedure. Id., 1101–1102. Relying entirely
on Federal Rules of Criminal Procedure, the District of
Columbia Circuit held that rule 11, which required
courts to canvass defendants who pleaded guilty, also
applies to a defendant who ‘‘seeks to waive trial on all
issues except insanity . . . .’’ Id., 1103. Although more
closely related to the claim regarding the petitioner’s
plea in the present case, Brown would not have com-
pelled a Connecticut trial court as a matter of constitu-
tional law to ensure that the petitioner’s plea was
knowing and voluntary, as it rested exclusively on the
Federal Rules of Criminal Procedure, rather than the
due process clause.
As we stated in Duperry v. Solnit, supra, 261 Conn.
323, ‘‘[n]either Miller nor Brown compel the result the
petitioner in the present case now seeks,’’ namely, that
we should hold that the petitioner’s claim regarding the
knowing and voluntary nature of his plea is not barred
by Teague because, for a habeas court to afford relief,
it would not need to announce a new constitutional
rule of criminal procedure but, rather, merely apply the
principle set forth in Boykin to pleas of not guilty by
reason of mental disease or defect. At the time of the
petitioner’s plea, Boykin existed, but there was no prec-
edent extending its holding to the unique area of law
surrounding the affirmative defense of mental disease
or defect.
Although merely applying an existing principle to the
facts of a case is not considered to be a ‘‘ ‘new rule’ ’’
in contravention of Teague, the act of expanding an
existing principle establishes a new constitutional rule
of criminal procedure. Thiersaint v. Commissioner of
Correction, supra, 316 Conn. 103–104. For example, in
Thiersaint, we considered whether the rule announced
in Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473,
176 L. Ed. 2d 284 (2010), namely, that counsel must
advise defendants of potential deportation and immi-
gration consequences as a result of a guilty plea, applied
retroactively on collateral review. Although the peti-
tioner argued that the rule in Padilla was merely an
extension of the principle governing ineffective assis-
tance of counsel claims under Strickland v. Washing-
ton, supra, 466 U.S. 687, we were not persuaded. We
held that Padilla addressed an unsettled question—
namely ‘‘whether attorneys are constitutionally
required to advise noncitizen criminal defendants of
the deportation consequences of a guilty plea . . . .’’
(Emphasis in original.) Thiersaint v. Commissioner
of Correction, supra, 121. Thus, because the court in
Padilla created a rule to answer a question beyond the
scope of Strickland, we held that the ‘‘rule announced
in Padilla was new, and not merely an extension of
the rule articulated in Strickland.’’ (Footnote omitted.)
Id., 121–22.
Similar to Thiersaint, in the present case, the rule
the petitioner seeks on habeas review would require
the court not merely to apply the Boykin principle to
the underlying facts, but also to expand that principle
beyond the scope of guilty pleas to include pleas of not
guilty by reason of mental disease or defect. The court
in Boykin specifically announced a rule that all guilty
pleas must be knowing and voluntary to comport with
due process. See Boykin v. Alabama, supra, 385 U.S.
242–44. It explained that this rule was necessary to
protect certain rights defendants surrender upon enter-
ing a guilty plea. Id. Although some courts have dis-
cussed the similarities between guilty pleas and pleas
of not guilty by reason of mental disease or defect;
see Miller v. Angliker, supra, 848 F.2d 1319–20; United
States v. Brown, supra, 428 F.2d 1102–1104; without
binding authority extending the holding in Boykin to
pleas of not guilty by reason of mental disease or defect,
the habeas court properly determined that it would have
had to announce a new constitutional rule of criminal
procedure. As such, the trial court in this case would
not ‘‘have felt compelled . . . to conclude that the rule
[the petitioner] seeks was required by the [c]onstitu-
tion.’’ Saffle v. Parks, supra, 494 U.S. 488. Accordingly,
we conclude that for the habeas court to afford the
petitioner relief on the claim regarding his plea, it would
have had to establish a new constitutional rule of crimi-
nal procedure that all pleas of not guilty by reason of
mental disease or defect must be knowing and voluntary
to comport with due process.
Having concluded that the habeas court would have
had to depart from prior constitutional jurisprudence
to afford relief to the petitioner, we now turn to the
petitioner’s claim that a new rule that all pleas of not
guilty by reason of mental disease or defect must be
made knowingly and voluntarily falls within the second
Teague exception, which is for watershed constitu-
tional rules of criminal procedure.11 See Casiano v.
Commissioner of Correction, 317 Conn. 52, 63, 115 A.3d
1031 (2015), cert. denied sub nom. Semple v. Casiano,
U.S. , 136 S. Ct. 1364, 194 L. Ed. 2d 376 (2016).
The petitioner claims that a rule that pleas of not guilty
by reason of mental disease or defect must be made
knowingly and voluntarily is a watershed rule of crimi-
nal procedure because it implicates the fundamental
fairness and accuracy of the criminal proceeding. The
petitioner concedes that the proposed rule does not
affect the accuracy of the determination of guilt, as an
affirmative defense of mental disease or defect requires
a defendant first to plead not guilty. He contends never-
theless that the rule would affect the accuracy of his
decision to enter a plea of not guilty, followed by an
affirmative defense of mental disease or defect, which
he claims is akin to a guilty plea. We disagree and
hold that the proposed rule does not fall within the
watershed exception to Teague.
The ‘‘watershed’’ exception to Teague v. Lane, supra,
489 U.S. 311, is reserved for those ‘‘ ‘rules of criminal
procedure’ implicating the fundamental fairness and
accuracy of the criminal proceeding.’’ Saffle v. Parks,
supra, 494 U.S. 495. Beyond fundamental fairness, the
new rule also must constitute a procedure ‘‘without
which the likelihood of an accurate conviction is seri-
ously diminished.’’ Teague v. Lane, supra, 313. Further,
because ‘‘such [a procedure] would be so central to an
accurate determination of innocence or guilt . . . it
[is] unlikely that many such components of basic due
process have yet to emerge.’’ Id. One watershed rule
frequently cited is Gideon v. Wainwright, 372 U.S. 335,
344–45, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963), which
established a rule that criminal defendants have a right
to be represented by counsel.12 Saffle v. Parks, supra,
495.
Although we recognize some similarities between
guilty pleas and pleas of not guilty by reason of mental
disease or defect, we conclude that a rule requiring the
election of the latter to be knowing and voluntary is
not ‘‘central to an accurate determination of innocence
or guilt . . . .’’ Teague v. Lane, supra, 489 U.S. 313. As
we stated Duperry v. Solnit, supra, 261 Conn. 326, ‘‘[t]he
right to counsel recognized in Gideon [which often is
cited as a watershed rule of criminal procedure] not
only helps to ensure the fundamental fairness of a crimi-
nal proceeding but also helps to protect the defendant
from an inaccurate determination of guilt.’’ In contrast,
the rule the petitioner seeks to have us adopt does not
implicate the accuracy of the determination of guilt, as
he pleaded not guilty and was acquitted of all charges
on the basis of his affirmative defense. Accordingly, the
rule that pleas of not guilty by reason of mental disease
or defect must be entered knowingly and voluntarily
does not satisfy the Teague watershed exception. Thus,
we conclude that the habeas court properly denied the
petitioner relief on his claim regarding the knowing and
voluntary nature of his plea.
II
We next address the petitioner’s claim that the habeas
court improperly determined that his defense counsel
rendered effective assistance in the underlying criminal
proceedings. Specifically, he claims that his defense
counsel was ineffective for failing to research the law
concerning the affirmative defense of mental disease
or defect and failing to inform him that he could be
confined beyond the maximum twenty-five year period
if that defense was successful. In response, the respon-
dent contends that the petitioner did not satisfy his
factual burden to demonstrate that his defense coun-
sel’s actions constituted deficient performance and
prejudiced him. We agree with the respondent.
The record reveals the following additional relevant
facts. Relevant to the petitioner’s ineffective assistance
of counsel claim, it is important to note the lack of
evidence presented in the habeas court. First, no tran-
scripts exist of the underlying criminal proceedings,
as they since have been destroyed. Second, and most
important is that the petitioner’s defense counsel, Rich-
ard A. Kelley, died prior to the habeas trial. At the
habeas trial, three witnesses testified: Attorney Ray-
mond Canning, Attorney John Watson, and the peti-
tioner.
Canning testified that he had one interaction with
the petitioner and Kelley, which took place right after
the petitioner was arrested. Kelley, who was running
late to work one morning, had called Canning and asked
him to meet with the petitioner. Once Kelley arrived,
he, Canning and the petitioner discussed the affirmative
defense of mental disease or defect. At that time, the
petitioner was advised that, although he could serve a
maximum of twenty-five years, he would likely serve
less time. Canning specifically testified that he and Kel-
ley advised the petitioner that he would not be held
beyond the maximum twenty-five years. Further, Can-
ning stated that the petitioner’s biggest concern was
how much time he would serve. He testified that, at
the time of his meeting with Kelley and the petitioner,
the board did not exist, and that before the board’s
existence, ‘‘[t]he maximum was the maximum,’’ but
once the board was created, an individual could remain
committed for a longer period of time than the initial
maximum commitment period. Finally, Canning con-
firmed that this brief meeting with Kelley and the peti-
tioner had been his only involvement in the matter.
Next, Watson, who has been a public defender since
1980, testified about what a reasonable attorney would
have done in his or her representation of the petitioner.
He noted that, at the time of the petitioner’s plea, the
revision of General Statutes § 53a-47 then in effect pro-
vided that the petitioner could be committed beyond the
maximum of twenty-five years.13 He testified, however,
that prior to the creation of the board, it was typical
for an acquittee to be confined for a period shorter than
the maximum sentence and that it would have been a
very unusual case for an acquittee to serve a longer
term. Further, Watson testified that the petitioner
should have been informed that the maximum confine-
ment would be twenty-five years, at which time it would
then be his burden to prove that he was no longer
mentally ill in order to secure his release, but that ulti-
mately, his commitment could be extended at the peti-
tion of the state. He opined that, had the petitioner been
informed of his options and pursued a different defense,
there was a reasonable probability that he would have
been confined for less than twenty-five years. Watson
further testified that he was unaware of any research
that Kelley had conducted after his initial meeting with
the petitioner, and did not know of anyone he might
have consulted.
Lastly, the petitioner testified. He stated that Kelley
never told him that if he successfully asserted the affir-
mative defense of mental disease or defect, he neverthe-
less could remain committed for more than twenty-five
years. He testified that, although he recalled discussing
his options, Kelley had told him that the worst case
scenario would be that he would be committed for
about one year and then he would be released. The
petitioner recalled meeting with Kelley at least five
times from his arrest in 1983 through his commitment
in March, 1985. Ultimately, he stated that, had he known
that he could have been held beyond twenty-five years,
he would not have pursued the same defense.
The habeas court, in its memorandum of decision,
determined that the petitioner failed to establish both
deficient performance and prejudice under the standard
of Strickland v. Washington, supra, 466 U.S. 687, and,
thus, failed to demonstrate that counsel rendered effec-
tive assistance.
‘‘A criminal defendant is constitutionally entitled to
adequate and effective assistance of counsel at all criti-
cal 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 assis-
tance of counsel. . . .
‘‘A claim of ineffective assistance of counsel is gov-
erned by the two-pronged test set forth in Strickland
. . . . Under Strickland, the petitioner has the burden
of demonstrating that (1) counsel’s representation fell
below an objective standard of reasonableness, and (2)
counsel’s deficient performance prejudiced the defense
because there was a reasonable probability that the
outcome of the proceedings would have been different
had it not been for the deficient performance. . . . For
claims of ineffective assistance of counsel arising out
of the plea process, the United States Supreme Court
has modified the second prong of the Strickland test
to require that the petitioner produce evidence that
there is a reasonable probability that, but for counsel’s
errors, [the petitioner] would not have pleaded guilty
and would have insisted on going to trial. . . . An inef-
fective assistance of counsel claim will succeed only if
both prongs [of Strickland] are satisfied.’’ (Citations
omitted; internal quotation marks omitted.) Thiersaint
v. Commissioner of Correction, supra, 316 Conn. 100–
101. Further, ‘‘[a] court can find against a petitioner,
with respect to a claim of ineffective assistance of coun-
sel, on either the performance prong or the prejudice
prong, whichever is easier.’’ (Internal quotation marks
omitted.) Michael T. v. Commissioner of Correction,
307 Conn. 84, 91, 52 A.3d 655 (2012).
‘‘The issue of whether the representation that a defen-
dant received at trial was constitutionally inadequate
is a mixed question of law and fact. . . . As such, the
question requires plenary review unfettered by the
clearly erroneous standard.’’ (Citation omitted; internal
quotation marks omitted.) Davis v. Commissioner of
Correction, 319 Conn. 548, 554, 126 A.3d 538 (2015),
cert. denied sub nom. Semple v. Davis, U.S. ,
136 S. Ct. 1676, 194 L. Ed. 2d 801 (2016). In our review
of this claim, we afford great deference to the habeas
court’s factual findings, which underlie its legal conclu-
sions. ‘‘The habeas court is afforded broad discretion
in making its factual findings, and those findings will
not be disturbed unless they are clearly erroneous. . . .
Thus, [t]his court does not retry the case or evaluate
the credibility of the witnesses. . . . Rather, we must
defer to the [trier of fact’s] assessment of the credibility
of the witnesses based on its firsthand observation of
their conduct, demeanor and attitude. . . . The habeas
judge, as the trier of facts, is the sole arbiter of the
credibility of witnesses and the weight to be given to
their testimony.’’ (Internal quotation marks omitted.)
Sanchez v. Commissioner of Correction, 314 Conn. 585,
604, 103 A.3d 954 (2014).
Turning to the performance prong of Strickland, in
its memorandum of decision, the habeas court was not
convinced that Kelley had made inaccurate representa-
tions to the petitioner regarding the maximum amount
of time for which he could be confined and, thus, con-
cluded that the petitioner failed to establish the defi-
cient performance prong of Strickland for two reasons.
First, the habeas court found that Canning’s testimony
lacked evidentiary weight and was of little probative
value. His interactions with the petitioner and Kelley
pertained only to one meeting, which was held just after
the petitioner’s arrest. As such, he could not testify as
to any other conversations between the petitioner and
Kelley, including those in closer proximity to the asser-
tion of the petitioner’s affirmative defense. Additionally,
the habeas court noted the difficulty an individual
would have in recalling details from a single meeting
that had taken place thirty years prior.
Second, the habeas court found that the petitioner’s
testimony was ‘‘uncompelling,’’ ‘‘largely self-serving and
unsupported.’’ After observing the petitioner testify, the
habeas court noted that the petitioner had difficulty
remembering when he had met with his attorneys and
with which attorneys he had met. Significantly, the
habeas court pointed out that the petitioner himself
conceded that his recollection was ‘‘iffy’’ of the initial
meeting between himself, Canning, and Kelley, during
which he claimed that he was advised that if he pursued
a defense of mental disease or defect, that he could not
be committed for more than twenty-five years. Thus,
the habeas court concluded that, on the basis of the
extremely limited evidence offered, the petitioner failed
to meet his burden on the deficient performance prong
of Strickland.
On the basis of our review of the evidence presented
at the habeas trial, giving deference to the habeas
court’s factual findings; see Sanchez v. Commissioner
of Correction, supra, 314 Conn. 604; we hold that the
habeas court properly determined that the petitioner
failed to establish that Kelley’s conduct fell below an
objectively reasonable standard because the petitioner
did not establish factually that Kelley misadvised him
regarding the fact that he could remain committed
beyond the maximum term of twenty-five years confine-
ment if he successfully pursued a defense of mental
disease or defect. Specifically, we defer to the habeas
court’s credibility determination that Canning’s testi-
mony was ‘‘of little probative value’’ and that the peti-
tioner’s testimony was ‘‘largely self-serving.’’ What
remains is a record devoid of any credible factual indica-
tion that Kelley did in fact misadvise the petitioner.
Accordingly, we conclude that the habeas court prop-
erly concluded that the petitioner failed to establish
that his counsel’s actions fell below an objectively rea-
sonable standard.
The judgment is affirmed.
In this opinion ROGERS, C. J., and ZARELLA, EVE-
LEIGH, McDONALD and ESPINOSA, Js., concurred.
* December 22, 2016, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
The habeas court granted the petitioner’s petition for certification to
appeal pursuant to General Statutes § 52-470 (b). The petitioner subsequently
appealed from the judgment of the habeas court to the Appellate Court,
and we transferred the appeal to this court pursuant to General Statutes
§ 51-199 (c) and Practice Book § 65-2.
2
The petitioner has filed numerous challenges to his extended confine-
ment. Specifically, on October 23, 2003, the petitioner filed his first applica-
tion for discharge from custody, which the court, Foley, J., denied. The
petitioner filed a second application for discharge on March 28, 2007, which
the trial court, Swords, J., denied.
In 2009, the state filed a petition for an order of continued commitment,
in response to which the petitioner filed a motion to dismiss. After a hearing
on the matter, the trial court, Swords, J., concluded that the petitioner posed
‘‘an imminent and substantial risk of harm to himself or others,’’ denied the
petitioner’s motion to dismiss, and granted the state’s order for continued
commitment. Following an unsuccessful appeal from that decision, in which
we held that the trial court lacked jurisdiction over the petitioner’s due
process claim that his plea of not guilty by reason of mental disease or
defect was not knowing, intelligent, or voluntary; State v. Dyous, 307 Conn.
299, 335, 53 A.3d 153 (2012); the petitioner filed the habeas petition underly-
ing the present appeal.
3
The petitioner also alleged that his due process rights were violated
because the trial court did not canvass him regarding his decision to plead
not guilty by reason of mental disease or defect. He subsequently withdrew
that claim at the habeas trial.
4
The habeas court also denied the respondent’s claim that the petitioner’s
claims were barred by the special defense of laches. This determination is
not at issue in this appeal.
5
The undisputed facts underlying Solnit and Kirk are strikingly similar
to the facts in the present appeal. In April, 1988, Duperry was arrested
and charged with arson and manufacturing bombs in connection with the
explosion of a pipe bomb at the Institute of Living in Hartford. Duperry v.
Solnit, supra, 261 Conn. 312–13. In December, 1988, he subsequently asserted
an affirmative defense based on mental disease or defect and elected an
unopposed, nonadversarial bench trial. Id., 313–14. After that proceeding,
the trial court found Duperry not guilty by reason of mental disease or defect
and ordered him committed to the custody of the board for a maximum term
of twenty-five years. Id., 314–15.
Nearly one decade later, Duperry filed a petition for a writ of habeas
corpus in the Superior Court, alleging, inter alia, that his due process rights
were violated, as his plea was not made knowingly, intelligently, and volunta-
rily because he did not understand the consequences of raising the affirma-
tive defense of mental disease or defect. Id., 315. The habeas court then
granted Duperry’s petition, leading the commissioner to appeal to this
court. Id.
6
We also, however, exercised our supervisory authority to conclude that,
‘‘in future cases when a defendant pleads not guilty by reason of mental
disease or defect and the state substantially agrees with the defendant’s
claim of mental disease or defect, with the result that the trial essentially
is not an adversarial proceeding, the trial court must canvass the defendant
to ensure that he or she fully understands the consequences of his or her
plea, particularly with respect to the length of time the defendant could be
confined.’’ Duperry v. Solnit, supra, 261 Conn. 312.
7
In the alternative, the petitioner contends that, if this court ‘‘finds that
the Supreme Court did in fact rule that the claim was precluded by Teague
in [Solnit] this court [should] revisit that issue and find that the principle
that a plea of [not guilty by reason of mental disease or defect] must be
knowing and voluntary should apply at the time that the petitioner entered
his plea and can be reviewed by this court.’’ Because we assume that Solnit
has no preclusive effect with respect to the petitioner’s claim regarding the
knowing and voluntary nature of his plea, for the purposes of this appeal,
we decline the petitioner’s suggestion to revisit the issue.
8
Because the claim is procedurally barred, we do not reach the merits
of the petitioner’s claim that all defenses premised on mental disease or
defect must be elected knowingly and voluntarily to comport with due
process.
9
Although we usually afford deference to the federal courts when interpre-
ting federal law; see, e.g., Szewczyk v. Dept. of Social Services, 275 Conn.
464, 475 n.11, 881 A.2d 259 (2005); we decline to do so here because the
precedent at the time of the present petitioner’s plea plainly does not support
the court’s decision in Kirk.
10
In contrast, Miller existed at the time of Duperry’s plea, which was
entered in December, 1988, for the purposes of Duperry v. Kirk, supra, 563
F. Supp. 2d 370.
11
The petitioner does not claim that this rule would fall within the first
exception to Teague, which ‘‘permits the retroactive application of a new
rule if the rule places a class of private conduct beyond the power of the
[s]tate to proscribe . . . or addresses a substantive categorical guarante[e]
accorded by the [c]onstitution, such as a rule prohibiting a certain category
of punishment for a class of defendants because of their status or offense.’’
(Citation omitted; internal quotation marks omitted.) Saffle v. Parks, supra,
494 U.S. 494. As such, our analysis is limited to the second Teague exception.
12
We rarely have addressed the issue of whether a new constitutional
rule of criminal procedure established on collateral review in contravention
of Teague, nevertheless may be applied retroactively because the rule fell
within the watershed exception. Most recently, we conducted a Teague
analysis in Casiano v. Commissioner of Correction, supra, 317 Conn. 69.
In that case, we held that the rule set forth in Miller v. Alabama, U.S.
, 132 S. Ct. 2455, 2464–65, 2468, 183 L. Ed. 2d 407 (2012), namely that
‘‘before a sentence of life without the possibility of parole may be imposed
on a juvenile homicide offender, a sentencing authority must engage in an
individualized sentencing process that accounts for the mitigating circum-
stances of youth and its attendant characteristics’’; Casiano v. Commis-
sioner of Correction, supra, 59; was a watershed rule of criminal procedure
for Teague purposes. Id., 62. Because the Miller rule pertained to sentencing,
rather than the accuracy of convictions, we observed that, ‘‘[i]n the sentenc-
ing context, where the issue is no longer one of guilt or innocence, the
second criterion asks whether the new procedure is central to an accurate
determination that the sentence imposed is a proportionate one.’’ Id., 69.
The rule established in Miller required courts to consider the mitigating
factors of youth in sentencing and, thus, would be central to ensuring that
sentences imposed on minors would be proportionate to their age and crime.
Thus, we held that the rule was a watershed rule of criminal procedure and
applied it retroactively on collateral review. Id., 71. Casiano does not inform
our decision in the present case, as it is unique to sentencing, and as such
is inapplicable to the rule proposed by the petitioner that addresses the
knowing and voluntary nature of his plea.
13
At the time of the petitioner’s plea and commitment, the board did not
exist. As such, he was committed pursuant to General Statutes (Rev. to
1985) § 53a-47. Under that statute, however, it was clear that the ‘‘state’s
attorney . . . may petition the court for an order of further confinement
on the grounds that release of the person would constitute a danger to life
or person.’’ General Statutes (Rev. to 1985) § 53a-47 (d).