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*********************************************** 
WILLIE A. SAUNDERS v. COMMISSIONER

OF CORRECTION

(AC 41186)

Alvord, Prescott and Moll, Js.

Syllabus

The petitioner, who had been convicted of sexual assault in the first degree

and risk of injury to a child, filed a second petition for a writ of habeas

corpus, claiming that his rights to due process were violated because

he was tried while he was incompetent and a competency examination

had not been requested for him during the criminal proceedings by the

trial court or by the state, in violation of statute (§ 54-56d). In his first

habeas petition, the petitioner alleged that his trial counsel had rendered

ineffective assistance. The habeas court denied that petition, and this

court dismissed the petitioner’s appeal from that denial. In his two count

second habeas petition, the petitioner alleged in the first count that he

suffered from severe intellectual disabilities that included an inability

to read and write, and that he had been diagnosed at a young age as

suffering from mental retardation with brain functioning equivalent to

that of a ten year old. He alleged that as a result of those purported

deficiencies, he could not comprehend the nature of the criminal proceedings against him, other than the general nature of the charges and

that he faced incarceration if he were convicted. In the second count,

the petitioner alleged that he had significant physiological and mental

health afflictions that rendered him incompetent to be prosecuted and

to stand trial. The respondent Commissioner of Correction filed a return,

pursuant to the applicable rule of practice (§ 23-30), asserting that the

petitioner had procedurally defaulted as to both counts of his petition

because his due process claims were not raised during his criminal trial

or on direct appeal. The respondent further alleged that the petitioner

could not establish sufficient cause and prejudice to excuse the procedural defaults. The petitioner thereafter filed a reply to the respondent’s

return, pursuant to the applicable rule of practice (§ 23-31 [c]), in which

he asserted, inter alia, that he could demonstrate cause to excuse the

procedural defaults on the basis of the allegations in his habeas petition.

The habeas court granted the respondent’s motion to dismiss the second

habeas petition, concluding that the petitioner’s due process claims

were procedurally defaulted and that he had failed to allege legally

cognizable cause and prejudice to overcome the procedural defaults.

The court thereafter granted the petition for certification to appeal, and

the petitioner appealed to this court. Held:

1. The petitioner’s claim that the procedural default rule did not apply to

his due process claims, raised for the first time by way of a petition for

a writ of habeas corpus, that he was incompetent to stand trial and that

the state and the trial court failed to comply with § 54-56d was unavailing:

a. The petitioner’s due process claims, although not distinctly raised

before or adjudicated by the habeas court, were reviewable, as the

petitioner’s reply to the respondent’s return contested the assertion

of procedural default, and whether the procedural default rule was

applicable to the petitioner’s claims was a question of law that required

no factual findings by the habeas court.

b. The petitioner’s procedural and substantive competency claims were

subject to procedural default: although principles of federalism and

comity do not apply in state habeas proceedings, federal and state habeas

proceedings share a principal prudential interest in the application of

the procedural default rule, which is vindicating the finality of judgments,

and applying the procedural default rule to a procedural and substantive

competency claim accords weight to the finality of judgments by forcing

the defendant to litigate all of his claims together, as quickly after trial

as the docket will allow, and while the attention of the court is focused

on his case, and the rule promotes the systemic interests of conservation

of judicial resources and the accuracy and efficiency of judicial decisions; moreover, the risk of an incompetent person being convicted and

sentenced without any requested examination of, or other challenge to,
his or her competency during the criminal trial proceedings or on direct

appeal is so minimal that the systemic interests of finality, accuracy of

judicial decisions and conservation of judicial resources vastly outweighed such risk, which is not enhanced by requiring a habeas petitioner to allege legally cognizable cause to overcome the procedural

default, and that conclusion struck the right balance in according appropriate weight to those systemic interests; furthermore, this court

declined to treat the petitioner’s claims of incompetence to stand trial

in the same manner as substantial claims of actual innocence, which

are not subject to procedural default, as state habeas review jurisprudence has developed in tandem with federal habeas review jurisprudence, which limits the fundamental miscarriage of justice exception

to actual innocence claims, and our appellate courts have consistently

and broadly applied the cause and prejudice standard to all trial level

and appellate level procedural defaults, with certain limited exceptions.

2. The habeas court properly determined that the petitioner’s claims were

procedurally defaulted because his reply was deficient and he failed to

demonstrate cause to excuse his procedural defaults; the petitioner’s

reply did not satisfy the requirements of Practice Book § 23-31 (c), as the

petitioner did not articulate with specificity any facts that demonstrated

cause to overcome his procedural defaults but, rather, baldly alleged

that he could demonstrate cause to excuse the procedural defaults solely

on the basis of the allegations in his habeas petition, and even if the

petitioner were permitted to rely on the allegations in his habeas petition

to demonstrate cause and prejudice to excuse his procedural defaults,

the allegations that he was incompetent to stand trial were not sufficient

to overcome the procedural defaults, as his alleged incompetence was

an internal, rather than an external, impediment to his defense and,

thus, could not serve as cause to overcome a procedural default.

Argued May 23—officially released November 26, 2019

Procedural History

Amended petition for a writ of habeas corpus,

brought to the Superior Court in the judicial district of

Tolland, where the court, Kwak, J., granted the respondent’s motion to dismiss and rendered judgment

thereon, from which the petitioner, on the granting of

certification, appealed to this court. Affirmed.

Vishal K. Garg, assigned counsel, with whom, on the

brief, was Desmond M. Ryan, for the appellant (petitioner).

Bruce R. Lockwood, supervisory assistant state’s

attorney, with whom, on the brief, were Maureen Platt,

state’s attorney, and Eva B. Lenczewski, supervisory

assistant state’s attorney, for the appellee (respondent).
Opinion

MOLL, J. The petitioner, Willie A. Saunders, appeals

from the judgment of the habeas court dismissing his

petition for a writ of habeas corpus on the ground that

his due process claims, predicated on allegations that

he was incompetent to stand trial and that the state

and the trial court failed to comply with General Statutes § 54-56d,1 were procedurally defaulted. On appeal,

the petitioner claims that the court improperly dismissed the petition because (1) his due process claims

were not subject to the procedural default rule, or (2)

alternatively, he sufficiently pleaded cause and prejudice to overcome the procedural defaults and allow

judicial review of his claims. We disagree and, accordingly, affirm the judgment of the habeas court.

The following recitation was set forth by this court

in the petitioner’s direct appeal from his conviction.

‘‘The jury reasonably could have found the following

facts. On April 20, 2003, Easter Sunday, the victim,2 who

was ten years old at the time, and several members of

her family . . . were staying with the [petitioner’s] sister . . . in her apartment. . . . The sleeping arrangements were such that the victim shared a room with

her five year old brother, C . . . . On that night, the

victim shared a twin bed with [C] . . . . The victim

slept on her stomach, still dressed in her Easter dress

with her undergarments and shoes on. At some point,

the [petitioner] entered the room and shook the victim’s

arm, telling her that her mother wanted her. The victim

feigned sleep and ignored the [petitioner], who then

went into the hall outside the room. . . . The [petitioner] reentered the room and approached the victim,

who was still feigning sleep, face down on the bed. He

pulled down her undergarments and left the room again.

He soon returned and removed C from the twin bed he

was sharing with the victim and placed him on the floor.

C did not awaken. The [petitioner] then inserted his

penis into the victim’s vagina. The [petitioner] had lubricated his penis with shampoo that burned the victim’s

vagina. The [petitioner] then tried to insert his penis

fully into the victim’s vagina for five minutes to no avail.

During the assault, the victim continued to feign sleep

in fear that had she not, the [petitioner] would have

physically assaulted her. After ending his efforts, the

[petitioner] pulled the victim’s undergarments back up,

placed C back on the bed and left the room. . . . The

victim did not immediately report the assault.

‘‘On October 29, 2003, the victim was at home with

C and her older brother, D, while their mother was at

work. She and D were watching the movie ‘The Color

Purple’ on television. In the movie, there is a scene in

which a character is raped by her father and becomes

pregnant. After viewing the movie, the victim had a

violent outburst in which she destroyed several glass

figurines and other items she kept in her bedroom. D
intervened, asking the victim what was wrong with her.

The victim told D that the [petitioner] had raped her.

D then called their mother and reported to her what

the victim had told him. The victim’s mother came home

and called the police. . . . Subsequently, the victim

picked the [petitioner’s] photograph out of a photographic array at the police department.’’ (Footnote in

original; footnotes omitted.) State v. Saunders, 114

Conn. App. 493, 495–96, 969 A.2d 868, cert. denied, 292

Conn. 917, 973 A.2d 1277 (2009).

By way of a substitute long form information, the

petitioner was charged with sexual assault in the first

degree in violation of General Statutes § 53a-70 (a) (2)

and risk of injury to a child in violation of General

Statutes § 53-21 (a) (2). In June, 2006, following a jury

trial, the petitioner was found guilty of both crimes.

The trial court imposed a total effective sentence of

ten years of imprisonment followed by fifteen years

of special parole. This court affirmed the judgment of

conviction.3 See State v. Saunders, supra, 114 Conn.

App. 509.

In October, 2009, the petitioner filed a petition for a

writ of habeas corpus alleging that his trial counsel

had rendered ineffective assistance by failing to call

additional alibi witnesses at trial (first petition). The

habeas court denied the first petition. Following the

denial of the petitioner’s petition for certification to

appeal, the petitioner filed an appeal, which this court

dismissed. Saunders v. Commissioner of Correction,

143 Conn. App. 902, 67 A.3d 316, cert. denied, 310 Conn.

917, 76 A.3d 632 (2013).

On September 28, 2015, more than nine years following the judgment of conviction, the petitioner filed a

second petition for a writ of habeas corpus—the petition at issue in this appeal (second petition). The second

petition consisted of two counts asserting due process

violations under the fifth and fourteenth amendments

to the United States constitution and article first, §§ 8

and 9, of the Connecticut constitution on the grounds

that the petitioner was incompetent to be prosecuted

and to stand trial and that, in violation of § 54-56d, no

competency examination had been requested by his

trial counsel, the state, or the trial court during the

criminal proceedings. In count one, the petitioner

alleged that he suffers from severe intellectual disabilities, including, inter alia, an inability to read or write,

a diagnosis of ‘‘mental retardation’’ at a young age, and

brain functioning equivalent to that of a ten year old

child. The petitioner alleged that, as a result of these

purported deficiencies, he could not comprehend the

nature of the criminal proceedings against him, other

than the general nature of the charges and the fact that

he was facing incarceration if convicted. He further

alleged that his trial counsel, the state, and the court did

not request that he undergo a competency examination
during the course of the criminal proceedings.

In count two of the second petition, the petitioner

alleged that he had significant physiological and mental

health afflictions that rendered him incompetent to be

prosecuted and to stand trial. The petitioner alleged,

inter alia, that he had a long history of epileptic seizures,

a visibly misshapen head, paranoia, schizophrenia, and

depression, and that he had been hospitalized on numerous occasions in North Carolina prior to his arrest for

the crimes at issue. The petitioner further alleged that

these conditions continued to plague him throughout

his period of incarceration. He also alleged, as he had

in the first count, that his trial counsel, the state, and the

trial court had not requested a competency examination

during the course of the criminal proceedings.

On March 31, 2016, pursuant to Practice Book § 23-

30,4

the respondent, the Commissioner of Correction,

filed a return denying the material allegations in the

second petition and asserting several affirmative

defenses, including procedural default as to both counts

of the second petition.5 According to the respondent,

the petitioner’s due process claims regarding his alleged

incompetency were not raised during the petitioner’s

criminal trial or pursued on direct appeal from the judgment of conviction and, thus, the claims were barred

by the procedural default rule. Furthermore, the respondent alleged that the petitioner could not establish sufficient cause and prejudice to excuse the procedural

defaults.

On July 20, 2016, pursuant to Practice Book § 23-31,6

the petitioner filed a reply. Therein, in response to the

respondent’s affirmative defenses sounding in procedural default, the petitioner alleged that because his

due process rights were violated by virtue of his standing trial while he was incompetent, it would be ‘‘circular’’ and ‘‘illogical’’ to subject his due process claims to a

procedural default analysis. The petitioner also alleged

that he could not have raised his due process claims

at any earlier juncture because he is ‘‘significantly developmentally disabled because of his significantly low IQ

[intelligence quotient] of 50’’ and none of his previous

attorneys had his IQ tested and/or his competency evaluated. Finally, in the alternative, he alleged that he could

establish both cause and prejudice to overcome the

procedural defaults.7

On October 25, 2017, pursuant to Practice Book § 23-

29, the respondent filed a motion to dismiss the second

petition, inter alia, on the ground that the petitioner’s

due process claims raised therein were procedurally

defaulted.8 Following a hearing held on the same day,9

the habeas court issued a memorandum of decision

granting the motion to dismiss.10 The court determined

that the petitioner’s due process claims11 were procedurally defaulted and that he had failed to allege legally

cognizable cause and prejudice to overcome the proce-
dural defaults. The petitioner then filed a petition for

certification to appeal, which the court granted. This

appeal followed. Additional facts and procedural history will be set forth as necessary.

Before turning to the petitioner’s claims, we begin

by setting forth the relevant legal principles and standard of review. ‘‘Practice Book § 23-29 (5) permits a

habeas court to dismiss a petition for ‘any . . . legally

sufficient ground’ ’’; Fuller v. Commissioner of Correction, 75 Conn. App. 814, 818, 817 A.2d 1274, cert. denied,

263 Conn. 926, 823 A.2d 1217 (2003); which may include

procedural default. Brewer v. Commissioner of Correction, 162 Conn. App. 8, 16–19, 130 A.3d 882 (2015). ‘‘The

conclusions reached by the trial court in its decision

to dismiss [a] habeas petition are matters of law, subject

to plenary review. . . . [If] the legal conclusions of the

court are challenged, we must determine whether they

are legally and logically correct . . . and whether they

find support in the facts that appear in the record. . . .

To the extent that factual findings are challenged, this

court cannot disturb the underlying facts found by the

habeas court unless they are clearly erroneous.’’ (Internal quotation marks omitted.) Boria v. Commissioner

of Correction, 186 Conn. App. 332, 338, 199 A.3d 1127

(2018).

I

We first address the petitioner’s assertion that his

due process claims raised in the second petition were

not subject to the procedural default rule and, thus, the

habeas court erred in determining that the claims were

procedurally defaulted. As a preliminary matter, the

respondent argues that we should not consider this

particular assertion because it was neither distinctly

raised by the petitioner before the habeas court nor

adjudicated by that court. We conclude that the petitioner’s claim is reviewable but unavailing.

Under our rules of practice, we are not bound to

consider a claim unless it was distinctly raised at trial

or during subsequent proceedings. See Practice Book

§ 60-5. ‘‘A reviewing court will not consider claims not

raised in the habeas petition or decided by the habeas

court. . . . Appellate review of claims not raised

before the habeas court would amount to an ambuscade

of the [habeas] judge.’’ (Internal quotation marks omitted.) Giattino v. Commissioner of Correction, 169

Conn. App. 566, 580, 152 A.3d 558 (2016); see also Henderson v. Commissioner of Correction, 129 Conn. App.

188, 198, 19 A.3d 705 (declining to review petitioner’s

claim on appeal where record revealed that claim not

raised during habeas proceedings and habeas court did

not rule on claim), cert. denied, 303 Conn. 901, 31 A.3d

1177 (2011).

We conclude that the petitioner’s contention that his

due process claims were not subject to the procedural
default rule is properly preserved for our review. In his

reply to the respondent’s return, the petitioner explicitly

contested whether his due process claims could be

procedurally defaulted, contending that conducting a

procedural default analysis with respect to his claims

would be ‘‘circular’’ and ‘‘illogical.’’ In its memorandum

of decision, the habeas court concluded that the petitioner’s claims were procedurally defaulted. Furthermore, whether the procedural default rule is applicable

to the petitioner’s claims is a question of law requiring

no factual findings by the habeas court. Therefore, the

petitioner’s assertion that his claims are not subject

to the procedural default rule is properly before us

for review.

We now turn to the merits of the petitioner’s claim.

The petitioner, relying primarily on the decision of the

United States Court of Appeals for the Second Circuit

in Silverstein v. Henderson, 706 F.2d 361 (2d Cir.), cert.

denied, 464 U.S. 864, 104 S. Ct. 195, 78 L. Ed. 2d 171

(1983), contends that his due process claims, predicated

on his alleged incompetence to stand trial and the

alleged failures of the state and the trial court to request

that he undergo a competency examination under § 54-

56d,12 are not subject to the procedural default rule.

The respondent argues that the petitioner’s due process

claims are not immune to procedural default. We agree

with the respondent.

In order to resolve the petitioner’s claim on appeal,

we begin with a review of the procedural default rule

and its development. ‘‘Under the procedural default

doctrine, a claimant may not raise, in a collateral proceeding, claims that he could have made at trial or on

direct appeal in the original proceeding, unless he can

prove that his default by failure to do so should be

excused.’’ (Internal quotation marks omitted.) Cator v.

Commissioner of Correction, 181 Conn. App. 167, 199,

185 A.3d 601, cert. denied, 329 Conn. 902, 184 A.3d

1214 (2018).

‘‘Prior to 1991, [our Supreme Court] employed the

deliberate bypass rule, as articulated in Fay v. Noia,

[372 U.S. 391, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963)], in

order to determine the reviewability of constitutional

claims in habeas corpus proceedings that had not been

properly raised at trial or pursued on direct appeal.

. . . In Fay v. Noia, supra, 438–39, the United States

Supreme Court held that federal habeas corpus jurisdiction was not affected by the procedural default, specifically a failure to appeal, of a petitioner during state

court proceedings resulting in his conviction. The court

recognized, however, a limited discretion in the federal

habeas judge to deny relief to an applicant who has

deliberately by-passed the orderly procedure of the

state courts and in so doing has forfeited his state court

remedies. . . . This deliberate bypass standard for

waiver required an intentional relinquishment or aban-
donment of a known right or privilege by the petitioner

personally and depended on his considered choice.

. . . A choice made by counsel not participated in by

the petitioner does not automatically bar relief.’’ (Citation omitted; internal quotation marks omitted.) Jackson v. Commissioner of Correction, 227 Conn. 124,

130–31, 629 A.2d 413 (1993).

‘‘After Fay, the United States Supreme Court took

the view that it had failed to accord adequate weight

to comity and finality of the state court judgments and,

accordingly, steadily increased the power of federal

courts to deny habeas corpus claims based on state

procedural defaults by determining that such claims

should be reviewed under a more stringent cause and

prejudice standard. . . . This change was accomplished by applying the cause and prejudice standard

in a series of cases in which procedural defaults arose

in a variety of circumstances.’’ (Citations omitted.)

Crawford v. Commissioner of Correction, 294 Conn.

165, 180–81, 982 A.2d 620 (2009).

For example, in 1977, in Wainwright v. Sykes, 433

U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977), the

United States Supreme Court rejected ‘‘the sweeping

language of Fay’’; id., 87; which, ‘‘going far beyond the

facts of the case’’; id., 87–88; ‘‘would make federal

habeas review generally available to state convicts

absent a knowing and deliberate waiver of the federal

constitutional contention.’’ Id., 87. Instead, the court

applied the rule of Francis v. Henderson, 425 U.S. 536,

542, 96 S. Ct. 1708, 48 L. Ed. 2d 149 (1976)—which

barred federal habeas review absent a showing of

‘‘cause’’ for the failure to raise the claim previously and

‘‘prejudice’’ resulting from the alleged constitutional

violation—to a defaulted ‘‘objection to the admission

of a confession at trial . . . .’’ Wainwright v. Sykes,

supra, 87. The court left ‘‘open for resolution in future

decisions the precise definition of the ‘cause’ and ‘prejudice’ standard, and note[d] . . . only that it is narrower

than the standard set forth in dicta in Fay v. Noia,

[supra, 372 U.S. 391] . . . .’’ Wainwright v. Sykes,

supra, 87. ‘‘Thus was born the Wainwright ‘cause-andprejudice’ standard for habeas review.’’ Johnson v.

Commissioner of Correction, 218 Conn. 403, 413, 589

A.2d 1214 (1991).

As our Supreme Court recognized in McClain v. Manson, 183 Conn. 418, 439 A.2d 430 (1981), however,

because the United States Supreme Court in ‘‘ ‘[Wainwright v. Sykes, supra, 433 U.S. 72] left intact its holding

in Fay v. Noia, [supra, 372 U.S. 391] it remain[ed] undecided which procedural waivers [would] be evaluated

under Fay’s ‘‘deliberate bypass’’ standard and which

under the narrower ‘‘cause’’ and ‘‘prejudice’’ test of

Sykes.’ ’’ McClain v. Manson, supra, 428–29 n.15, quoting U.S. ex rel. Carbone v. Manson, 447 F. Supp. 611,

619 (D. Conn. 1978).
In 1991, the United States Supreme Court ‘‘unequivocally closed McClain’s ‘open question’ in Coleman [v.

Thompson, 501 U.S. 722, 750, 111 S. Ct. 2546, 115 L.

Ed. 2d 640 (1991)],’’ by expressly rejecting the continued

viability of Fay’s deliberate bypass standard for federal

habeas review. Crawford v. Commissioner of Correction, supra, 294 Conn. 184. That is, ‘‘[i]n Coleman [v.

Thompson, supra, 750], the Supreme Court explicitly

overruled Fay, holding that the cause and prejudice

standard applies to ‘all cases in which a state prisoner

has defaulted his federal claims in state court pursuant

to an independent and adequate state procedural rule

. . . .’ ’’ (Emphasis in original.) Crawford v. Commissioner of Correction, supra, 182. ‘‘Under this standard,

state prisoners who have defaulted federal claims in

state court cannot obtain federal habeas corpus review

unless they can ‘demonstrate cause for the default and

actual prejudice as a result of the alleged violation of

federal law, or demonstrate that failure to consider

the claims will result in a fundamental miscarriage of

justice.’13 [Coleman v. Thompson, supra, 750.] In setting

out this standard, the Supreme Court emphasized the

importance of the uniform application of procedural

default standards, regardless of the specific nature of

the procedural default. Id., 750–51 (‘[b]y applying the

cause and prejudice standard uniformly to all independent and adequate state procedural defaults, we eliminate the irrational distinction between Fay and the rule

of cases like Francis [v. Henderson, supra, 425 U.S.

536], Sykes . . . and [Murray v. Carrier, 477 U.S. 478,

106 S. Ct. 2639, 91 L. Ed. 2d 397 (1986)]’).’’ (Footnote

added.) Crawford v. Commissioner of Correction,

supra, 182.

‘‘Although [our appellate courts are] not compelled

to conform state postconviction procedures to federal

procedures . . . our jurisprudence has followed the

contours of the Supreme Court’s adoption and subsequent rejection of the deliberate bypass standard.’’

(Citation omitted.) Id. Our Supreme Court has followed

the federal denunciation of Fay’s deliberate bypass

standard and held that the cause and prejudice standard

in Wainwright applies to claims that were not pursued

at trial or on direct appeal but were later raised in

habeas proceedings. See Jackson v. Commissioner of

Correction, supra, 227 Conn. 132, 136 (adopting Wainwright’s cause and prejudice standard for habeas

review of constitutional claims not pursued on direct

appeal); Johnson v. Commissioner of Correction,

supra, 218 Conn. 417–19 (adopting Wainwright’s cause

and prejudice standard for habeas review of constitutional claims not properly preserved at trial). ‘‘Since

Jackson, [our Supreme Court] consistently and broadly

has applied the cause and prejudice standard to trial

level and appellate level procedural defaults in habeas

corpus petitions.’’ Crawford v. Commissioner of Correction, supra, 294 Conn. 186. But see Hinds v. Com-
missioner of Correction, 321 Conn. 56, 61, 136 A.3d

596 (2016) (concluding that ‘‘challenges to kidnapping

instructions in criminal proceedings rendered final

before [State v. Salamon, 287 Conn. 509, 949 A.2d 1092

(2008)] are not subject to the procedural default rule’’);

Summerville v. Warden, 229 Conn. 397, 422, 641 A.2d

1356 (1994) (holding that substantial claim of actual

innocence is not subject to procedural default rule).

The precise issue before us is whether the procedural

default rule applies to due process claims, raised for

the first time by way of a petition for a writ of habeas

corpus, that a petitioner was incompetent to stand trial

and/or that the state and the trial court failed to comply

with § 54-56d. This issue has not been squarely

addressed by this court or by our Supreme Court.

Although we are not bound by federal postconviction

jurisprudence; Hinds v. Commissioner of Correction,

supra, 321 Conn. 70; we continue our discussion by

turning to cases from the federal courts and our sister

states for guidance. See State v. Favoccia, 306 Conn.

770, 790–91, 51 A.3d 1002 (2012) (‘‘[i]nasmuch as this

is an issue of first impression . . . we turn for guidance

to cases from the federal courts and our sister states’’

[footnote omitted]).

In 1966, the United States Supreme Court observed

that ‘‘it is contradictory to argue that a defendant may

be incompetent, and yet knowingly or intelligently

‘waive’ his right to have the court determine his capacity

to stand trial.’’ Pate v. Robinson, 383 U.S. 375, 384, 86

S. Ct. 836, 15 L. Ed. 2d 815 (1966); see also Drope v.

Missouri, 420 U.S. 162, 171, 95 S. Ct. 896, 43 L. Ed. 2d

103 (1975) (recognizing, upon granting of certiorari

from direct state court criminal appeal, long accepted

principle that person who lacks capacity to understand

nature and object of proceedings against him, to consult

with counsel, and to assist in preparation of defense

may not be subjected to trial).

Against the backdrop of the United States Supreme

Court’s incremental departure from, and eventual rejection of, the deliberate bypass standard, we observe that

the better weight of post-Coleman federal Circuit Court

authority has rejected the expansion of Pate and/or

Drope to preclude the application of the procedural

default rule to procedural and substantive competency

claims.14 As we will explain, these courts reason that

there is a fundamental distinction between the legal

theories of waiver, as applied in Pate and Drope, and

procedural default.

For example, in Smith v. Moore, 137 F.3d 808, 818

(4th Cir.), cert. denied, 525 U.S. 886, 119 S. Ct. 199, 142

L. Ed. 2d 163 (1998), the petitioner, who claimed in an

appeal from the denial of his petition for a writ of habeas

corpus that he was incompetent to stand trial, argued

that competence to stand trial cannot be waived and,

therefore, cannot be procedurally defaulted. The United
States Court of Appeals for the Fourth Circuit disagreed, holding that the petitioner was procedurally

barred from raising the claim for the first time on habeas

review. Id. The court reasoned: ‘‘Neither Drope nor Pate

. . . support[s] [the petitioner’s] argument that competence to stand trial may be raised at any time. The

rather unremarkable premise behind Drope and Pate is

that an incompetent defendant cannot knowingly or

intelligently waive his rights. . . . Unlike waiver,

which focuses on whether conduct is voluntary and

knowing, the procedural default doctrine focuses on

comity, federalism, and judicial economy. . . . Put simply, the rationale of Drope and Pate [is] inapposite in the

context of a procedural default.’’ (Citations omitted.)

Smith v. Moore, supra, 818–19; see also Burket v. Angelone, 208 F.3d 172, 191–95 (4th Cir.) (concluding that

petitioner’s procedural and substantive competency

claims were procedurally defaulted), cert. denied, 530

U.S. 1283, 120 S. Ct. 2761, 147 L. Ed. 2d 1022 (2000);

accord Gonzales v. Davis, 924 F.3d 236, 242–44 (5th

Cir. 2019) (concluding that petitioner’s procedural competency claims were procedurally defaulted).

The United States Court of Appeals for the Sixth

Circuit agrees. In Hodges v. Colson, 727 F.3d 517, 539–40

(6th Cir. 2013), cert. denied sub nom. Hodges v. Carpenter, U.S. , 135 S. Ct. 1545, 191 L. Ed. 2d 642 (2015),

the Sixth Circuit considered whether the petitioner’s

substantive competency claim was subject to procedural default. The court concluded that it was rejecting

the petitioner’s reliance on decisions from the United

States Courts of Appeals for the Tenth and Eleventh

Circuits that distinguished between procedural competency claims (which those courts have held are subject

to procedural default) and substantive competency

claims (which those courts have held are not subject

to procedural default). Id., 540 (citing Battle v. United

States, 419 F.3d 1292, 1298 [11th Cir. 2005], cert. denied,

549 U.S. 1343, 127 S. Ct. 2030, 167 L. Ed. 2d 772 [2007];

Walker v. Gibson, 228 F.3d 1217, 1229 [10th Cir. 2000],

cert. denied, 533 U.S. 933, 121 S. Ct. 2560, 150 L. Ed.

2d 725 [2001]; Adams v. Wainwright, 764 F.2d 1356,

1359 [11th Cir. 1985], cert. denied, 474 U.S. 1073, 106

S. Ct. 834, 88 L. Ed. 2d 805 [1986]). The Sixth Circuit

explained: ‘‘[N]either the Supreme Court nor this court

has adopted such a rule, and we decline to do so here.

As the [United States Court of Appeals for the] Ninth

Circuit noted in LaFlamme v. Hubbard, [Docket No.

97-6973, 2000 WL 757525, *2 (9th Cir. March 16, 2000)

(decision without published opinion, 225 F.3d 663 ([9th

Cir. 2000])], those courts that have held that substantive

competency claims cannot be procedurally defaulted

appear to have conflated the distinct concepts of waiver

and procedural default. Although it is true that substantive competency claims cannot be waived, Pate v. Robinson, [supra, 383 U.S. 384] (‘it is contradictory to argue

that a defendant may be incompetent, and yet know-
ingly or intelligently ‘‘waive’’ his right to have the court

determine his capacity to stand trial’), they can be procedurally defaulted. We agree with the Ninth Circuit

that, ‘unlike waiver, the procedural default rule does

not rely on the petitioner’s voluntary abandonment of

a known right but only on the fact that the claim was

rejected by the state court on independent and adequate

state grounds.’ [LaFlamme v. Hubbard, supra, 2000 WL

757525, *2] . . . . We hereby hold that substantive

competency claims are subject to the same rules of

procedural default as all other claims that may be presented on habeas.’’15 Hodges v. Colson, supra, 540.

In Martinez-Villareal v. Lewis, 80 F.3d 1301, 1307

(9th Cir.), cert. denied sub nom. Martinez-Villareal v.

Stewart, 519 U.S. 1030, 117 S. Ct. 588, 136 L. Ed. 2d 517

(1996), the Ninth Circuit similarly held that a petitioner’s substantive competency claim could be procedurally defaulted, rejecting an expansive application of

Pate and distinguishing between the defenses of waiver

and procedural default. The court explained: ‘‘The

waiver standard does not apply when the [s]tate urges

procedural default as a defense to a state prisoner’s

claims. In [Wainwright v. Sykes, supra, 433 U.S. 73],

the [United States Supreme] Court specifically rejected

the waiver-based ‘deliberate by-pass’ standard of [Fay],

as applied to claims of procedural default. In Coleman,

the [c]ourt made it clear that the cause and prejudice

standard applies to all ‘independent and adequate state

procedural defaults.’ . . . The analytical basis of a

defense of waiver differs markedly from that of a

defense of procedural default. A claim has been ‘waived’

if it was not raised and if the standard of ‘voluntary

relinquishment or abandonment of a known right,’ articulated in Fay, is met. In contrast, a finding of procedural

default requires only that the claim was rejected by the

state court on independent and adequate state procedural grounds.’’ (Citation omitted.) Martinez-Villareal

v. Lewis, supra, 1307. The court concluded that,

because claims relating to the petitioner’s alleged

incompetence to stand trial were not raised until his

third habeas petition, ‘‘the district court erred in holding

that the claim was not procedurally defaulted.’’ Id.

We also note that several decisions from our sister

states also support the conclusion that competency

claims are subject to procedural default. See, e.g., Perkins v. Hall, 288 Ga. 810, 822, 708 S.E.2d 335 (2011)

(‘‘substantive claims of incompetence to stand trial will

continue to be subject to procedural default’’); State v.

Watkins, 284 Neb. 742, 749–50, 825 N.W.2d 403 (2012)

(applying procedural default rule to substantive competency claim).

Persuaded to follow, for purposes of state habeas

review, the better weight of authority discussed previously in this opinion, we hold that a petitioner’s procedural and substantive competency claims are subject
to procedural default. Although principles of federalism

and comity do not apply in state habeas proceedings,

federal and state habeas proceedings share a principal

prudential interest in the application of the procedural

default rule, namely, vindicating the finality of judgments. See Hinds v. Commissioner of Correction,

supra, 321 Conn. 71–72. In applying the cause and prejudice standard to all procedural defaults, our Supreme

Court has consistently affirmed finality as a compelling

policy. See, e.g., Crawford v. Commissioner of Correction, supra, 294 Conn. 188 (citing Johnson and Jackson). Applying the procedural default rule to a procedural or substantive competency claim accords

adequate weight to the finality of judgments ‘‘by forcing

the defendant to litigate all of his claims together, as

quickly after trial as the docket will allow, and while

the attention of the appellate court is focused on his

case.’’ (Internal quotation marks omitted.) Jackson v.

Commissioner of Correction, supra, 227 Conn. 134. The

procedural default rule promotes not only the finality

of judgments but also the systemic interests of conservation of judicial resources and ‘‘the accuracy and efficiency of judicial decisions,’’ by preserving ‘‘the opportunity to resolve the issue shortly after trial, while

evidence is still available both to assess the defendant’s

claim and to retry the defendant effectively [as appropriate] if he prevails in his appeal.’’ (Internal quotation

marks omitted.) Id. Stated differently, the passage of

time creates a sufficiently harmful risk that the accuracy

of judicial decisions will be diminished, as memories

fade and records are less likely to be available.

Meanwhile, we are persuaded that the risk of a truly

incompetent person being convicted and sentenced

without any requested examination of, or other challenge to, his or her competency during the criminal trial

proceedings or on direct appeal is so minimal that the

systemic interests of finality, accuracy of judicial decisions, and conservation of judicial resources vastly outweighed such risk. Moreover, we do not perceive that

such risk is enhanced by requiring a habeas petitioner

to allege legally cognizable cause to overcome the procedural default.

As our Supreme Court recently has observed, ‘‘habeas

relief is designed to address situations in which a miscarriage of justice would exist without such relief, and

the cause and prejudice standard 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.’’ Newland v. Commissioner of Correction, 331 Conn. 546, 559–60, 206 A.3d

176 (2019). Our conclusion herein, which preserves the

availability of habeas review of a due process claim

predicated on procedural or substantive competency

but requires a petitioner making such a claim to allege

legally cognizable cause and prejudice in reply to a

procedural default defense; see footnote 17 of this opin-
ion; strikes the right balance in according appropriate

weight to the systemic interests discussed previously.

In support of his claim that competency claims are

not subject to procedural default, the petitioner largely

relies on the Second Circuit’s decision in Silverstein v.

Henderson, supra, 706 F.2d 361. By way of background,

in Silverstein, after his two state court petitions seeking

to vacate his conviction had been dismissed, the petitioner filed a petition for a writ of habeas corpus in a

federal District Court, asserting, inter alia, that he had

been deprived of his right to due process by the state

trial court’s failure to hold a competency hearing under

New York law and its acceptance of his guilty plea

while he was incompetent to stand trial. Id., 363–64.

The federal District Court dismissed the petition on the

ground that the petitioner had neglected to raise the

issue on direct appeal. Id., 362, 365. On appeal, the state

of New York argued that the petitioner had failed to

raise a challenge to his competence on direct appeal

in state court and, thus, he could not seek relief in

federal court. Id., 366. The Second Circuit rejected that

argument. The Second Circuit observed that ‘‘[t]he question presented here is whether the waiver rule of [Wainwright v. Sykes, supra, 433 U.S. 72]16 . . . applies to

the right recognized by [Pate].’’ (Footnote added.) Id.,

367. The Second Circuit concluded that ‘‘Wainwright’s

waiver rule cannot apply when the basis for attacking

the conviction is that the defendant is incompetent to

stand trial, and thus incompetent to ‘waive’ his rights.

. . . Thus, when the trial court neglects its duty to

conduct a hearing on competence, the defendant’s failure to object or to take an appeal on the issue will

not bar collateral attack.’’ (Citation omitted.) Id. The

Second Circuit stated: ‘‘In sum, under Wainwright, [the

petitioner’s] failure to allege on direct appeal that he

was incompetent does not bar federal habeas relief.’’

Id., 368.

We decline to follow the Second Circuit’s decision

in Silverstein for two reasons. First, the rationale underpinning the Silverstein decision is outdated, and we

have significant doubts as to the current viability of the

decision. Silverstein is a decision issued in 1983, during

the pre-Coleman period when, because the United

States Supreme Court in Wainwright ‘‘left intact its

holding in Fay v. Noia, [supra, 372 U.S. 391], it

remain[ed] undecided which procedural waivers

[would] be evaluated under Fay’s deliberate bypass

standard and which under the narrower cause and prejudice test of Sykes.’’ (Internal quotation marks omitted.)

McClain v. Manson, supra, 183 Conn. 428–29 n.15. In

reaching its decision in Silverstein, the Second Circuit

relied on the premise that, under Pate, an incompetent

petitioner cannot knowingly or intelligently waive his or

her rights. Like other decisions during that pre-Coleman

period, Silverstein conflates the defenses of waiver and

procedural default. Put simply, although competency
claims cannot be waived under Pate, they may be procedurally defaulted. See Hodges v. Colson, supra, 727 F.3d

540. For these reasons, we consider Silverstein to be

unpersuasive.

Second, although we acknowledge that ‘‘it is well

settled that decisions of the Second Circuit, while not

binding upon this court, nevertheless carry particularly

persuasive weight in the resolution of issues of federal

law’’; (internal quotation marks omitted) St. Juste v.

Commissioner of Correction, 328 Conn. 198, 210, 177

A.3d 1144 (2018); the present case involves the application of a state procedural default rule raised in the

context of the petitioner’s federal due process claims

concerning his competency and, thus, does not require

us to resolve a pure issue of federal law.

The petitioner also thinly asserts that this court

should treat claims of incompetence to stand trial in the

same manner as substantial claims of actual innocence,

which are not subject to procedural default. See Summerville v. Warden, supra, 229 Conn. 422 (concluding

that ‘‘[t]he continued imprisonment of one who is actually innocent would constitute a miscarriage of justice’’

such that, notwithstanding strong interest in finality of

judgments, substantial claim of actual innocence cannot be procedurally defaulted). We decline to do so for

two reasons. First, mindful that our state habeas review

jurisprudence has developed in tandem with federal

habeas review jurisprudence, we deem it prudent to

follow the United States Supreme Court’s limitation of

the ‘‘fundamental miscarriage of justice’’ exception to

actual innocence claims. See Schlup v. Delo, 513 U.S.

298, 322, 115 S. Ct. 851, 130 L. Ed. 2d 808 (1995). Second,

in light of our appellate courts’ consistent and broad

application of the cause and prejudice standard to all

trial level and appellate level procedural defaults; Crawford v. Commissioner of Correction, supra, 294 Conn.

186; with the exceptions of actual innocence claims and

Salamon claims, as identified previously in this opinion,

we are persuaded that procedural and substantive competency claims are properly subject to the procedural

default rule. This is particularly so in light of our

Supreme Court’s recent decision in Newland v. Commissioner of Correction, supra, 331 Conn. 548, in which

the court applied the cause and prejudice standard to

a procedurally defaulted claim of a complete deprivation of counsel during the petitioner’s criminal proceedings.

In sum, the petitioner’s due process claims grounded

in his alleged incompetence to stand trial and the

alleged failures by the state and by the trial court to

comply with § 54-56d were subject to procedural

default. Thus, the petitioner’s first claim fails.

II

Having concluded that the habeas court was correct
to apply the cause and prejudice standard of the procedural default rule to the petitioner’s due process claims,

we next turn to the petitioner’s alternative assertion

that the court erred in determining that he failed to

plead legally cognizable cause and prejudice to overcome the procedural defaults. We conclude that the

court properly determined that the petitioner’s claims

were procedurally defaulted because (1) the petitioner’s

reply was deficient and (2) the petitioner failed to demonstrate cause to excuse the procedural defaults.17

By way of additional procedural background, in his

reply to the respondent’s return, the petitioner alleged

the following with respect to whether he could demonstrate cause and prejudice to overcome the respondent’s affirmative defense of procedural default

directed to count one of the second petition: ‘‘[The]

petitioner can establish cause and prejudice to permit

review of the claim in count [one]. [The] petitioner

relies on facts alleged in [the second petition] to establish cause and prejudice. [The] petitioner is prejudiced

because he stands convicted of sexual assault in [the]

first degree and is currently serving ten years of special

parole.’’18 The petitioner set forth identical allegations

in reply to the respondent’s affirmative defense of procedural default with respect to count two of the second petition.

In its memorandum of decision dismissing the second

petition, in considering whether the petitioner’s due

process claims were procedurally defaulted, the court

determined that the petitioner failed to raise his due

process claims during the criminal trial proceedings

or on direct appeal from the judgment of conviction.

Relying on this court’s decision in Anderson v. Commissioner of Correction, 114 Conn. App. 778, 971 A.2d 766,

cert. denied, 293 Conn. 915, 979 A.2d 488 (2009), the

habeas court concluded that the petitioner’s reply

‘‘fail[ed] to allege any facts or assert any cause and

resulting prejudice to permit review of his claims. In

fact, he assert[ed] in the reply that he . . . ‘relies on

facts alleged in [the second petition] to establish cause

and prejudice,’ which is not permissible, nor sufficient

to overcome the respondent’s affirmative defense[s] of

procedural default. The court finds, therefore, that the

petitioner has failed to allege legally cognizable cause

and prejudice to rebut his procedural default[s].’’

A

We first address the issue of whether the habeas

court correctly ruled that the petitioner’s reliance on the

allegations contained in the second petition to establish

cause and prejudice was impermissible. The petitioner

contends that incorporating the allegations in the second petition into his reply in order to demonstrate cause

and prejudice was neither impermissible nor inappropriate. We conclude that the court did not err in

determining that the petitioner’s reply was deficient.
‘‘ ‘The petition [for a writ of habeas corpus] is in the

nature of a pleading, and the return is in the nature of

an answer.’ . . . ‘[T]he interpretation of pleadings is

always a question of law for the court . . . . Our

review of the [habeas] court’s interpretation of the

pleadings therefore is plenary. . . . [T]he modern

trend, which is followed in Connecticut, is to construe

pleadings broadly and realistically, rather than narrowly

and technically. . . . [T]he [petition] must be read in

its entirety in such a way as to give effect to the pleading

with reference to the general theory upon which it proceeded, and do substantial justice between the parties.

. . . As long as the pleadings provide sufficient notice

of the facts claimed and the issues to be tried and do

not surprise or prejudice the opposing party, we will

not conclude that the [petition] is insufficient to allow

recovery.’ . . .

‘‘ ‘When a respondent seeks to raise an affirmative

defense of procedural default, the rules of practice

require that he or she must file a return to the habeas

petition ‘‘alleg[ing] any facts in support of any claim

of procedural default . . . or any other claim that the

petitioner is not entitled to relief.’’ Practice Book § 23-

30 (b). ‘‘If the return alleges any defense or claim that

the petitioner is not entitled to relief, and such allegations are not put in dispute by the petition, the petitioner

shall file a reply.’’ Practice Book § 23-31 (a). ‘‘The reply

shall allege any facts and assert any cause and prejudice

claimed to permit review of any issue despite any

claimed procedural default.’’ [The reply shall not restate

the claims of the petition.] Practice Book § 23-31 (c).

. . .’

‘‘ ‘The appropriate standard for reviewability of [a

procedurally defaulted claim] . . . is the cause and

prejudice standard. Under this standard, the petitioner

must demonstrate good cause for his failure to raise a

claim at trial or on direct appeal and actual prejudice

resulting from the impropriety claimed in the habeas

petition. . . .

‘‘ ‘Once the respondent has raised the defense of procedural default in the return, the burden is on the petitioner to prove cause and prejudice.’ ’’ (Citations omitted.) Anderson v. Commissioner of Correction, supra,

114 Conn. App. 786–87.

In ruling that the petitioner’s reply was deficient,

the habeas court cited Anderson v. Commissioner of

Correction, supra, 114 Conn. App. 778, which we consider to be instructive. In Anderson, after the petitioner

had filed his first amended petition for a writ of habeas

corpus, the respondent filed a return asserting, inter

alia, that some of the petitioner’s claims were procedurally defaulted. Id., 782. Subsequently, the petitioner filed

his operative thirty-seven count petition for a writ of

habeas corpus. Id., 783.
In the operative petition, the petitioner alleged that

the claims raised therein ‘‘met and overcame both the

cause and prejudice standard and the respondent’s affirmative defense of procedural default, thereby permitting review of his claims. In short, the petitioner

appear[ed] to have claimed that because he stated in his

[operative] petition that he should not be procedurally

defaulted, that [conclusory] assertion, by itself, was

adequate to avoid being procedurally defaulted.’’ Id.,

785. The respondent then filed an amended return contending that the petitioner failed to comply with Practice Book § 23-31 (c) because he had not filed a reply

setting forth a factual basis to excuse the procedural

default. Id. Thereafter, the petitioner filed a reply, inter

alia, denying that he had procedurally defaulted on any

of his claims and asserting that he was relying on the

allegations in his operative petition and his reply to

overcome the respondent’s affirmative defense of procedural default. Id., 785–86. The habeas court denied

the operative petition, concluding in relevant part that

twenty-one of the thirty-seven counts were procedurally

defaulted because the petitioner’s reply to the respondent’s amended return did not comply with § 23-31 (c).

Id., 783–84, 786.

On appeal to this court, the petitioner claimed that

he alleged cause and prejudice in his operative petition

to overcome the respondent’s affirmative defense of

procedural default and that Practice Book § 23-31 (c)

prohibited him from repeating those allegations in his

reply. Id., 787–88. This court rejected that claim, stating:

‘‘The petitioner’s claim lacks merit. Practice Book § 23-

31 (c) explicitly requires a petitioner to assert facts and

any cause and prejudice that would permit review of an

issue despite a claim of procedural default. See Practice

Book § 23-31 (c). Although that provision states that

‘[t]he reply shall not restate the claims of the petition,’

it does not relieve the petitioner of his obligation with

respect to the contents of a reply. . . . The petitioner’s

reply fails to allege any facts or assert any cause and

resulting prejudice to permit review of his claims. He

simply relies on the allegations raised in his amended

petition, which are equally as vague and fail to articulate

with sufficient specificity what the court, the prosecutor or trial counsel did to prevent him from raising

those claims at trial or on direct appeal. We conclude,

therefore, that the court properly determined that the

petitioner failed to comply with Practice Book § 23-31

(c).’’ (Citations omitted; footnote omitted.) Anderson

v. Commissioner of Correction, supra, 114 Conn.

App. 788–89.19

Guided by our decision in Anderson, we conclude

that the court properly determined that the petitioner’s

reply was deficient. In his reply, the petitioner baldly

alleged that he could demonstrate cause to excuse the

procedural defaults solely on the basis of the allegations
set forth in the second petition. The petitioner did not

articulate with specificity any facts in the reply demonstrating cause to overcome the procedural defaults.

Accordingly, the petitioner’s reply did not satisfy the

requirements of Practice Book § 23-31 (c).

B

Even if we assume that the petitioner were permitted

to rely on the allegations set forth in the second petition

to demonstrate cause and prejudice to excuse the procedural defaults, we turn to whether the court correctly

determined that the petitioner’s allegations were insufficient to demonstrate cause and prejudice. The petitioner submits that his allegations that he was incompetent to stand trial establish cause to overcome the

procedural defaults. The respondent argues that the

petitioner failed to demonstrate a ‘‘factor external to

the defense’’ explaining the procedural defaults and,

thus, the petitioner did not establish cause. We agree

with the respondent.20

In Murray v. Carrier, supra, 477 U.S. 478, the United

States Supreme Court stated that ‘‘the existence of

cause for a procedural default must ordinarily turn on

whether the prisoner can show that some objective

factor external to the defense impeded counsel’s efforts

to comply with the [s]tate’s procedural rule. Without

attempting an exhaustive catalog of such objective

impediments to compliance with a procedural rule, we

note that a showing that the factual or legal basis for

a claim was not reasonably available to counsel . . .

or that some interference by officials . . . made compliance impracticable, would constitute cause under

this standard.’’ (Citations omitted; emphasis added;

internal quotation marks omitted.) Id., 488. We previously have applied this standard to analyze procedural

default claims. See, e.g., Gaskin v. Commissioner of

Correction, 183 Conn. App. 496, 515, 193 A.3d 625

(2018); Streater v. Commissioner of Correction, 143

Conn. App. 88, 99–100, 68 A.3d 155, cert. denied, 310

Conn. 903, 75 A.3d 34 (2013).

Whether alleged incompetence constitutes cause to

excuse a procedural default has not been addressed by

our appellate courts. Thus, we again turn to cases from

other jurisdictions for guidance. See State v. Favoccia,

supra, 306 Conn. 790–91.

In Harris v. McAdory, 334 F.3d 665, 668–69 (7th Cir.

2003), cert. denied, 541 U.S. 992, 124 S. Ct. 2022, 158

L. Ed. 2d 499 (2004), the United States Court of Appeals

for the Seventh Circuit concluded that a petitioner’s

alleged ‘‘borderline mental retardation’’ did not constitute cause excusing the procedural default of his ineffective assistance of counsel claim. The Seventh Circuit

observed that the focus of the cause analysis is on the

‘‘ ‘external’ nature of the impediment. Something that

comes from a source within the petitioner is unlikely
to qualify as an external impediment.’’ Id.; see also Gonzales v. Davis, supra, 924 F.3d 244 (alleged mental

incompetency not external to petitioner and, thus, did

not satisfy cause requirement); Johnson v. Wilson, 187

Fed. Appx. 455, 458 (6th Cir. 2006) (petitioner’s borderline mental impairment not ‘‘external’’ to defense and,

thus, did not constitute cause), cert. denied, 549 U.S.

1218, 127 S. Ct. 1273, 167 L. Ed. 2d 96 (2007); Hull v.

Freeman, 991 F.2d 86, 91 (3d Cir. 1993) (petitioner’s

illiteracy and ‘‘mental retardation’’ not ‘‘ ‘external’ ’’ to

defense and, thus, did not constitute cause).

We agree with the rationale set forth by the Seventh

Circuit in Harris and the other federal courts that have

determined that a petitioner’s mental impairment is not

an external impediment to the petitioner’s defense and,

thus, cannot serve as cause to overcome a procedural

default. Here, the petitioner’s alleged incompetency to

stand trial is an internal, rather than an external, factor.

Accordingly, the petitioner’s allegations of incompetency to stand trial were not sufficient to demonstrate

cause to excuse the procedural defaults of his due process claims and, thus, the habeas court did not err in

ruling that the petitioner’s claims were barred under

the procedural default rule.

The judgment is affirmed.

In this opinion the other judges concurred.

1 General Statutes § 54-56d provides in relevant part: ‘‘(a) Competency

requirement. Definition. A defendant shall not be tried, convicted or sentenced while the defendant is not competent. For the purposes of this

section, a defendant is not competent if the defendant is unable to understand

the proceedings against him or her or to assist in his or her own defense.

‘‘(b) Presumption of competency. A defendant is presumed to be competent. The burden of proving that the defendant is not competent by a preponderance of the evidence and the burden of going forward with the evidence

are on the party raising the issue. The burden of going forward with the

evidence shall be on the state if the court raises the issue. The court may

call its own witnesses and conduct its own inquiry.

‘‘(c) Request for examination. If, at any time during a criminal proceeding,

it appears that the defendant is not competent, counsel for the defendant

or for the state, or the court, on its own motion, may request an examination

to determine the defendant’s competency. . . .’’

2

‘‘In accordance with our policy of protecting the privacy interests of the

victims of sexual abuse and the crime of risk of injury to a child, we decline

to identify the victim or others through whom the victim’s identity may be

ascertained. See General Statutes § 54-86e.’’ State v. Saunders, 114 Conn.

App. 493, 495 n.3,969 A.2d 868, cert. denied, 292 Conn. 917, 973 A.2d 1277

(2009).

3 On direct appeal, the petitioner made three claims: ‘‘(1) the state adduced

insufficient evidence to sustain his conviction, (2) the trial court improperly

allowed the state to comment on missing witnesses during final argument

and (3) the state engaged in prosecutorial impropriety during final argument

and, therefore, deprived him of his due process right to a fair trial.’’ State

v. Saunders, supra, 114 Conn. App. 494–95.

4 Practice Book § 23-30 provides: ‘‘(a) The respondent shall file a return

to the petition setting forth the facts claimed to justify the detention and

attaching any commitment order upon which custody is based.

‘‘(b) The return shall respond to the allegations of the petition and shall

allege any facts in support of any claim of procedural default, abuse of the

writ, or any other claim that the petitioner is not entitled to relief.’’

5 The respondent asserted identical procedural default affirmative

defenses with respect to both counts of the second petition. The respondent

also asserted that (1) to the extent that the petitioner was raising an ineffec-
tive assistance of counsel claim in both counts of the second petition, those

claims had been raised in the first petition and resolved in the prior habeas

action, and the petitioner had presented no new facts or evidence unavailable

at the time of the first petition, and (2) the first count failed to state a claim

upon which relief can be granted. In its memorandum of decision dismissing

the second petition, the habeas court did not address those additional affirmative defenses, and neither party has raised any claims as to those affirmative defenses on appeal.

6 Practice Book § 23-31 provides: ‘‘(a) If the return alleges any defense or

claim that the petitioner is not entitled to relief, and such allegations are

not put in dispute by the petition, the petitioner shall file a reply.

‘‘(b) The reply shall admit or deny any allegations that the petitioner is

not entitled to relief.

‘‘(c) The reply shall allege any facts and assert any cause and prejudice

claimed to permit review of any issue despite any claimed procedural default.

The reply shall not restate the claims of the petition.’’

7 There is no dispute that the petitioner failed to raise the due process

claims in the second petition during his criminal trial proceedings or on

direct appeal from the judgment of conviction.

8 On September 20, 2017, the respondent filed a separate motion to dismiss

the second petition, which, with permission from the habeas court, subsequently was amended to be captioned as a motion for summary judgment.

Therein, the respondent asserted that (1) the due process claims raised in

both counts of the second petition were procedurally defaulted, and (2) the

due process claim raised in count one of the second petition failed to state

a claim upon which relief could be granted. On October 17, 2017, the court

denied the motion for summary judgment, concluding that there were genuine issues of material fact in dispute. That decision is not at issue on appeal.

9 The respondent’s motion to dismiss was dated October 20, 2017, but the

motion was not filed until October 25, 2017, when it was submitted to the

habeas court during the October 25, 2017 hearing. At the October 25, 2017

hearing, the respondent’s counsel represented that she had filed the motion

to dismiss on an unspecified date and that opposing counsel had received

a copy of the motion, but that the filing did not appear on the Judicial

Branch website and, apparently, the habeas court had never received the

motion. The respondent’s counsel then indicated that she had made a copy

of the motion to dismiss for the court and requested permission from the

court to proceed with argument on the motion, which the court allowed.

10 The habeas court issued a written memorandum of decision, which it

read into the record during the October 25, 2017 hearing.]

11 In his reply to the respondent’s return, the petitioner asserted that he

was not raising a claim of ineffective assistance of counsel in the second

petition. In its memorandum of decision, the habeas court determined that

‘‘[a] fair and liberal reading of the two counts in the [second] petition

supports the conclusion that the petitioner is alleging only a due process

violation, and that he is not alleging ineffective assistance of counsel . . . .’’

12 In the second petition, the petitioner also alleged that his trial counsel

failed to request that he undergo a competency examination. On appeal,

however, the petitioner focuses only on the alleged failures of the state and

the trial court to request a competency examination.

13 In Schlup v. Delo, 513 U.S. 298, 322, 115 S. Ct. 851, 130 L. Ed. 2d 808

(1995), the United States Supreme Court expressly tied the ‘‘fundamental

miscarriage of justice’’ exception to actual innocence claims.

14 ‘‘A procedural competency claim is based upon a trial court’s alleged

failure to hold a competency hearing, or an adequate competency hearing,

while a substantive competency claim is founded on the allegation that an

individual was tried and convicted while, in fact, incompetent.’’ (Internal

quotation marks omitted.) Lay v. Royal, 860 F.3d 1307, 1314 (10th Cir. 2017),

cert. denied, U.S. , 138 S. Ct. 1553, 200 L. Ed. 2d 752 (2018).

15 Although we agree with the Tenth and Eleventh Circuits’ view that

procedural competency claims are subject to procedural default; Lay v.

Royal, supra, 860 F.3d 1314–15; Battle v. United States, supra, 419 F.3d

1298; we agree with the Sixth and Ninth Circuits’ observation that those

courts’ adoption of a different rule for substantive competency claims is

premised on an expansive application of Pate and a conflation of the defenses

of waiver and procedural default. See Lay v. Royal, supra, 1318–19 (Briscoe,

J., concurring) (suggesting that Tenth Circuit reconsider precedent holding

that substantive competency claims cannot be procedurally defaulted, highlighting that other circuit courts of appeal have rejected reading Pate expansively in light of distinction between legal theories of waiver and proce-
dural default).

16 In addition to Wainwright, the Second Circuit in Silverstein cited its

decision in Forman v. Smith, 633 F.2d 634 (2d Cir. 1980), cert. denied, 450

U.S. 1001, 101 S. Ct. 1710, 68 L. Ed. 2d 204 (1981), in which it concluded,

on the basis of its ‘‘review of the origins of the cause and prejudice standard

and the reasons for its application in [Wainwright v.] Sykes [supra, 433 U.S.

72] to forfeitures of specific claims at trial,’’ concluded that the cause and

prejudice standard ‘‘also applies to forfeitures of specific claims on appeal.’’

Forman v. Smith, supra, 640.

17 We need not address whether the petitioner demonstrated prejudice

because the cause and prejudice standard is conjunctive. See Bowers v.

Commissioner of Correction, 33 Conn. App. 449, 452, 636 A.2d 388, cert.

denied, 228 Conn. 929, 640 A.2d 115 (1994). Moreover, we expressly leave

open the question of whether prejudice may be presumed, for purposes of

procedural default, where a petitioner has established cause for failing to

raise a procedural or substantive competency claim either at trial or on

direct appeal. See Newland v. Commissioner of Correction, supra, 331 Conn.

548 (concluding 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 [at his criminal trial], prejudice

is presumed’’).

18 The petitioner also alleged the following in reply to the respondent’s

contention that he had procedurally defaulted with respect to his due process

claim set forth in count one of the second petition: ‘‘[The] petitioner could

not have raised this claim at an earlier point in any legal proceeding concerning his prosecution and conviction without the assistance and advice of

counsel because the petitioner was and is significantly developmentally

disabled because of his significantly low IQ of 50.’’ He set forth an identical

allegation in reply to the respondent’s contention that he had procedurally

defaulted with respect to his due process claim set forth in count two. The

petitioner did not expressly assert in his reply that the foregoing allegations

constituted cause excusing his procedural defaults; rather, he contended

that he was relying on the facts alleged in the second petition to demonstrate cause.

19 In Anderson, this court also observed the following: ‘‘We note as well

that in the [operative] petition, although the petitioner makes the assertion

that he is not procedurally defaulted, he fails, completely, to set forth any

facts that would warrant a conclusion that he should not be procedurally

defaulted. Thus, we do not confront a case in which a pro se litigant has

set forth an adequate basis to elude procedural default, albeit in the wrong

format.’’ Anderson v. Commissioner of Correction, supra, 114 Conn. App.

788 n.4. In the present case, the petitioner, who was represented by counsel

before the habeas court, did not set forth any specific allegations regarding

cause and prejudice in the second petition.

20 The petitioner also claims that his allegations demonstrated prejudice.

We need not reach this claim. See footnote 17 of this opinion.