***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
GENE NEWLAND v. COMMISSIONER
OF CORRECTION
(SC 19987)
Robinson, C. J., and Palmer, McDonald, D’Auria,
Mullins, Kahn and Ecker, Js.
Syllabus
Pursuant to Wainwright v. Sykes (433 U.S. 72), a petitioner raising a constitu-
tional claim for the first time in a habeas proceeding generally must
show both cause for the procedural default and prejudice for the habeas
court to reach the merits of the claim.
The petitioner, who had been convicted of sexual assault in the first degree
and risk of injury to a child, sought a writ of habeas corpus, claiming,
inter alia, a violation of his constitutional right to counsel at his criminal
trial. During certain pretrial hearings in his criminal case, the petitioner
informed the trial court that he had applied for a public defender but
had been deemed ineligible because he owned a house. The petitioner
also informed the court that he had lost one of his jobs, that his house
was in foreclosure, and that he could not afford private counsel. The
trial court stated to the petitioner that eligibility for a public defender was
determined independently of the court and suggested that the petitioner
reapply for such services. The case subsequently was scheduled for
trial, and, when the petitioner appeared for jury selection without repre-
sentation, the trial court conducted a canvass to determine whether the
petitioner was waiving his right to counsel. During that canvass, the
petitioner indicated that he had again been deemed ineligible for a public
defender because of his home ownership and that he continued to be
unsuccessful in his effort to obtain private counsel. The trial court found
that, under these circumstances, the petitioner had waived his right to
counsel, but the court made no express finding that the petitioner had
the means to hire an attorney or that he was dilatory in failing to do
so. The petitioner represented himself at trial and did not appeal from
the judgment of conviction. The petitioner subsequently filed the present
habeas petition, claiming that the trial court’s canvass was inadequate,
that the trial court’s finding of waiver was erroneous, and that the
Division of Public Defender Services had improperly determined that
he was ineligible for a public defender. In response, the respondent,
the Commissioner of Correction, contended that the petitioner’s claims
were barred by procedural default because he had failed to seek statutory
(§ 51-297 [g]) judicial review of the public defender eligibility determina-
tion or to appeal from the judgment of conviction. The habeas court
rejected the respondent’s claim of procedural default, concluding, inter
alia, that the petitioner had demonstrated good cause for failing to raise
his claims in the underlying criminal proceeding and that prejudice
resulting from the deprivation of counsel was presumed. The habeas
court reviewed the merits of the petitioner’s claims and rendered judg-
ment granting the petition, from which the respondent appealed. Held
that the habeas court correctly concluded that, for purposes of determin-
ing whether a habeas claim is barred by procedural default, prejudice
is presumed when a petitioner is completely denied the right to counsel:
in light of the importance of providing habeas relief from the unfairness
that results from the complete deprivation of counsel and the well settled
principle that prejudice is presumed in cases involving the denial of a
defendant’s constitutional right to counsel, a petitioner need not estab-
lish prejudice to overcome a claim of procedural default when he has
established a complete denial of the right to counsel; accordingly,
because the respondent did not challenge the habeas court’s finding of
good cause, and because prejudice was presumed under the circum-
stances of this case, the petitioner’s claims were not procedurally
defaulted.
Argued September 17, 2018—officially released April 30, 2019
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district of
Tolland and tried to the court, Sferrazza, J.; judgment
granting the petition, from which the respondent, on
the granting of certification, appealed. Affirmed.
Michael J. Proto, assistant state’s attorney, with
whom, on the brief, was Anne F. Mahoney, state’s attor-
ney, for the appellant (respondent).
Stephen A. Lebedevitch, assigned counsel, for the
appellee (petitioner).
Opinion
MULLINS, J. This case returns to us for a second
time. This time, the respondent, the Commissioner of
Correction, appeals from the judgment of the habeas
court granting the petition for a writ of habeas corpus
filed by the petitioner, Gene Newland.1 The principal
issue in this appeal is whether the petitioner, who was
denied counsel at his criminal trial and failed to raise
a claim related to that deprivation either at trial or on
direct appeal, is required to demonstrate actual preju-
dice to overcome the respondent’s claim of procedural
default. We conclude that, for purposes of procedural
default, after the petitioner has established good cause
for failing to raise his claim that he was completely
deprived of his right to counsel, prejudice is presumed.
Thus, we affirm the judgment of the habeas court.
The facts are fully set forth in this court’s decision
in Newland v. Commissioner of Correction, 322 Conn.
664, 667, 142 A.3d 1095 (2016). We provide the following
facts and procedural history as a brief summary. In
2007, the petitioner was charged with one count of
sexual assault in the first degree in violation of General
Statutes § 53a-70 (a) (2) and one count of risk of injury
to a child in violation of General Statutes (Rev. to 2003)
§ 53-21 (a) (2) in connection with an incident that
occurred in 2003. At his arraignment, a public defender
appeared on the petitioner’s behalf for bond pur-
poses only.
At the next pretrial hearing, the petitioner appeared
without counsel, and the assistant state’s attorney
informed the court that the petitioner had applied for
a public defender but had been deemed ineligible. The
trial court initially continued the case for six weeks
to allow the petitioner to retain private counsel. At
approximately twelve pretrial hearings over the next
sixteen months, the petitioner continued to appear as
a self-represented party. During one of these hearings,
the petitioner informed the court that the Division of
Public Defender Services (public defender’s office) had
deemed him ineligible for appointed counsel because
of his ownership of the house in which his family lived.
Nevertheless, he explained to the court that he was
having difficulty finding private counsel because he
could not afford one.
In late 2008, the petitioner informed the court that
he had lost one of his jobs and that his home was in
foreclosure. He also asked the court if someone could
assist him in preparing his case. At that point, the court
suggested that the petitioner could reapply for a public
defender if his financial situation had worsened. The
petitioner later reapplied, but the public defender’s
office again deemed him ineligible because he still
owned a home. At the following hearing, the court noti-
fied the petitioner that it would not put the case on the
jury list until at least March, 2009, in order to allow the
petitioner additional time to retain counsel.
In April, 2009, the petitioner appeared as a self-repre-
sented party to commence jury selection. The trial court
conducted a colloquy to determine if the petitioner was
waiving his right to counsel. The petitioner indicated
that he had twice been rejected by the public defender’s
office and further explained that his efforts to obtain
private counsel were unsuccessful because he could
not afford the payment that counsel demanded. After
this explanation, the court stated as follows: ‘‘So
implicit in what you’re telling me is you’re waiving your
right to have counsel represent you.’’ The petitioner
responded as follows: ‘‘At present, yes. Unfortunately,
I have no other choice.’’ Ultimately, the court found
that, under these circumstances, the petitioner had
waived his right to counsel. The trial court made no
express finding as to whether the petitioner had the
financial means to hire counsel or whether he was dila-
tory in failing to hire counsel. The court did not appoint
standby counsel. The trial proceeded with the petitioner
representing himself.
‘‘Following a jury trial, the petitioner was found guilty
of both the sexual assault and risk of injury counts.
The trial court rendered judgment in accordance with
the verdict and imposed a total effective sentence of ten
years imprisonment followed by eight years of special
parole, with conditions including registration as a sex-
ual offender. The petitioner did not appeal from the
judgment of conviction.
‘‘Thereafter, the petitioner, as a self-represented
party, filed a petition for a writ of habeas corpus, alleg-
ing that he had wrongfully been denied counsel. The
petitioner was referred to the public defender’s office,
which determined that the petitioner was indigent.
Counsel filed an amended two count petition, claiming
that the trial court had (1) inadequately canvassed the
petitioner prior to finding that he had waived his right
to counsel, and (2) incorrectly concluded that the peti-
tioner knowingly, intelligently, and voluntarily waived
his right to counsel. The amended petition alleged, inter
alia, that the claims were not procedurally defaulted
because cause and prejudice are presumed when a peti-
tioner’s right to counsel has been violated.
‘‘The respondent thereafter filed a return asserting
an affirmative defense of procedural default as to both
counts, citing the petitioner’s failure to raise these
claims before the trial court and his failure to appeal
from the judgment of conviction.’’ Newland v. Commis-
sioner of Correction, supra, 322 Conn. 671–72.
‘‘The habeas court thereafter granted the petition,
concluding that the petitioner’s . . . right to counsel
[under the sixth amendment to the United States consti-
tution] had been violated. In support of its decision,
the habeas court made the following findings. At the
time of his trial, the petitioner was making between
$300 and $350 per week. He had no available funds in
any bank accounts. He owned a residential property
that was subject to a mortgage in the amount of approxi-
mately $117,000 and that had a fair market value of
$168,000 prior to his 2007 arrest. As of July, 2008, and
during the petitioner’s criminal trial, the petitioner’s
property was subject to a foreclosure action based on
his default on the mortgage. The petitioner had easily
met the income eligibility requirements set by the Public
Defender Services Commission for a serious felony
charge and, therefore, was presumed to be eligible for
services. The public defender’s office erred in denying
the petitioner’s application on the basis of his property
ownership because the equity was limited and not
readily accessible, and because the property was sub-
ject to an ongoing foreclosure action.
‘‘With respect to the respondent’s affirmative
defense, the habeas court concluded that a claim of
public defender error was not procedurally defaulted.’’
Id., 674.
The respondent appealed to the Appellate Court,
which affirmed the judgment of the habeas court. See
Newland v. Commissioner of Correction, 151 Conn.
App. 134, 94 A.3d 676 (2014). The respondent, on the
granting of certification, then appealed to this court,
claiming, inter alia, that the issue of public defender
error was not properly before the habeas court because
the petitioner’s operative petition alleged only claims
of trial court error. This court agreed, concluding that
‘‘the habeas court ignored the pleadings and the peti-
tioner’s arguments during the habeas proceedings and
redefined the petitioner’s claims as alleging public
defender error, and the Appellate Court improperly
upheld the habeas court’s conclusions that the petition-
er’s alleged claim of public defender error was not pro-
cedurally defaulted and that the erroneous ineligibility
determination had resulted in a denial of his constitu-
tional right to the assistance of counsel.’’ Newland v.
Commissioner of Correction, supra, 322 Conn. 685–86.
Accordingly, this court concluded as follows: ‘‘[W]e
must reverse the judgment of the Appellate Court and
direct that court to remand the case to the habeas court
for it to consider whether the petitioner’s claims of trial
court error, which he alleged in his original petition,
are procedurally defaulted and, if they are not, to con-
sider the claims on their merits. In addition, if counsel
requests, the habeas court should consider allowing an
amendment to the habeas petition to include a claim
of public defender error, the issue the habeas court
decided but the petitioner never alleged.’’ Id., 686.
This brings us to the proceedings at issue in present
appeal. On remand, the petitioner amended his petition
to raise the following three claims: (1) ‘‘[t]he trial court
inadequately canvassed the petitioner concerning a
waiver of his right to counsel’’; (2) ‘‘[t]he trial court
erroneously found a knowing and intelligent waiver of
that right’’; and (3) officials from the public defender’s
office ‘‘mistakenly recommended that the petitioner
was ineligible for public defender representation.’’ The
respondent alleged procedural default as to all of those
claims on the basis of the petitioner’s failure to appeal
from his conviction and his failure to challenge the
recommendation of the public defender’s office before
the trial court.
Following a hearing, the habeas court rejected the
respondent’s special defense that the petitioner’s claims
were barred by procedural default. Specifically, the
habeas court found that the petitioner had established
good cause for the failure to raise his claims regarding
the denial of his right to counsel. The habeas court
also concluded that the prejudice resulting from that
deprivation was presumed. As to the merits of the peti-
tioner’s claims, the habeas court determined that staff
at the public defender’s office had ‘‘misadvised the court
and the petitioner that the petitioner’s application ought
to be denied.’’ The habeas court rendered judgment
granting the habeas petition, vacated the petitioner’s
conviction, and ordered a new trial. This appeal fol-
lowed. See footnote 1 of this opinion.
In the present appeal, the respondent claims that
the habeas court erred in failing to conclude that the
petitioner’s claims were not procedurally defaulted. The
respondent concedes that there was good cause for the
petitioner’s failure to raise his claims but argues that
the habeas court incorrectly determined that prejudice,
for purposes of the cause and prejudice standard, can be
presumed by the denial of counsel at trial. We disagree.
We begin with the applicable law and standard of
review. ‘‘The habeas court is afforded broad discretion
in making its factual findings, and those findings will
not be disturbed unless they are clearly erroneous. . . .
The application of the habeas court’s factual findings
to the pertinent legal standard, however, presents a
mixed question of law and fact, which is subject to
plenary review.’’ (Citations omitted; internal quotation
marks omitted.) Gaines v. Commissioner of Correc-
tion, 306 Conn. 664, 677, 51 A.3d 948 (2012).
In Wainwright v. Sykes, 433 U.S. 72, 87, 97 S. Ct.
2497, 53 L. Ed. 2d 594 (1977), ‘‘the Supreme Court held
that a petitioner who raises a constitutional claim for
the first time in a habeas proceeding must show: (1)
cause for the procedural default, i.e., for the failure to
raise the claim previously; and (2) prejudice resulting
from the alleged constitutional violation. In the absence
of such a showing, a court will not reach the merits of
the claim. We adopted this standard for state habeas
proceedings in Johnson v. Commissioner of Correc-
tion, 218 Conn. 403, 409, 589 A.2d 1214 (1991).’’ Duperry
v. Solnit, 261 Conn. 309, 331–32, 803 A.2d 287 (2002).
This court also has concluded ‘‘that the Wainwright
cause and prejudice standard should be employed to
determine the reviewability of habeas claims that were
not properly pursued on direct appeal.’’ Jackson v. Com-
missioner of Correction, 227 Conn. 124, 132, 629 A.2d
413 (1993).
In the present case, the respondent asserts that the
petitioner’s claims were barred by procedural default
because the petitioner had the opportunity but failed
to raise his claims on direct appeal and to challenge
the determination of the public defender’s office that
he was ineligible for appointed counsel before the trial
court pursuant to General Statutes § 51-297 (g)2 and
Practice Book § 37-6 (a).3 We find this argument
unavailing.
The habeas court found that the petitioner met his
burden of demonstrating good cause for his failure to
appeal the determination by the public defender’s office
that he was ineligible for appointed counsel. Specifi-
cally, the habeas court found that the petitioner had
informed the trial court that he was denied public
defender services because he owned a home. There-
after, the petitioner informed the trial court that he
had lost one of his jobs and his financial situation had
worsened.4The petitioner then asked the trial court to
assist him in preparing his defense. Despite the exis-
tence of § 51-297 (g), which authorizes defendants who
have been deemed to be ineligible for appointed counsel
by the public defender’s office to appeal the decision
to the court before which the individual’s case is pend-
ing, the trial court responded as follows: ‘‘Well, I—I
can’t appoint—I can’t tell somebody to do that for you.
You either qualify for the public defender services or
you don’t, and that’s a determination made by them
independent of the court.’’
The habeas court found that the trial judge’s response
to the petitioner’s request for assistance in securing
counsel after the public defender’s office had deter-
mined that he was not eligible for their services ‘‘to
be critical as to the existence of good cause to excuse
procedural default.’’ The habeas court reasoned that
‘‘[t]he petitioner reasonably understood these com-
ments to mean that the public defender’s office had
the sole authority, or at least the final word, on indi-
gency determinations and whether counsel would be
appointed. This matter was the petitioner’s first crimi-
nal case. One cannot reasonably expect a [self-rep-
resented] defendant with no criminal court experience
to suspect that the judge’s statement . . . meant any-
thing except that the public defender’s decision was
conclusive.’’ (Emphasis in original.) Therefore, the
habeas court concluded that ‘‘the petitioner has met his
burden of proving, by a preponderance of the evidence,
[that] he had good cause for failing to appeal under
[General Statutes] § 51-297 (g) [and] Practice Book § 37-
6 (a), based on presumed unavailability and futility.’’
We agree with the habeas court’s reasoning and its
conclusion as to the existence of good cause in the
present case. As we noted, the respondent does not
quarrel with the habeas court’s ruling on good cause
in the present appeal. Instead, the respondent asserts
that the habeas court improperly concluded that preju-
dice is presumed from the denial of the petitioner’s
right to counsel at trial.
With respect to prejudice, the habeas court ruled
that, under the second prong of Wainwright, ‘‘actual
prejudice is presumed when the petitioner’s right to
counsel is violated.’’ (Internal quotation marks omit-
ted.) In doing so, the habeas court relied on Dennis
v. Commissioner of Correction, 134 Conn. App. 520,
536–37, 39 A.3d 799 (2012), for the proposition that
‘‘[a]ny conviction obtained after wrongful denial of legal
assistance ‘mandates reversal even if no particular prej-
udice is shown and even if there is overwhelming evi-
dence of guilt.’ ’’ See Dennis v. Commissioner of
Correction, supra, 536–37 (concluding that prejudice is
presumed under procedural default when defendant
denied right to counsel at trial).
The respondent asserts that the habeas court improp-
erly failed to make the threshold determination of cause
and prejudice required under Wainwright and instead
erroneously proceeded to the substantive inquiry—
namely, the petitioner’s claim that he was improperly
denied the right to counsel. The respondent asserts
that, under Wainwright, prejudice is not presumed and,
therefore, that the habeas court should have required
the petitioner to demonstrate actual prejudice. The
respondent finally asserts that the relevant case law
only allows prejudice to be presumed from a denial of
right to counsel in the substantive inquiry. We disagree.
It is well settled that when a defendant is denied
the right to counsel, prejudice is established. In fact,
‘‘[w]hen a defendant has been denied counsel at trial, we
have refused to consider claims that this constitutional
error might have been harmless. ‘The right to have the
assistance of counsel is too fundamental and absolute
to allow courts to indulge in nice calculations as to the
amount of prejudice arising from its denial.’ Glasser v.
United States, [315 U.S. 60, 76, 62 S. Ct. 457, 86 L. Ed.
680 (1942)]. That, indeed, was the whole point of Gideon
v. Wainwright, [372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d
799 (1963)] overruling Betts v. Brady, [316 U.S. 455, 62
S. Ct. 1252, 86 L. Ed. 1595 (1942)]. Even before trial,
when counsel has not been provided at a critical stage,
‘we do not stop to determine whether prejudice
resulted.’ Hamilton v. Alabama, [368 U.S. 52, 55, 82 S.
Ct. 157, 7 L. Ed. 2d 114 (1961)]; [see] White v. Maryland,
[373 U.S. 59, 60, 83 S. Ct. 1050, 10 L. Ed. 2d 193 (1963)].’’
Chapman v. California, 386 U.S. 18, 43, 87 S. Ct. 824,
17 L. Ed. 2d 705 (1967) (Stewart, J., concurring); see
also United States v. Decoster, 624 F.2d 196, 201 (D.C.
Cir. 1976), cert. denied, 444 U.S. 944, 100 S. Ct. 302, 62
L. Ed. 2d 311 (1979).
Indeed, this court has recognized that ‘‘it is well set-
tled that if the decision by a trial court deprived a
defendant of his constitutional right to counsel of
choice, prejudice will be presumed.’’ State v. Peeler,
265 Conn. 460, 475, 828 A.2d 1216 (2003), cert. denied,
541 U.S. 1029, 124 S. Ct. 2094, 158 L. Ed. 2d 710 (2004).
Furthermore, this court has explained that ‘‘a per se
rule of automatic reversal more properly vindicates the
denial of the defendant’s fundamental constitutional
right to assistance of counsel guaranteed by the sixth
amendment.’’ State v. Mebane, 204 Conn. 585, 595, 529
A.2d 680 (1987), cert. denied, 484 U.S. 1046, 108 S. Ct.
784, 98 L. Ed. 2d 870 (1988); see also State v. Frye, 224
Conn. 253, 262, 617 A.2d 1382 (1992) (‘‘[t]he right to
counsel is so basic that its violation mandates reversal
even if no particular prejudice is shown and even if there
is overwhelming evidence of guilt’’ [internal quotation
marks omitted]).
Notwithstanding the foregoing law, the respondent
asserts that the cases explaining the confines of the
procedural default rule require that a petitioner demon-
strate both cause and prejudice. Specifically, the respon-
dent cites to Engle v. Isaac, 456 U.S. 107, 129, 102 S.
Ct. 1558, 71 L. Ed. 2d 783 (1982), for its conclusion that
‘‘any prisoner bringing a constitutional claim to
the federal courthouse after a state procedural default
must demonstrate cause and actual prejudice before
obtaining relief.’’ In explaining the rationale for requir-
ing petitioners to establish both cause and prejudice,
the United States Supreme Court explained that ‘‘writs
of habeas corpus frequently cost society the right to
punish admitted offenders. Passage of time, erosion of
memory, and dispersion of witnesses may render retrial
difficult, even impossible. While a habeas writ may, in
theory, entitle the defendant only to retrial, in practice
it may reward the accused with complete freedom from
prosecution.’’ Id., 127–28. The United States Supreme
Court further explained that ‘‘these costs are particu-
larly high when a trial default has barred a prisoner
from obtaining adjudication of his constitutional claim
in the state courts. In that situation, the trial court has
had no opportunity to correct the defect and avoid
problematic retrials. . . . The state appellate courts
have not had a chance to mend their own fences and
avoid federal intrusion. Issuance of a habeas writ,
finally, exacts an extra charge by undercutting the
[s]tate’s ability to enforce its procedural rules. These
considerations supported our . . . ruling [in Wain-
wright] that, when a procedural default bars state litiga-
tion of a constitutional claim, a state prisoner may not
obtain federal habeas relief absent a showing of cause
and actual prejudice.’’ (Footnote omitted.) Id., 128–29.
We agree with the respondent that the cause and
prejudice standard is designed to limit the ability of
petitioners to bring claims in a habeas action that they
could have addressed in the trial court or on direct
appeal because of the societal costs of habeas relief.
Nevertheless, our review of the case law surrounding
the adoption of the cause and prejudice standard
reveals that the United States Supreme Court did not
intend to limit the relief afforded to a petitioner who
was completely denied his right to counsel. Indeed, the
Supreme Court has explained that prejudice is pre-
sumed when counsel is completely denied. Strickland
v. Washington, 466 U.S. 668, 692, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984) (‘‘[a]ctual or constructive denial of
the assistance of counsel altogether is legally presumed
to result in prejudice’’); United States v. Cronic, 466
U.S. 648, 659, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984)
(prejudice is presumed when counsel is completely
denied); see also Shayesteh v. South Salt Lake, 217 F.3d
1281, 1284 (10th Cir. 2000) (‘‘where there has been a
complete denial of the constitutional right to counsel
. . . prejudice is presumed’’), cert. denied, 531 U.S.
1171, 121 S. Ct. 1139, 148 L. Ed. 2d 1003 (2001).
In adopting the cause and prejudice standard in
Wainwright, the United States Supreme Court
explained that the cause and prejudice standard was
to be applied in a manner that would not operate to
prevent habeas relief for the claim ‘‘of a defendant who
in the absence of such an adjudication will be the victim
of a miscarriage of justice.’’ Wainwright v. Sykes, supra,
433 U.S. 91. Furthermore, although this court and the
United States Supreme Court have continued to follow
the cause and prejudice standard and have, as the
respondent asserts, continually reaffirmed that each of
those components must be established ‘‘in the conjunc-
tive,’’ courts have crafted that standard in a manner
that does not interfere with ‘‘the exercise of the habeas
court’s equitable discretion with respect to procedurally
defaulted claims . . . .’’ (Internal quotation marks
omitted.) Murray v. Carrier, 477 U.S. 478, 496, 106 S.
Ct. 2639, 91 L. Ed. 2d 397 (1986). Courts have explained
that the cause and prejudice standard ‘‘will not prevent
federal habeas courts from ensuring the ‘fundamental
fairness [that] is the central concern of the writ of
habeas corpus.’ ’’ Id.
Stated succinctly, habeas relief is designed to address
situations in which a miscarriage of justice would exist
without such relief, and the cause and prejudice stan-
dard is not meant to thwart that interest. Rather, the
cause and prejudice standard is meant to balance the
need for habeas relief with the societal costs of habeas
relief. It is axiomatic that ‘‘the right to counsel is the
foundation for our adversary system’’ and that its denial
can never be harmless. Martinez v. Ryan, 566 U.S. 1,
12, 132 S. Ct. 1309, 182 L. Ed. 2d 272 (2012); see also
Scott v. Illinois, 440 U.S. 367, 99 S. Ct. 115, 859 L. Ed.
2d 383 (1979) (‘‘representation by counsel in a criminal
proceeding is fundamental and essential to a fair trial’’
[internal quotation marks omitted]). Therefore, the pro-
tections afforded by the procedural default rule must
be construed in light of the fundamental role of the right
to counsel in ensuring a fair trial and the importance of
providing habeas relief from the unfairness that results
from the complete deprivation of counsel.5 In light of
these principles, we cannot conclude that a petitioner
must establish prejudice to overcome a claim of proce-
dural default when there has been a complete denial
of counsel. As Justice McDonald recognized in his dis-
sent in Newland v. Commissioner of Correction, supra,
322 Conn. 701–702, in arriving at this conclusion, we
are joined by several other courts that have addressed
this question. See Robinson v. Ignacio, 360 F.3d 1044,
1054–55 (9th Cir. 2004); Shayesteh v. South Salt Lake,
supra, 217 F.3d 1284; Guzman v. United States, Docket
No. C.A. 98-12086 (MLW), 2004 WL 3710110, *8–9 (D.
Mass. June 4, 2004); Coleman v. Ignacio, 164 F.R.D.
679, 684 (D. Nev. 1996).
If we were to adopt the respondent’s application of
the cause and prejudice standard and require the peti-
tioner to establish actual prejudice from the denial of
the right to counsel in order to avoid procedural default,
we would ignore well established case law recognizing
that ‘‘[t]he right to have the assistance of counsel is too
fundamental and absolute to allow courts to indulge in
nice calculations as to the amount of prejudice arising
from its denial.’’ Glasser v. United States, supra, 315
U.S. 76.
Accordingly, we conclude that the habeas court prop-
erly determined that, for purposes of determining
whether a habeas claim is barred by procedural default,
prejudice is presumed when the petitioner is completely
denied his right to counsel.
The judgment is affirmed.
In this opinion the other justices concurred.
1
We note that the habeas court granted the respondent’s petition for
certification to appeal. The respondent thereafter appealed to the Appellate
Court, and we then transferred the appeal to this court pursuant to General
Statutes § 51-199 (c) and Practice Book § 65-2.
2
General Statutes § 51-297 (g) provides: ‘‘If the Chief Public Defender or
anyone serving under the Chief Public Defender determines that an individ-
ual is not eligible to receive the services of a public defender under this
chapter, the individual may appeal the decision to the court before which
the individual’s case is pending.’’
3
Practice Book § 37-6 (a) provides in relevant part: ‘‘If the public defender
or his or her office determines that a defendant is not eligible to receive
the services of a public defender, the defendant may appeal the public
defender’s decision to the judicial authority in accordance with General
Statutes § 51-297 (g). . . .’’
4
Although the trial court did suggest that the petitioner reapply for public
defender services, his second application was again denied because he
owned a home.
5
We note that our decision today is based on the petitioner’s claim that
he suffered a complete denial of counsel at his criminal trial. The issue of
what a petitioner alleging ineffective assistance of counsel must demonstrate
to satisfy the prejudice prong of the procedural default test is not before
us. Therefore we express no opinion on that issue.