SUPREME COURT OF THE STATE OF CONNECTICUT S.C JUDICIAL DISTRICT OF TOLLAND. EMMANUEL THIERSAINT v. COMMISSIONER OF CORRECTION

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1 SUPREME COURT OF THE STATE OF CONNECTICUT S.C JUDICIAL DISTRICT OF TOLLAND EMMANUEL THIERSAINT v. COMMISSIONER OF CORRECTION BRIEF OF AMICI CURIAE LEGAL ACADEMICS Christopher N. Lasch, Juris # East Evans Avenue, Suite 335 Denver, CO Telephone: (203) Facsimile: (303) chris.lasch@gmail.com December 6, 2013

2 TABLE OF CONTENTS TABLE OF CONTENTS... i TABLE OF AUTHORITIES... ii IDENTITY AND INTEREST OF THE AMICI CURIAE... iii ISSUE ADDRESSED BY THIS BRIEF... v ARGUMENT... 1 I. APPLYING THE TEAGUE ANTI-REDRESS RULE TO A CLAIM OF TRIAL COUNSEL INEFFECTIVENESS PROPERLY BROUGHT FOR THE FIRST TIME IN STATE HABEAS PROCEEDINGS RUNS CONTRARY TO THE PRINCIPLES UNDERLYING THE FEDERAL REDRESSABILITY REGIME A. The federal redressability rules are premised on state courts applying and developing federal constitutional law B. The federal redressability rules require unrestricted review of a federal constitutional claim when it is first raised in state court proceedings II. APPLYING THE TEAGUE ANTI-REDRESS RULE IS NOT NECESSARY TO SERVE FINALITY INTERESTS WHEN A CLAIM OF TRIAL COUNSEL INEFFECTIVENESS IS PROPERLY BROUGHT FOR THE FIRST TIME IN STATE HABEAS PROCEEDINGS CONCLUSION... 9 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE i

3 CASES TABLE OF AUTHORITIES Chaidez v. United States, 568 U.S., 133 S. Ct. 1103, 185 L. Ed. 2d 149 (2013)... 9, 10 Crawford v. Comm'r of Correction, 294 Conn. 165, 202, 982 A.2d 620, 642 (2009)... 5 State v. Crespo, 246 Conn. 665, 687, 718 A.2d 925, 937 (1998)... 6 Danforth v. Minnesota, 552 U.S. 264, 128 S. Ct. 1029, 169 L. Ed. 2d 859 (2008)... passim Desist v. United States, 394 U.S. 244, 256 et seq., 89 S. Ct. 1030, 1038 et seq., 22 L. Ed. 2d 248 (1969) (Harlan, J., dissenting)... 1, 2, 3 Griffith v. Kentucky, 479 U.S. 314, 107 S. Ct. 708, 93 L. Ed. 2d 649 (1987)... passim Johnson v. Comm'r of Correction, 218 Conn. 403, 419, 589 A.2d 1214, 1222 on reconsideration sub nom. Jackson v. Comm'r of Correction, 219 Conn. 215, 592 A.2d 910 (1991) and on reconsideration sub nom. Watley v. Comm'r of Correction, 219 Conn. 231, 592 A.2d 911 (1991)... 5, 8, 10 Johnson v. Comm'r of Correction, 285 Conn. 556, , 941 A.2d 248, (2008) Mackey v. United States, 401 U.S. 667, 675 et seq., 91 S. Ct. 1171, 28 L. Ed. 2d 404 (1971) (opinion of Harlan, J., concurring in judgments in part and dissenting in part)... 1, 2, 3, 4 Martinez v. Ryan, 566 U.S., 132 S. Ct. 1309, 1317, 182 L. Ed. 2d 272 (2012)... 5 Massaro v. United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 1691, 155 L.Ed.2d 714 (2003)... 6 Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010)... 6, 9 Robb v. Connolly, 111 U.S. 624, 637, 4 S. Ct. 544, 551, 28 L. Ed. 542 (1884)... 7 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)... 8, 9, 10 Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989)... passim Thorpe v. Comm'r of Correction, 73 Conn. App. 773, , 809 A.2d 1126, 1130 (2002) Valeriano v. Bronson, 209 Conn. 75, 85, 546 A.2d 1380, 1385 (1988) OTHER SOURCES Paul Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv. L. Rev. 441 (1963)... 3, 4, 6 Henry Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142, (1970)... 3, 4, 6 ii

4 IDENTITY AND INTEREST OF THE AMICI CURIAE Amici curiae are legal scholars who teach, research and write about criminal law, criminal procedure, immigration law, constitutional law, and access to justice. 1 (See below for a complete list of amici). As teachers, practitioners, and scholars, the proposed amici have an interest in the proper resolution of the issue addressed by this brief. This is particularly so because the proposed amici include clinical faculty who, in addition to lecturing and researching, are also actively engaged in supervising Connecticut students in the practice of law in Connecticut courts. Amici curiae are: 2 Kevin M. Barry Professor of Law Quinnipiac University School of Law Loftus Becker Professor of Law University of Connecticut School of Law Carolyn Wilkes Kaas Associate Professor of Law Director of Clinical Programs Quinnipiac University School of Law Linda R. Meyer Professor of Law Quinnipiac University School of Law Sarah F. Russell Associate Professor of Law Quinnipiac University School of Law 1 No counsel for a party wrote this brief in whole or in part or contributed to the cost of the preparation or submission of the brief. No persons, other than the amici curiae, their members or counsel, made any such monetary contribution. See Practice Book Institutional affiliations are listed for identification purposes only. iii

5 Julia Simon-Kerr Associate Professor of Law Ralph and Doris Hansmann Scholar University of Connecticut School of Law iv

6 ISSUE ADDRESSED BY THIS BRIEF What rules should Connecticut habeas courts apply in determining whether redress will be available for federal constitutional violations (and specifically violations of the constitutional right recognized in Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), to be adequately advised by counsel as to the immigration consequences of a criminal conviction) occurring in Connecticut criminal cases? v

7 ARGUMENT 3 In Danforth v. Minnesota, 4 the Supreme Court explained that because the Teague 5 anti-redress 6 rule was fashioned to address comity and finality concerns specific to federal habeas review of state-court criminal judgments, Teague does not bind state habeas courts. This Court must now determine, under state law, whether redress should be available to a litigant who properly raises for the first time in state habeas proceedings his claim of constitutionally ineffective assistance of trial counsel. The federal rules are not binding, 7 but the principles underlying them compel an affirmative answer. I. APPLYING THE TEAGUE ANTI-REDRESS RULE TO A CLAIM OF TRIAL COUNSEL INEFFECTIVENESS PROPERLY BROUGHT FOR THE FIRST TIME IN STATE HABEAS PROCEEDINGS RUNS CONTRARY TO THE PRINCIPLES UNDERLYING THE FEDERAL REDRESSABILITY REGIME. A. The federal redressability rules are premised on state courts applying and developing federal constitutional law. Justice Harlan outlined 8 what was later adopted as the federal redressability regime: A rule of full redress (the Griffith 9 rule ) for cases on direct review, and a general rule of no redress (the Teague rule ) for federal habeas corpus review of state-court 3 No counsel for a party wrote this brief in whole or in part or contributed to the cost of the preparation or submission of the brief. No persons, other than the amici curiae, their members or counsel, made any such monetary contribution. See Practice Book U.S. 264, 128 S. Ct. 1029, 169 L. Ed. 2d 859 (2008). 5 Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989). 6 The Court explained that redressability, rather than retroactivity, is the appropriate term because the use of retroactivity terminology falsely impl[ies] that the right at issue was not in existence prior to the date the new rule was announced. Danforth, 552 U.S. 271 & n.5, 128 S. Ct The question Teague addresses is whether a violation of the new rule prior to its announcement is subject to redress in a particular proceeding. Id. 7 See Danforth, supra. 8 Desist v. United States, 394 U.S. 244, 256 et seq., 89 S. Ct. 1030, 1038 et seq., 22 L. Ed. 2d 248 (1969) (Harlan, J., dissenting); Mackey v. United States, 401 U.S. 667, 675 et seq., 91 S. Ct. 1171, 28 L. Ed. 2d 404 (1971) (opinion of Harlan, J., concurring in judgments in part and dissenting in part). 9 Griffith v. Kentucky, 479 U.S. 314, 107 S. Ct. 708, 93 L. Ed. 2d 649 (1987).

8 judgments. 10 Together, these two rules establish a regime that not only accords state courts the opportunity and responsibility for developing federal constitutional law, but also restrains federal courts from undermining the constitutional decisionmaking of state courts by imposing later-developed constitutional rules where the state courts have already rendered a constitutional decision subject to review by the United States Supreme Court. Griffith s rule of redress was grounded in Justice Harlan s conclusion that failure to apply a newly declared constitutional rule to criminal cases pending on direct review violates basic norms of constitutional adjudication. 11 Justice Harlan felt allowing new rules to justify redress only prospectively would eliminate the obligation of lower courts to decide claims and eviscerate their responsibility for developing or interpreting the Constitution, effectively freezing constitutional doctrine and rendering the lower courts automatons. 12 Also, he believed affording less than full redress on direct review would produce intolerable inequalities. To give redress to one litigant and deny it to others on direct review would treat similarly situated defendants differently without a principled reason for doing so. 13 The Teague anti-redress rule for federal habeas review of state-court judgments, on the other hand, was grounded in comity and finality. 14 The premise upon which both interests were implicated was that a federal habeas court reviews claims that have already been adjudicated in state court and exposed to Supreme Court review. Justice Harlan recognized that relitigation of constitutional issues in federal habeas proceedings might 10 See Danforth, 552 U.S , 89 S. Ct Griffith, 479 U.S. 322, 107 S. Ct Mackey, 401 U.S. 680, 91 S. Ct Griffith, 479 U.S. 323, 107 S. Ct. 713 (citing Desist, 394 U.S , 89 S. Ct (Harlan, J., dissenting)). 14 Danforth, 552 U.S. 279, 128 S. Ct

9 serve a deterrence function, 15 forcing trial and appellate courts in both the federal and state system to toe the constitutional mark. 16 But this function might be adequately served (and tempered by comity), Justice Harlan believed, by limiting federal habeas courts to applying constitutional rules in effect at the time of the state-court adjudication. 17 Teague similarly counted among the costs imposed upon the State[s] by retroactive application of new rules of constitutional law on habeas corpus the understandabl[e] frustra[tion] of state courts that faithfully apply existing constitutional law only to have a federal court discover, during a [habeas] proceeding, new constitutional commands. 18 Comity was thus deployed in Teague to protect the ability of state courts to adjudicate federal constitutional issues and to incentivize them to do so faithfully. The finality interest served by Teague was similarly premised on an initial adjudication of constitutional claims in state court. Justice Harlan relied on articles by Harvard law professor Paul Bator and by Second Circuit Judge Henry Friendly discussing the finality interests implicated by relitigating claims on collateral review. 19 Importantly, neither Bator nor Friendly embraced finality to curtail collateral review without qualification. Both recognized the existence of general categories where the first go-around should not count where constitutional claims were not in fact subject to litigation on direct 15 Desist, 394 U.S , 89 S. Ct (Harlan, J., dissenting). 16 Mackey, 401 U.S. 687, 91 S. Ct Id. 18 Teague, 489 U.S. 310, 109 S. Ct (citations omitted). 19 Mackey, 401 U.S. 690, 91 S. Ct (citing Paul Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv. L. Rev. 441 (1963) and Henry Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142, (1970)). These sources were in turn relied upon in Teague. 489 U.S. at 309, 109 S. Ct (citing Bator, supra, and Friendly, supra). 3

10 review. 20 And both suggested that the absence of a forum for claims which could not fairly be raised at all until after final judgment could amount to a due process violation. 21 Bator explicitly extolled the capacity of state-court judges to determine federal constitutional issues. [D]eciding federal questions is an intrinsic part of the business of state judges, Bator wrote, 22 and for him permitting relitigation of constitutional claims anew on federal habeas would squander all of the intellectual, moral, and political resources involved in the legal system including any sense of responsibility among state judges. 23 Whether cast in terms of comity or finality, the premise of Teague is the availability of a state forum for adjudicating in the first instance the merits of constitutional issues presented, subject to review by the United States Supreme Court. Both Justice Harlan and Bator justified limiting federal habeas review by emphasizing that such review always occurs after a round of litigation in which the state courts have had the opportunity to apply federal constitutional law, subject to review by the United States Supreme Court. 24 Teague s deference to state courts is premised on state courts faithful discharge of this obligation, and upon the existence of a full round of unrestricted review, as the Griffith rule establishes, in which constitutional innovation is permitted and even required. 20 Bator, supra, 76 Harv. L. Rev. at 454; Friendly, supra, 38 U. Chi. L. Rev. at 152 (explicitly excepting from finality s ambit on collateral attack constitutional claims, the factual bases of which are dehors the record and their effect on the judgment was not subject to consideration and review on appeal ). 21 Bator, supra, 76 Harv. L. Rev. at ; Friendly, supra, 38 U. Chi. L. Rev. at Bator, supra, 76 Harv. L. Rev. at Id. at 451; see also id. at 506 ( The crucial issue is the possible damage done to the inner sense of responsibility, to the pride and conscientiousness, of a state judge in doing what is, after all, under the constitutional scheme a part of his business: the decision of federal questions properly raised in state litigation. ). 24 Mackey, 401 U.S , 91 S. Ct (Harlan, J., dissenting); see also, e.g. Bator, supra, 512 (referring to federal questions already adjudicated by state courts and subject to Supreme Court review ). 4

11 B. The federal redressability rules require unrestricted review of a federal constitutional claim when it is first raised in state court proceedings. The logic of Griffith (holding that federal constitutional claims must be afforded an unencumbered round of review during which constitutional innovation can occur), and not the logic of Teague (holding that once such an unencumbered review has taken place, innovation in federal habeas corpus proceedings is inconsistent with comity and finality), pertains here. To be sure, state habeas review shares characteristics of both federal habeas proceedings (governed by Teague) and direct review proceedings (governed by Griffith). On the one hand state habeas proceedings, like federal habeas proceedings, are a form of collateral review. 25 To some degree, then, the finality interests at stake in federal habeas corpus proceedings are present in state habeas proceedings and may justify the borrowing of finality-serving federal habeas corpus doctrines. 26 But on the other hand, state habeas corpus proceedings can be (and are here) the equivalent of direct review proceedings a first forum in which to litigate constitutional claims (and to develop facts pertaining to those claims). Ineffective assistance of trial counsel is one such claim. 27 Because a claim of trial counsel ineffectiveness typically relies on facts outside the record, this Court has repeatedly indicated that a habeas proceeding is 25 Crawford v. Comm'r of Correction, 294 Conn. 165, 202, 982 A.2d 620, 642 (2009). 26 See, e.g., Johnson v. Comm'r of Correction, 218 Conn. 403, 419, 589 A.2d 1214, 1222 on reconsideration sub nom. Jackson v. Comm'r of Correction, 219 Conn. 215, 592 A.2d 910 (1991) and on reconsideration sub nom. Watley v. Comm'r of Correction, 219 Conn. 231, 592 A.2d 911 (1991) (adopting federal standard for excusing procedural defaults). 27 See Martinez v. Ryan, 566 U.S., 132 S. Ct. 1309, 1317, 182 L. Ed. 2d 272 (2012) ( Where, as here, the initial-review collateral proceeding is the first designated proceeding for a prisoner to raise a claim of ineffective assistance at trial, the collateral proceeding is in many ways the equivalent of a prisoner's direct appeal as to the ineffective-assistance claim. ) (emphasis added). 5

12 the appropriate forum for first raising such a claim. 28 An ineffectiveness claim properly raised for the first time in state habeas proceedings ought to be governed by the Griffith rule. Both Professor Bator and Judge Friendly, whose views on finality were ultimately enshrined in Teague, excluded such claims from their broader view that finality should generally foreclose a postconviction attack on a criminal judgment. 29 Where a litigant properly brings a claim (such as Mr. Thiersaint s Padilla claim) for the first time in state habeas proceedings, applying the Teague anti-redress rule, designed to address comity and finality concerns present when claims are relitigated on federal habeas review, has serious adverse consequences. The Teague rule takes as a given the existence of a state-court forum for adjudicating a constitutional claim, and strives to incentivize state courts to faithfully adjudicate constitutional claims by limiting federal review. 30 Applied in this context, the Teague rule deprives litigants of a forum for their claims and denies Connecticut courts a role in the ongoing dialogue over the proper scope and substance of rights guaranteed by the United States Constitution. Upon the state courts, equally with the courts of the Union, rests the obligation to guard, enforce, and protect every right granted or secured by the constitution of the United 28 State v. Crespo, 246 Conn. 665, 687, 718 A.2d 925, 937 (1998) (and authorities cited therein); see also Massaro v. United States, 538 U.S. 500, 504, 123 S. Ct. 1690, 1691, 155 L. Ed. 2d 714 (2003) (noting that rules should induce litigants to present their contentions to the right tribunal at the right time and penalizing litigants for not raising ineffectiveness on direct appeal would have the opposite effect, creating the risk that defendants would feel compelled to raise the issue before there has been an opportunity fully to develop the factual predicate for the claim ). 29 See Friendly, supra, 38 U. Chi. L. Rev. at 152 (allowing on postconviction review claims relying on facts that are dehors the record and their effect on the judgment was not subject to consideration and review on appeal ); Bator, supra, 76 Harv. L. Rev. at 454 (allowing claims of denial of counsel); see also id. at 458 (allowing claims involving coerced guilty pleas); Friendly, supra, 38 U. Chi. L. Rev. at 152 (allowing guilty plea procured by improper means). 30 See Section I.A, supra. 6

13 States for the judges of the state courts are required to take an oath to support that constitution, and they are bound by it 31 Teague and Griffith were meant to ensure this principle. 32 Applying Teague s anti-redress rule here, to a claim properly raised for the first time in state habeas proceedings, undermines it. II. APPLYING THE TEAGUE ANTI-REDRESS RULE IS NOT NECESSARY TO SERVE FINALITY INTERESTS WHEN A CLAIM OF TRIAL COUNSEL INEFFECTIVENESS IS PROPERLY BROUGHT FOR THE FIRST TIME IN STATE HABEAS PROCEEDINGS. Applying the Teague rule in Connecticut habeas proceedings is unnecessary to serve finality, 33 particularly when a habeas court addresses claims of ineffective assistance of counsel. Connecticut law governing when federal constitutional claims may be brought in criminal cases, and by what procedural mechanism, is coherent, comprehensive, and calibrated to serve the State interest in finality. 34 This Court already weighed the finality interest at stake and yet determined that ineffective assistance of counsel claims are properly raised for the first time in state habeas proceedings. Indeed, finality does not require ineffective assistance of counsel to be raised during direct review because the substantive test for ineffective assistance has built-in safeguards to protect the finality of criminal judgments. Both the deficient performance and prejudice components of the legal standard safeguard the finality interest Connecticut has in criminal judgments. A new rule analysis under Teague is unnecessary given these protections. 31 Robb v. Connolly, 111 U.S. 624, 637, 4 S. Ct. 544, 551, 28 L. Ed. 542 (1884). 32 See Section I.A, supra. 33 Comity need not need concern the Court here. Danforth, 552 U.S. 279, 128 S. Ct (noting comity considerations are unique to federal habeas review of state convictions. ). 34 Claims already litigated on direct review are subject to res judicata and may not be relitigated. See Thorpe v. Comm'r of Correction, 73 Conn. App. 773, , 809 A.2d 1126, 1130 (2002). Claims that should have been litigated on direct review are subject to the procedural default rule. See Johnson, supra, 218 Conn. 403, 589 A.2d

14 Strickland v. Washington 35 established (before Teague was decided) a two-part test for ineffective assistance of counsel. 36 Both prongs of the test protect finality. In evaluating counsel s performance, Strickland eschews a post hoc judgment: A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. 37 Reviewing courts are thus explicitly instructed not to consider evolving standards of performance by this requirement, ineffective assistance of counsel claims are already frozen in amber. The Strickland Court s discussion announcing the standard for assessing deficient performance indicates the Court was motivated by its concern for the finality of judgments: The availability of intrusive post-trial inquiry into attorney performance or of detailed guidelines for its evaluation would encourage the proliferation of ineffectiveness challenges. Criminal trials resolved unfavorably to the defendant would increasingly come to be followed by a second trial, this one of counsel's unsuccessful defense. 38 Teague s anti-redress rule is not required to serve finality concerns where, as here, the legal standard by which claims are tested is pegged to the time of the alleged error. The Strickland test also includes a prejudice component explicitly addressing finality. The Court rejected the idea that counsel s deficient performance should merit automatic reversal, with no prejudice requirement, and instead sought to fashion a test that would U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). 36 A defendant must prove not only that trial counsel s performance was deficient, but must establish a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 694, 104 S. Ct. at Id. at 689, 104 S. Ct. at 2065 (emphasis added); see also id. at 690, 104 S. Ct. at 2066 (instructing postconviction courts to judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct and measured against prevailing professional norms ) (emphases added). 38 Id. at 690, 104 S. Ct. at

15 identify errors of counsel sufficiently serious to warrant setting aside the outcome of the proceeding. 39 The Court also rejected a prejudice test that would require a defendant to demonstrate prejudice by a preponderance of the evidence. The Court noted that such a test would reflect[] the profound importance of finality in criminal proceedings, but decided that [a]n ineffective assistance claim asserts the absence of one of the crucial assurances that the result of the proceeding is reliable, so finality concerns are somewhat weaker and the appropriate standard of prejudice should be somewhat lower. 40 Thus, in calibrating the prejudice prong of the Strickland test, the Court explicitly considered finality. Superimposing a second finality-serving doctrine, the Teague antiredress rule, on ineffective assistance of counsel claims properly brought for the first time in state habeas proceedings, skews the fine balance struck by the Court in Strickland. CONCLUSION The State urges this Court to apply Chaidez v. United States 41 to Mr. Thiersaint s case, 42 even arguing that Chaidez dictates the result. 43 This Court should not be troubled by Chaidez s conclusion that Padilla announced a new rule that should not be applied retroactively. 44 The Supreme Court s decisions under Teague do not bind this Court, 45 and to the extent this Court follows Teague, it does so as a matter of state law and can modify the Teague framework accordingly. 46 Also, the arguments raised here (that the 39 Id. at 693, 104 S. Ct. at Id U.S., 133 S. Ct. 1103, 185 L. Ed. 2d 149 (2013). 42 State s Reply Brief at Id. at U.S., 133 S. Ct Danforth, supra. 46 See Commonwealth v. Sylvain, 466 Mass. 422, 995 N.E.2d 760 (2013) (adapting Teague framework but modifying oft-criticized new rule test). The State argues that DuPerry 9

16 procedural posture and nature of the claim should alter the Teague analysis) were explicitly avoided in Chaidez, 47 giving this Court a principled basis for distinguishing Chaidez. This Court should not hesitate to modify an adopted federal framework to the different circumstances presented by state habeas proceedings, as it did with respect to procedural default rules. 48 Here, the federal redressability regime embodied in the Griffith and Teague decisions was meant to encourage state courts to interpret the federal constitution, and established state courts as coequal developers of federal constitutional law by limiting federal review of their interpretations. Applying a rule of redress to claims properly raised for the first time in state habeas proceedings furthers these goals. Respectfully submitted this 6 th day of December, requires this Court to apply Teague and bar relief based on Teague s anti-redressability rule. State s Reply Brief at 9 (emphasis added). This is incorrect for two reasons. First, DuPerry pre-dated Danforth and therefore would need to be reconsidered had it held that Teague bound state courts. Second, DuPerry s holding was that the habeas court established a new constitutional rule in a collateral proceeding in contravention of the principles of Teague. Duperry v. Solnit, 261 Conn. 309, 326, 803 A.2d 287, 300 (2002) (emphasis added). As demonstrated here, the principles of Teague do not support denying redress to Mr. Thiersaint. See Sections I and II, supra U.S., 133 S. Ct n In 1991 this Court adopted for use in state habeas corpus proceedings the federal rule announced in Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977), for addressing procedural defaults in federal habeas corpus proceedings reviewing statecourt judgments. See Johnson, supra, 218 Conn. 403, 589 A.2d The Court did so only after thoroughly canvassing the reasons for the federal rule and determining their applicability to state habeas proceedings. Later, this Court modified this adopted federal rule, holding the Wainwright standard need not be applied to defaulted claims of ineffective assistance of trial counsel or ineffective assistance of appellate counsel because the purposes of the Wainwright standard are adequately served by the substantive test of Strickland v. Washington, supra, for ineffective assistance of counsel. Johnson v. Comm'r of Correction, 285 Conn. 556, , 941 A.2d 248, (2008) (holding Wainwright test inapplicable to claim of ineffective trial counsel because application of Strickland accomplishes the same result ); Valeriano v. Bronson, 209 Conn. 75, 85, 546 A.2d 1380, 1385 (1988) (holding Wainwright test inapplicable to claim of ineffective appellate counsel). 10

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