September 14, 2016
J. Reich, for the appellant (petitioner).
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).
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald,
Espinosa and Robinson, Js.
petitioner, Anthony Dyous, appeals from the judgment of the
habeas court denying his petition for a writ of habeas
corpus, in which he sought immediate release from the custody
of the respondent, Commissioner of Mental Health and
Addiction Services. On appeal, the petitioner contends, inter
alia, that the habeas court improperly determined that: (1)
in Duperry v. Solnit, 261 Conn. 309, 803
A.2d 287 (2002), this court considered the issue of whether a
plea of not guilty by reason of mental disease or defect must
be knowing and voluntary and, further, that Teague
v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103
L.Ed.2d 334 (1989), bars this claim for habeas relief; and
(2) his criminal trial attorney rendered effective assistance
of counsel by failing to research the law surrounding the
defense of mental disease or defect and failing toinform 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.
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.
state charged the petitioner with two counts of kidnapping in
the first degree in violation of General Statutes
(Rev. to 1983) § 53a-92 (a) (1), two counts of
threatening in the second degree in violation of General
Statutes (Rev. to 1983) § 53a-62 (a) (1), and
one count of carrying a dangerous weapon in violation of
General Statutes (Rev. to 1983) § 53-206 (a).
The petitioner, represented by counsel, pleaded not guilty to
all charges. He then filed a notice of his intention to
assert a defense of mental disease or defect. The petitioner
was tried before the court on November 2, 1984, in a
nonadversarial proceeding during which neither party
challenged the other's case. After the proceeding, the
court rendered a judgment that acquitted the petitioner of
all offenses on the basis of mental disease or defect and
committed the petitioner to the custody of the respondent for
a period not to exceed twenty-five years. The respondent
later transferred custody of the petitioner to the
jurisdiction of the Psychiatric Security Review Board (board)
in accordance with General Statutes § 17a-602.
his initial confinement, despite multiple unsuccessful
challenges, the petitioner has remained committed to the
custody of the board for more than twenty-five
years. To challenge his extended confinement, the
petitioner filed a petition for habeas corpus. Following the
appointment of habeas counsel, the petitioner filed a revised
amended petition, through which he raised two claims relevant
to this appeal: (1) his pursuit of a defense based on mental
disease or defect was not knowing and voluntary, in violation
of his due process rights, because he believed that he could
not be confined involuntarily beyond a maximum period of
twenty-five years; and (2) trial defense counsel was
ineffective by failing to research the law and advise the
petitioner that he could be confined involuntarily for more
than twenty-five years in the event he was found not guilty
by reason of mental disease or defect.
habeas court denied the petitioner's petition for a writ
of habeas corpus. In its thoughtful and comprehensive
memorandum of decision, the court concluded that: (1) the
petitioner's claim that his plea of not guilty by reason
of mental disease or defect was not knowing and voluntary was
barred by Duperry v. Solnit, supra, 261
Conn. 309, and in any event was barred procedurally by
Teague v. Lane, supra, 489 U.S. 288; and
(2) the petitioner failed to prove that his criminal trial
counsel was constitutionally ineffective under either of the
deficient performance or prejudice prongs of Strickland
v. Washington, 466 U.S. 668, 687, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984). 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.
begin with the petitioner's assertion that the habeas
court incorrectly determined that Duperry v.
Solnit, supra, 261 Conn. 309, and Teague v.
Lane, supra, 489 U.S. 288, precluded his claim that
his plea of not guilty by reason of mental disease or defect
was not knowing and voluntary. This claim presents a question
of law over which our review is plenary. See, e.g.,
Washington v. Commissioner of Correction,
287 Conn. 792, 799-800, 950 A.2d 1220 (2008).
they set the legal stage for the petitioner's claim, we
review Duperry v. Solnit, supra, 261 Conn.
309, and the federal district court's decision in
Duperry v. Kirk, 563 F.Supp.2d 370 (D.
Conn. 2008), which involve the same petitioner, Adam Duperry,
and arise from the same underlying set of facts. In
Duperry v. Solnit, supra, 311, this court
considered whether the habeas court ‘‘improperly
established a new constitutional rule in a collateral
proceeding in contravention of the principle announced in
Teague v. Lane, [supra, 489 U.S. 288], by
concluding that a criminal defendant who pleads not guilty
with the affirmative defense of mental disease or defect must
be canvassed as though he is pleading guilty to ensure that
his plea is made knowingly and voluntarily . . .
.'' (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.'' 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.
subsequently filed a habeas petition in federal court to
challenge his confinement. Duperry v. Kirk,
supra, 563 F.Supp.2d 370. In Kirk, the United States
District Court for the District of Connecticut considered
whether Duperry's claim that his plea was not entered
knowingly and voluntarily and his canvass claim were
doctrinally separate and distinct. See Id., 382-83.
The court separated the two counts in Duperry's federal
petition and determined that each was based on a unique
ground. Id., 383-84. The court observed that,
‘‘[t]he canvass rule helps ensure that a plea is
knowing, voluntary and intelligent, but the requirement that
plea be knowing, voluntary and intelligent represents an
independent constitutional imperative, regardless whether the
specific canvass rule is required.''
(Emphasis in original.) Id., 384. After determining
that Duperry had raised two separate claims in his petition,
the federal court analyzed whether this court had reached and
decided the merits of both claims in Solnit, in
order to determine whether the federal court owed deference
to this court's adjudication of Duperry's claims.
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');">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.
present appeal, the petitioner claims that the federal
court's interpretation of Duperry v.
Solnit, supra, 261 Conn. 309, in Duperry v.
Kirk, supra, 563 F.Supp.2d 383, controls. He
contends that the habeas court improperly analyzed footnote 7
in Solnit and, instead, advocates in support of the
reasoning in Kirk that this court failed to address
the claim regarding Duperry's plea in Solnit.
See Duperry v. Kirk, supra, 383. In
response, the respondent claims that the habeas court
properly concluded that the claim regarding the knowing and
voluntary nature of Duperry's plea is precluded by
Solnit, as this court considered both the claim
regarding Duperry's plea and his canvass claim. The
respondent further contends that the federal court's
decision in Kirk is a misinterpretation of state
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
deciding, that the federal district court correctly
determined in Kirk that this court did not consider
the claim regarding Duperry's plea; see Duperry
v. Solnit, supra, 261 Conn. 326 n.7; the claim
regarding the knowing and voluntary nature of the
petitioner's plea in the present appeal nevertheless is
barred by Teague v. Lane, supra, 489 U.S.
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 constitution.
Relying on Duperry v.Kirk, supra, 563
F.Supp.2d 385-86, the petitioner claims that the
Boykin principle extends to defenses based on mental
disease or defect. Thus, the petitioner contends that it was
well established at the time of his plea that the election to
pursue an affirmative defense of mental disease or defect,
like a decision to plead guilty, had to be knowing and
voluntary. The petitioner asserts that, because this rule was
well established at the time he entered his plea, the habeas
court would not have needed to establish a new constitutional
rule of criminal procedure to grant relief on his claim. The
petitioner asserts, rather, that the habeas court need only
apply Boykin to the facts of the present case.
Further, the petitioner claims that, even if the relief he
sought required the habeas court to establish a new
procedural rule, that rule falls ...