****************************************************** The ‘‘officially released’’ date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the ‘‘officially released’’ date appearing in the opinion. In no event will any such motions be accepted before the ‘‘officially released’’ date. All opinions are subjectto modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative. The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut LawJournal andbound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut.

******************************************************HINDS v

. COMMISSIONER OF CORRECTION—FIRST DISSENT ZARELLA, J., with whom EVELEIGH and ROBINSON, Js., join, dissenting. The majority concludes that the procedural default rule does not apply to challenges to kidnapping instructions in criminal actions that proceeded to final judgment before we changed
our interpretation of the kidnapping statutes in State

v. Salamon, 287 Conn. 509, 949 A.2d 1092 (2008), but, rather, should be replaced by a standard that provides retroactive reliefin the form ofanew trial for all collateral attacks on such judgments if the reviewing court determines that the omission of a Salamon instruction
was not harmless beyond areasonable doubt. I respectfully disagree. Neither party has questioned on appeal to this courtwhetherthe procedural defaultrule should be replaced by a different standard. Accordingly, the issue has not been properly raised or briefed. In addition, the majority relies on reasoning in Luurtsema v. Commissioner of Correction, 299 Conn. 740, 12 A.3d 817 (2011), that was supported by only a plurality of this court and did not consider procedural default as
a potential bar to habeas claims based on the omission ofaSalamoninstruction.Asaconsequence,Luurtsema does not compel the conclusion that the procedural default rule should not be applied in these cases, as the majority claims. Furthermore, the majority’s decision to abandon the procedural default rule and adopt a different standard injects unnecessary incongruity into
ourlaw and undermines legitimate and settled expectations regarding the ability of petitioners to raise new claims that have not been raised at trial or in the Appellate Court. Finally, insofar as I deem the procedural default rule to be the proper legal standard for habeas review ofSalamon claims, the petitioner, WalterHinds, did not establish good cause for failing to seek a Salamon instruction at trial or for failing to raise the issue of its omission on direct appeal. For the reasons discussedinJustice Eveleigh’s dissentingopinion, thepetitioner also did not establish that he suffered actual prejudice under the facts and circumstances of this
case. I would thus conclude that the Appellate Court incorrectly determined that the petitioner satisfied the two-pronged test of good cause and actual prejudice required to overcome procedural default.
I
I begin with the majority’s sua sponte decision to abandon the procedural default rule on the basis ofthis court’s reasoning in Luurtsema and to replace it with
an entirelynewstandardthatwouldrequire areviewing court to determine whether the omission ofaSalamon instruction was not harmless beyond a reasonable doubt. As previously noted, the parties have not raised the issue of whether the rule should be replaced intheirseparate appealstothis court. Bothpartiesinstead address the merits of the Appellate Court’s conclusion thatthepetitionerestablishedthegoodcauseandactual prejudice required under the rule to allow habeas review ofhisjury instruction claim. In fact, the respondent, the Commissioner of Correction, citing Johnson

v. CommissionerofCorrection, 218 Conn. 403, 409, 589 A.2d 1214 (1991) (adopting cause and prejudice as ‘‘the appropriate standard for reviewability in a habeas corpus proceeding of constitutional claims not adequately preserved at trial because ofprocedural default’’), specifically emphasizes in his briefthat he is not challenging the Appellate Court’s consideration of the procedural default rule in its review of the petitioner’s claim, but only the manner in which the court applied the rule. The majority also acknowledges that the respondentis contending onlythat ‘‘theAppellate Court did not correctly apply the legal standard for assessing
cause and prejudice to overcome procedural default.’’ Although the petitioner purportedly makes a brief, secondary argument that procedural default is not a bar to habeas reviewpursuantto the reasoning inLuurtsema, even he never goes so far as to suggest that the procedural default rule should be replaced by an entirely different standard.1 It is thus improper for the majority to consider the issue in the present case without the input of the parties who appealed to this court.2 See, e.g., Sabrowski v. Sabrowski, 282 Conn. 556, 560, 923 A.2d 686 (2007) (reviewing court limited to resolving claims raised by parties); Ghant v. Commissioner of Correction, 255 Conn. 1, 17, 761 A.2d 740 (2000) (‘‘[i]t is not appropriate to engage in a level of review that is not requested’’ [internal quotation marks omitted]).
II Notwithstanding this significant threshold problem,
even if the parties had raised and briefed the issue, I do not agree with the majority’s reliance on the reasoning in Luurtsema to abandon application ofthe procedural default rule when petitioners in habeas cases bring Salamon claims. The majority concludes that Luurtsema ‘‘effectively resolvedthe procedural default question such that the doctrine does not apply to [the petitioner’s] Salamon claim.’’ In the majority’s view, Luurtsema determined, as a matter of state common law, that policy considerations weigh in favor of retroactive application of Salamon to collateral attacks on judgments rendered final before Salamon was decided;
see Luurtsema v. Commissioner ofCorrection, supra, 299 Conn. 766–67 (plurality opinion). Accordingly, application ofthe procedural default rule to protect the finality of judgments would be inconsistent with the reasoning in Luurtsema that ‘‘the interests of finality must give way to the demands of liberty and a proper respect for the intent ofthe legislative branch.’’ Id., 766 (plurality opinion). In further support of this conclusion, the majority adds thatLuurtsema failed to explic-itly consider procedural default as a limitation on its decision. In my view, however, the majority misunderstandsLuurtsema and its potential effect, ifany, onthe disposition of Salamon claims in habeas proceedings.
I begin by noting that the analysis in Luurtsema on which the majority relies was endorsed by a plurality ofthree panel members, with one other member ofthe panel concurring only in the judgment and two other members concurring only in the result. As a consequence, the plurality’s analysis in Luurtsema does not govern in the present case because it does not reflect the decision of a majority of the panel members.
Tobetterunderstandtheprecedentialvalue ofLuurtsema, Ibrieflyreviewthe opinions inthat case. Initially, the habeas court reserved two questions for resolution by this court: ‘‘(1) whether [this court’s decisions in] Salamon and [State v. Sanseverino, 287 Conn. 608, 949 A.2d 1156 (2008), overruled in part byState v. DeJesus, 288 Conn. 418, 953 A.2d 45 (2008), and modified in part after reconsideration en banc by State v. Sanseverino, 291 Conn. 574, 969 A.2d 710 (2009)] apply retroactively in habeas corpus proceedings; and (2) whether those
casesapplyinthepetitioner’s caseinparticular.’’Luurtsema v. CommissionerofCorrection, supra, 299 Conn. 743 (plurality opinion). All six members of the panel in Luurtsema agreed that both questions should be answered in the affirmative. Different panel members, however, relied on different rationales in reaching that conclusion.
With respect to the first question, a plurality ofthree justices optednotto characterize theSalamon decision
as a clarification of the kidnapping statute that should be given full retroactive effect under a federal due process analysis. Id., 751. The plurality instead chose to decide the retroactivity question under state common law, and, therefore, adopted ‘‘a general presumption in favor of full retroactivity for judicial decisions that
narrow the scope ofliability of a criminal statute. That presumption, however, would not necessarily require thatreliefbegrantedincaseswhere continuedincarcerationwouldnotrepresentagrossmiscarriage ofjustice, such as where it is clear that the legislature did intend to criminalize the conduct at issue, ifperhaps notunder the precise label charged. In situations where the criminal justice system has relied on a prior interpretation ofthe lawsothatprovidingretroactive reliefwouldgive the petitioner an undeserved windfall, the traditional rationales underlying the writ of habeas corpus [also] may not favor full retroactivity.’’ Id., 764. The plurality emphasizedthat, ‘‘intheSalamon context inparticular, any exceptions to the general presumption in favor of full retroactivity are likely to be few and far between.’’ Id. The plurality then rejected each of the state’s five policy arguments for adopting a per se rule against retroactive relief or for denying reliefto the petitioner,PeterLuurtsema. Id., 765–72. Withrespecttothe second reserved question, the plurality determined that this court’sinterpretationofthe kidnappingstatutesinSalamon should apply retroactively to Luurtsema because his case did not fall within any exception to the rule discussedtherein andthere appearedto be no evidence that Luurtsema intended to restrain the victim more than was necessary to conduct the underlying sexual assault. Id., 773–74.
In her concurrence, which no other justice joined, Justice Katz concluded, unlike the plurality, that the Salamon decision represented aclarification ofthe kidnapping statute that should be given full retroactive effect under federal due process law. See id., 775. Although she agreed with the plurality’s explanation as to whythe court should reject the state’s general policy arguments for adopting a per se rule against retroactivity and the state’s arguments against affording reliefto Luurtsema; id., 791; she disagreed with the plurality’s decisiontopermitexceptionstothe rule ofretroactivity in order to, as the plurality explained, ‘‘guard against certain fringe cases

. . . .’’ Id. She explained that the pluralityhad crafted ‘‘anovel rule ofretroactivityunder
our common-law authority,’’ and that, ‘‘even if it were necessary to decide [the] case under our common-law authority, we should adopt a per se rule that decisions narrowing the interpretation of criminal statutes apply retroactively.’’ Id., 775. Justice Katz further criticized theplurality’sapproachas ‘‘unclear’’ anddiscussedvarious hypothetical situations in which questions might arise regarding the retroactivity ofdecisions narrowing the interpretation of criminal statutes. Id., 793. Justice Katz thus concurred only in the judgment. Id., 797.
In Justice Palmer’s separate concurrence, he expressed ‘‘agree[ment] withmuchofthepluralityopinion and concur[red] in the result

. . . .’’ Id. He also explained, however, that he did not believe the court should decide the question of whether to adopt a per
se rule in favor of full retroactivity under our common law, observingthatthe court ‘‘neednotresolvethe issue to decide the

. . . case because, as the plurality also conclude[d], [Luurtsemawas] entitledto full retroactivity regardless ofwhether we adopt[ed] such a rule.’’ Id.
Justice McLachlan also issued a separate opinion in which he ‘‘reluctantly’’ concurred in the result. Id., 798. He explained that he would have ‘‘prefer[red] to follow
our long-standing principle offinality ofjudgments and would deny [Luurtsema] the reliefthat he [sought], [but he was] compelled to follow the precedent established by Salamon

. . . .’’ Id., 799.
This court has recognizedthat, ‘‘[w]hen afragmented [c]ourtdecides acase andno singlerationale explaining the result enjoys the assent of [a majority ofthe] [j]ustices, the holding of the [c]ourt may be viewed as the position taken by those [m]embers who concurred inthejudgments on the narrowest grounds

. . . .’’ (Internal quotation marks omitted.) State v. Ross, 272 Conn. 577, 604 n.13, 863 A.2d 654 (2005), quoting Marks v. United States, 430 U.S. 188, 193, 97 S. Ct. 990, 51 L. Ed. 2d 260 (1977). InLuurtsema, Justice Katz was the only concurring panel member who explicitly adopted any part of the plurality’s reasoning. As previously discussed, she agreed with the plurality’s rationale for rejecting the state’s general arguments for a per se rule against retroactivity; Luurtsema v. Commissioner of Correction, supra, 299 Conn. 791; but she did not agree with the plurality’s ‘‘novel rule of retroactivity under
our common-law authority

. . . .’’ Id., 775. She instead argued for a per se rule in favor of full retroactivity under a federal due process analysis. See id., 791. Justice Palmeragreedwith ‘‘muchofthepluralityopinion’’; id., 797; but did not distinguish those parts with which he agreed from those with which he disagreed. See id., 797–98. Justice McLachlan did not agree with any part of the plurality’s reasoning but merely stated that he felt ‘‘compelled to follow the precedent established by Salamon

. . . .’’ Id., 799. Accordingly, it does not appear that any ofthe three concurringjustices explicitly agreed with the plurality’s decision to adopt a ‘‘general presumption in favor of full retroactivity’’ or with its description of the scope of, or exceptions to, this general presumption. Id., 764. I thus believe that the majority’s assertion that the plurality’s reasoning in Luurtsema ‘‘compels the conclusion that challenges to kidnapping instructions in criminal proceedings renderedfinalbeforeSalamonarenotsubjecttotheprocedural default rule’’; (emphasis added); is legally unsupportable.3 The only parts of the plurality opinion that appear to have any precedential value are the court’s affirmative answers to the reserved questions of whether Salamon and Sanseverino apply retroactively in habeas corpus proceedings and to Luurtsema, in particular, because those are the narrowest grounds
on which a majority of the panel clearly agreed.
In addition to the fact that the plurality’s reasoning in Luurtsema has no precedential value, procedural defaultwas notaddressedbyanyofthepanelmembers, most likely because Luurtsema’s counsel had the foresight to ask the trial court for a Salamon-type instruction eight years before Salamon was decided. Id., 774 (plurality opinion). Accordingly, in Luurtsema, the respondent did not raise a procedural default defense, and that case provides no guidance as to the applicability ofthe procedural default rule when apetitionerwho has not requested a Salamon instruction at trial or raised the issue on direct appeal makes a Salamon claim in a subsequent habeas proceeding. Moreover, I am not the first to note the lack of guidance inLuurtsema as to the applicability ofprocedural default to a Salamon claim. In Smith v. Warden, Superior Court, judicial district ofTolland, Docket No. TSR-CV-08-4002747-S (September 13, 2011), a habeas case decided only eight months following the publication of Luurtsema, the court observed that the issue of procedural default was ‘‘absent and therefore never discussed by the Supreme Court’’ in Luurtsema and that this court ‘‘never had occasion in [Luurtsema] to consider the effect of procedural default with respect to the retroactive application of Salamon.’’ The court in Smith thus considered the respondent’s affirmative defense of procedural default in that case and determinedthatthepetitioner, Lawrence R. Smith, hadestablished the good cause and actual prejudice required to
overcome the default. Id. Thereafter, the respondent routinely raised the affirmative defense of procedural default when habeas petitioners sought a new trial because of the trial court’s omission of a Salamon instruction, andpetitionersneverchallengedthepropriety of the defense, opting instead to argue that their claims had not been barred by the procedural default rule. See Hinds v. Warden, Superior Court, judicial district of Tolland, Docket No. TSR-CV-09-4003234-S (August 21, 2012), aff’d sub nom. Hinds v. Commissioner ofCorrection, 151 Conn. App. 837, 97 A.3d 986, cert. granted, 314 Conn. 928, 928–29, 101 A.3d 273 (2014); Eppsv. Warden, Superior Court,judicial district of Tolland, Docket No. TSR-CV-06-4001167-S (November 7, 2012), aff’d sub nom. Epps v. Commissioner of Correction, 153 Conn. App. 729, 104 A.3d 760 (2014); Barile v. Warden, Superior Court, judicial district of Tolland, Docket No. TSR-CV-10-4003798-S (August 13, 2013); Farmer v. Warden, Superior Court, judicial district ofTolland, Docket No. TSR-CV-12-4004510-S (May 8, 2014); Wilcox v. Warden, Superior Court, judicial district of Tolland, Docket No. TSR-CV-11-4004205-S (September 17, 2014), rev’d sub nom. Wilcox v. Commissioner ofCorrection, 162 Conn. App. 730, 129 A.3d 796 (2016); Davis v. Warden, Superior Court, judicial district of Tolland, Docket No. TSR-CV-11-4004289-S (October 6, 2014); Robles v. Warden, Superior Court, judicial district of Tolland, Docket No. TSR-CV-12- 4004528-S (December 16, 2014); Nogueira v. Warden, Superior Court, judicial district of Tolland, Docket No. TSR-CV-14-4006033-S (June 10, 2015). Indeed, in one recent case in which the habeas court noted that the respondent had not raised procedural default as an affirmative defense, the court suggested that such a defense would have been appropriate. See Betancourt

v. Warden, Superior Court, judicial district of Tolland, Docket No. TSR-CV-12-4004762-S (January 12, 2016) (‘‘[The] courtis ofthe opinionthatthis claimis susceptible to the special defense ofprocedural defaultifraised by the respondent. However, this was not the case.’’). Similarly, when three of the foregoing habeas cases, including the present case, were appealed to the Appellate Court, that court considered the habeas court’s ruling with respect to the respondent’s procedural default defense in each case without hesitation. SeeWilcoxv. CommissionerofCorrection, supra, 739, 746, 749–50 (reversingjudgment ofhabeas court, which had concluded that petitioner’s claim was not procedurally defaulted, on ground that petitioner had failed to meet heavy burden of demonstrating actual prejudice due to absence of Salamon instruction); Epps v. Commissioner of Correction, supra, 736, 738, 742 (affirming judgment of habeas court, which had concluded that petitioner’s claim was not procedurally defaulted, on ground that petitioner had established good cause and actual prejudice due to absence of Salamon instruction); Hinds v. Commissioner of Correction, supra, 855–60 (affirming judgment of habeas court granting habeas petition in part and concluding that petitioner had demonstrated good cause and actual prejudice due to absence of Salamon instruction). It thus has been universally understood by multiple petitioners, the respondent, everyhabeas court that has considered the issue, and the Appellate Court following Luurtsema that procedural default is an appropriate defense to a Salamon claim.
III
Because procedural default was never addressed in Luurtsema, it was left for future courts to decide how the retroactivity decision should be applied when habeas petitioners seek new trials because ofthe omission of a Salamon instruction. I freely acknowledge at the outset that, in my view, this court’s decisions in Salamon and Sanseverino should not be applied retroactively. Thus, if I had been a panel member in Luurtsema, Iwouldhaveansweredthefirstreservedquestion in the negative and the second reserved question by limiting the application of Salamon and Sanseverino to the petitioner in Luurtsema

. In fact, I strongly favor reconsideration of the decision in Luurtsema for the five policy reasons rejected by the plurality and Justice Katz intheirrespective opinions. These reasons include ‘‘(1) the fact that law enforcement relied on the old interpretation of the kidnapping statutes while trying the petitioner; (2) the fact that the retroactive application of Salamon has no deterrent value or remedial purpose; (3) the fear that our courts will be ‘flooded’ with habeas petitions from other inmates convicted under [the kidnapping statutes]; (4) the difficulty of retrying such cases where significant time has elapsed since conviction; and

. . . (5) the concern that victims will be retraumatized by again having to testify and endure another round ofjudicial proceedings.’’ Luurtsema v. CommissionerofCorrection, supra, 299 Conn. 765 (plurality opinion). Of particular concern to me is that retroactive application ofSalamon and Sanseverino will have no deterrent value, will make the retrial of cases that originally were tried up to three decades ago difficult to replicate, and may force victims who have recovered in part from the original crime and the first trial to reexperience their former pain and suf-fering.
Absentreconsiderationbythis courtoftheretroactivity issue, I would limit retroactive application of Salamon and Sanseverino to cases tried before Luurtsema in which a defendant, unlike the petitioner in the present case, either sought a Salamon-type instruction at trial, as counsel did in Luurtsema’s case; Luurtsema

v. Commissioner of Correction, supra, 299 Conn. 774 (plurality opinion); or raised a claim on direct appeal relating to the omission of such an instruction, as the defendant did in State v. Hampton, 293 Conn. 435, 455, 978 A.2d 1089 (2009), and Luurtsema also did in his direct appeal. See State v. Luurtsema, 262 Conn. 179, 200, 811 A.2d 223 (2002). I take this position because
a criminal defendant who is convicted under the law in effect at the time he committed the crime cannot be said to suffer any harm from this limited application of Salamon and Sanseverino, having been put on notice ofthe consequences ofhis conduct. To the extent petitioners raiseSalamon claims forthe firsttime inhabeas proceedings, however, I believe it is absolutely necessarytoapplytheproceduraldefaultrulewhendetermining whether these claims are reviewable out ofrespect for the consistency of our procedural default law and for the principle of the finality ofjudgments.
In rejecting a per se rule against retroactivity, the court in Luurtsema left open several potential options for reviewing such claims, there being no majority in favor of any particular approach. Among these options
are (1) a per se rule in favor of full retroactivity, as advocated by Justice Katz; id., 791; (2) a general presumption in favor of full retroactivity subject to a few limited exceptions, as advocated by the plurality; see id., 764; or (3) an approach that allows for the limited retroactivity of Salamon and Sanseverino under an appropriate standard of review.
The majority in the present case appears to reject the first two options in favor of the third option of limited retroactivity, but under a newly created and simplified standard that requires a reviewing court to consider whether omission ofthe instruction was ‘‘not harmless beyond a reasonable doubt.’’ Like the majority, I also reject the first two options. I nonetheless disagree with the majority’s decision to create an entirelynewstandardbecauseitrepresentsasignificant and unjustifiable departure from Connecticut’s well established procedural default rule, which is the standard that is generally applied by reviewing courts in these circumstances.
The procedural default rule provides that the petitioner in a habeas proceeding ‘‘must demonstrate good
cause for his failure to raise a claim at trial or on direct appealandactualprejudiceresultingfromtheimproprietyclaimedinthehabeaspetition.’’ (Emphasisomitted.) Johnsonv. CommissionerofCorrection, 285 Conn. 556,567, 941 A.2d 248 (2008). Thus, to the extentapetitioner doesnotseekorobjecttothe lackofaSalamoninstruction at trial or raise the issue on direct appeal, his claim is subject to procedural default unless he is able to demonstrate good cause and actual prejudice for his failure to do so. See, e.g., id. We have stated that ‘‘[t]he existence of cause for a procedural default must ordinarily turn on whether the [petitioner] can show that
some objective factor external to the defense impeded counsel’s effortsto complywiththe [s]tate’sprocedural rule.’’ (Internal quotation marks omitted.) Id., 568. For example, ‘‘a showing that the factual or legal basis for
a claim was not reasonably available to counsel

. . . or

. . . some interference by officials

. . . would constitute cause under this standard.’’ (Internal quotation marks omitted.) Id. With respect to actual prejudice, a petitioner must show ‘‘not merely that the errors at

. . . trial created a possibility of prejudice, but that theyworked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.’’ (Emphasis omitted; internal quotation marks omitted.) Murray v. Carrier, 477 U.S. 478, 494, 106 S. Ct. 2639, 91 L. Ed. 2d 397 (1986). Although it may be difficult for habeas petitioners who raise Salamon claims to establish the good cause and actual prejudice required to overcome procedural default, it is not impossible. Moreover, application of the procedural default rule when reviewing Salamon claims in habeas proceedings is consistent with our traditional respect for the finality ofjudgments and the purpose and policies underlying the Great Writ. As the state notes, the writ ofhabeas corpus is intended as ‘‘a special and extraordinary writ.’’ McClain v. Robinson, 189 Conn. 663, 668, 457 A.2d 1072 (1983). It is thus availableto address ‘‘fundamentalunfairness ormiscarriage ofjustice’’; Bunkley v. Commissioner ofCorrection, 222 Conn. 444, 461, 610 A.2d 598 (1992), overruled in part on other grounds by Small v. Commissioner of Correction, 286 Conn. 707, 946 A.2d 1203, cert. denied sub nom. Small v. Lantz, 555 U.S. 975, 129 S. Ct. 481, 172 L. Ed. 2d 336 (2008); and ‘‘not merely an error which might entitle [the petitioner] to reliefon appeal.’’ (Internal quotation marks omitted.) Safford v. Warden, 223 Conn. 180, 190, 612 A.2d 1161 (1992). The habeas petitioner ‘‘does not come before the [c]ourt as one who is innocent, but on the contrary as one who has been convicted by due process of law

. . . .’’ (Internal quotation marks omitted.) Summerville v. Warden, 229 Conn. 397, 423, 641 A.2d 1356 (1994). Accordingly, the petitioner ‘‘bears a heavy burden of proof’’ when attacking a presumptively valid conviction. Lubesky v. Bronson, 213 Conn. 97, 110, 566 A.2d 688 (1989). Lastly, because this court has recognized that a ‘‘habeas

. . . petitionmaynotbe employedas asubstitute foradirect appeal’’; Summerville v. Warden, supra, 429; it makes
no sense to abandon the cause and prejudice standardin favor ofa harmless error standard generally applicable to a direct appeal in the relatively narrow category of cases involving Salamon claims.
I fully appreciate the liberty interests of petitioners who believe that they have been unfairly convicted and incarceratedforcrimestheydidnotcommit. Theprocedural default rule, however, provides an appropriate mechanism for reviewing Salamon claims because it does not forbid petitioners from bringing these claims. It simply requires petitioners to establish good cause and actual prejudice for failing to raise the claims at trial or on direct appeal. Furthermore, the cause and prejudice standard has been applied consistently in habeas proceedings without any apparent problem for
more than two and one-half decades. See Crawford v. Commissioner of Correction, 294 Conn. 165, 186, 982 A.2d 620 (2009) (‘‘[s]ince Jackson [v. Commissioner of Correction, 227 Conn. 124, 629 A.2d 413 (1993)], this court consistently and broadly has applied the cause and prejudice standard to trial level and appellate level procedural defaults in habeas corpus petitions’’). Thus, abandoning that standard in favor of a different standard for the specific purpose of deciding Salamon claims would create an incongruity in our law that would encourage other petitioners to seek exceptions to, and potentially undermine, the procedural default rule.
The majority’s onlyjustifications for abandoning the rule are derived from reasoning in Luurtsema that did not reflect the views of a majority of this court. The first justification is that ‘‘application of the procedural defaultbartoprotectfinalityofjudgments seemsinconsistentwiththereasoningin [Luurtsema] that‘theinterests offinality must give way to the demands ofliberty and a proper respect for the intent of the legislative branch.’ ’’ Textaccompanyingfootnote 8 ofthemajority opinion, quoting Luurtsema v. Commissioner of Correction, supra, 299 Conn. 766 (plurality opinion). As previously discussed, however, the court inLuurtsema did not adopt a per se rule in favor offull retroactivity. The court merely held that Salamon and Sanseverino should apply retroactively in answering ‘‘yes’’ to both reserved questions because it was unable to achieve a majority consensus on the scope ofits holding. Insofar
as there was any agreement whatsoever on the issue,
a plurality of three justices concluded that, although there should be a general presumption in favor of full retroactivity, ‘‘there are various situations in which to deny retroactive relief may be neither arbitrary nor unjust’’; Luurtsema v. Commissioner of Correction, supra, 299 Conn. 760; and, accordingly, the court should grant only limited exceptions to this general presumption. See id., 764.
The majority next observes that Salamon claims should not be subject to procedural default in habeasproceedings because Luurtsema did not cite procedural default as a limitation on its retroactivity ruling, which the majority claims would have been a ‘‘natural response to the state’s floodgates argument

. . . .’’ This justification is equally unpersuasive. The failure of the court in Luurtsema to consider the procedural default bar indicates nothing about its views on the subject because procedural default was not an issue in that case, Luurtsema’s counsel having sought a Salamon type instruction at Luurtsema’s trial. There is thus
no supportforthe majority’s speculationthattheplurality’s failure to discuss procedural default inLuurtsema meantthatit didnotviewprocedural defaultas alimitation on a habeas court’s review of a Salamon claim. If that had been the case, the plurality surely would have expressed its view directly.
The majority’s final justification for abandoning the procedural default rule is that ‘‘[t]he court [in Luurtsema] cited the harmless error standard for direct appeal

. . . as the limiting mechanism for colorable but ultimately nonmeritorious claims.’’ The plurality in Luurtsema, however, was not discussing the issue of whether harmless error or the procedural default rule shouldbeappliedtoSalamonclaimsinhabeasproceedings when it made a passing reference to the harmless
errorstandard. Rather, thepluralitywas consideringthe state’s policy argument that ‘‘a finding of retroactivity would flood the court system with habeas petitioners seeking to overturn kidnapping convictions

. . . .’’ (Internalquotationmarks omitted.)Luurtsemav

. Commissioner of Correction, supra, 299 Conn. 769. In responding to that argument, the plurality cited State

v. Hampton, supra, 293 Conn. 463–64, in which the defendant had raised a Salamon claim in his direct appeal, to make the point that there was no evidence thatthe courtwouldbefloodedwithpetitioners seeking
new trials, but, instead, ‘‘courts [would] be able to dispose summarily of many cases where it is sufficiently clear from the evidence presented at trial that the petitioner was guilty of kidnapping, as properly defined, [and] that any error arising from a failure to instruct the jury in accordance with the rule in Salamon was harmless.’’ Luurtsema v. Commissioner ofCorrection, supra, 769–70. As a consequence, the plurality’s reference to harmless error in this completely different context cannot be taken as its considered view regarding the standard that should be applied in reviewing Salamon claims in habeas proceedings.
IV Applying the procedural default rule in the present case, I would conclude that the petitioner has not demonstrated good cause for or actual prejudice from his failure to seek aSalamon-type instruction at trial or to raise the issue on direct appeal. This court has stated that ‘‘[t]he cause and prejudice test is designed to pre-vent full review of issues in habeas

. . . proceedings that counsel did not raise at trial or on appeal for reasons of tactics, inadvertence or ignorance

. . . .’’ (Internal quotation marks omitted.) Johnson v. Commissioner of Correction, supra, 285 Conn. 567–68. In addition, ‘‘[b]ecause [c]ause and prejudice must be established conjunctively, [the court] may dispose of [the procedurally defaulted] claim ifthe petitioner fails to meet either prong.’’ (Internal quotation marks omitted.) Thorpe v. Commissioner ofCorrection, 73 Conn. App. 773, 780, 809 A.2d 1126 (2002).
With respect to the first prong of the test, the petitioner alleged in his habeas pleadings that his claim of an improper jury instruction was not procedurally defaulted because ‘‘futility provided him good cause for not previously raising the claim’’ and because he ‘‘lacked a reasonable basis for raising the

. . . claim at either the trial or appellate level based on a long line of consistently adverse case law, beginning with State

v. Chetcuti, 173 Conn. 165 [377 A.2d 263] (1977), which adopted the definition ofkidnapping that the petitioner
was convicted under.’’ The petitioner also alleged that his ‘‘criminal trial and direct appeal were both decided before the Salamon decision in 2008, and he had no
reason to believe that a challenge to the kidnapping instruction held any merit before that [decision].’’ Although the Appellate Court agreed with this reasoning; see Hinds v. Commissioner of Correction, supra, 151 Conn. App. 854–55; I do not. Aspreviously explained, ‘‘[t]he existence ofcause for
a procedural default must ordinarily turn on whether the [petitioner] can show that some objective factor external to the defense impeded counsel’s efforts to comply with the [s]tate’s procedural rule.’’ (Internal quotation marks omitted.) Johnson v. Commissioner ofCorrection, supra, 285 Conn. 568. Thus, for example, ‘‘a showing that the factual or legal basis for a claim
was not reasonably available to counsel

. . . or

. . . some interference by officials

. . . would constitute
cause under this standard.’’ (Internal quotation marks omitted.) Id.
Mindful ofthese principles, I do not believe that futilityisapersuasiveargumentbecause Connecticut’sdecisional law interpreting the kidnapping statutes was not settled at the time of the petitioner’s trial in 2002 and his direct appeal in 2004. In Salamon, this court observed that it ‘‘never [had] undertaken an extensive analysis of whether our kidnapping statutes warrant thebroad constructionthat [the courthad] giventhem.’’ State v. Salamon, supra, 287 Conn. 524. Justice Katz likewise explained in her concurring opinion in Luurtsema that ‘‘Salamon rested on grounds that never had been considered by this court. Not only was it the first time that this court examined the intent element ofthe kidnapping statutes andthe firsttime thatwe examinedthe circumstances surroundingthe statutes’ enactment, but it also was the first time that this court considered the meaning of the statute en banc.

. . . Our reexamination was prompted in part by an issue expressly left open in our prior decisions regarding whether the existing interpretation could lead to bizarre, and therefore legislatively unintended, results.’’ (Citation omitted.)Luurtsemav. CommissionerofCorrection, supra, 299 Conn. 786 (

Katz, J., concurring). Accordingly, there
was no reason forthe petitionerto believe that itwould have been futile to raise such a claim.
There also was a reasonable basis at the time of the petitioner’strialanddirectappealonwhichto challenge this court’s interpretation of the kidnapping statutes because, even though the court had supported a broad interpretation ofthe statutes on a number ofoccasions
over a lengthy period of time, defendants continued to challenge it, and at least two members of the court expressed contrary views in concurring and dissenting opinions issued around the time ofthe petitioner’s trial and direct appeal in 2002 and 2004, respectively. See State v. Luurtsema, supra, 262 Conn. 208–209, 211 ( Katz, J., dissenting in part) (noting that, although kidnapping did not merge with sexual assault under Connecticut law, court had indicated that ‘‘there may be factual situations in which charging a defendant with kidnapping based upon the most minuscule movement would result in an absurd and unconscionable result,’’ such as when kidnapping is ‘‘integral or incidental to the crime ofrape’’ [internal quotation marks omitted]); State v. Niemeyer, 258 Conn. 510, 528, 529, 782 A.2d 658 (2001) (

McDonald, C. J., concurring) (expressing view that kidnapping statute should apply only ‘‘to true kidnapping situations and not

. . . to crimes

. . . in which some confinement or asportation occurs as a subsidiary incident,’’ and that evidence of restraint by defendantinthat case supportedkidnapping conviction because ‘‘[t]he jury could find that restraint was not merely incidental to the assault’’ [internal quotation marks omitted]); but see, e.g., State v. Vass, 191 Conn. 604, 614, 469 A.2d 767 (1983) (rejecting defendant’s claim that court improperly denied request to charge jurythathe couldnotbe convicted on kidnapping count ifjury found kidnapping was ‘‘ ‘integral or incidental’ ’’ to crime of rape because ‘‘[t]hat [was] not the law in this state’’); State v. Briggs, 179 Conn. 328, 338, 426 A.2d 298 (1979) (rejecting defendant’s request to adopt ‘‘merger doctrine’’ that would preclude prosecution for kidnapping that is ‘‘ ‘merely incidental’ ’’ to sexual assault), cert. denied, 447 U.S. 912, 100 S. Ct. 3000, 64 L. Ed. 2d 862 (1980); Statev. Chetcuti, supra, 173 Conn. 168–69 (rejecting challenge to kidnapping statutes as unconstitutional on groundthey canbe appliedto other criminal activity to which kidnapping is only incidental and subsidiary).4
Ratherthanviewthishistoryofcontinuingchallengesto the court’s interpretation of the kidnapping statutes
as a reason to conclude that there was no reasonable basis to raise a Salamon claim or that such a claim would be futile, the petitioner should have understood the dissenting opinion of Justice Katz in 2002 and the concurring opinion of ChiefJustice McDonald in 2001, in which they questioned this court’s broad interpretation ofthe kidnapping statutes, as an invitation to raise the claim again in the hope that the court would revisit theissueandalteritsinterpretation, asitdidinSalamon only a few years later. As this court has previously stated, ‘‘[t]he mere fact that counsel failed to recognize the factual or legal basis for a claim, or failed to raise the claim despite recognizing it, does not constitute
cause for a procedural default.’’ (Internal quotation marks omitted.) Johnson v. Commissioner of Correction, supra, 218 Conn. 422, quoting Murray v. Carrier, supra, 477 U.S. 486–87. A habeas petitioner also ‘‘may not bypass the state courts simply because he thinks they will be unsympathetic to the claim. Even a state courtthat has previously rejected a constitutional argument may decide, upon reflection, that the contention is valid.’’ (Internal quotation marks omitted.) Johnson

v. Commissioner ofCorrection, supra, 218 Conn. 422. I would therefore conclude that the petitioner did not establish good cause for failing to seek aSalamon type instruction at trial or for failing to raise a claim on direct appeal regarding the trial court’s failure to give such an instruction, as other defendants had done.
In light ofthis conclusion, there is no needto address whether the petitioner satisfied the second prong of the test required under the procedural default rule. I nonetheless agree with Justice Eveleigh’s thorough analysis ofthis issue in his dissenting opinion and with his conclusion that the petitioner did not demonstrate that he suffered actual prejudice because of the trial court’s failure to give the jury a Salamon instruction.
Foralloftheforegoingreasons, Irespectfullydissent.

1 The petitioner makes this relatively brief argument in the middle of his twenty-onepage discussionoftheproceduraldefaultrule andthe conclusion ofthe habeas court and the Appellate Court that the petitioner had demonstrated the good cause and actual prejudice required under the rule to bar

a procedural default.

2 The majoritydescribestheparties’ failureto raise such aclaim as ‘‘beside the point.’’ Footnote 4 ofthe majority opinion. I strongly disagree with this cavalierdismissal ofsuch anobvious andimportant omission. Ifthe majority wishes to address whether the procedural default rule should be replaced by a different standard in the context of a Salamon claim, it must do so by following the court’s routine practice of ordering the parties to file supplemental briefs on the issue, as we have done when reexamining the standardofreviewforresolvinghabeas claimsallegingineffective assistance of counsel; see, e.g., Small v. Commissioner ofCorrection, 286 Conn. 707, 715 n.5, 946 A.2d 1203 (2008) (ordering supplemental briefing on issue of appropriate standard ofreview in habeas proceedings for claims of ineffective assistance of counsel premised on failure oftrial and appellate counsel to raise, attrialand on directappeal, respectively, issue oflack ofinstruction

on essential element of crime charged), cert. denied sub nom. Small v. Lantz, 555 U.S. 975, 129 S. Ct. 481, 172 L. Ed. 2d 336 (2008); Ghant v. Commissioner of Correction, 255 Conn. 1, 11 n.7, 761 A.2d 740 (2000) (ordering supplemental briefing on standard to be applied in assessing inef-fective assistance of counsel claim); and in numerous other cases involving

a wide variety of issues. See, e.g., In re Shane M ., 318 Conn. 569, 587 and n.16, 122 A.3d 1247 (2015) (ordering supplemental briefing to consider appropriate standard ofreview oftrial court’s finding that parent has failed to achieve sufficient rehabilitation); State v. Kalphat, 285 Conn. 367, 374 and n.11, 939 A.2d 1165 (2008) (ordering supplemental briefing concerning standing of defendant to challenge legality of search); Brown v. Soh, 280 Conn. 494, 500, 909A.2d43 (2006) (ordering supplementalbriefing onimpact ofpriordecisiononexculpatorycontracts signedbypublicusers ofcommercial recreational services); State v. DeCaro, 280 Conn. 456, 468–69, 908 A.2d 1063 (2006) (ordering supplemental briefing regarding whether, in light of trial court’s finding regarding compliance with subpoena, judgment should be affirmed);Statev.Kirby, 280 Conn. 361, 387, 908A.2d506 (2006) (ordering supplemental briefing on whether certain statements properly admitted at trial); Dark-Eyes v. Commissioner ofRevenue Services, 276 Conn. 559, 568 n.9, 887A.2d 848 (ordering supplementalbriefing on impact ofUnited States Supreme Courtdecisioninvolvingcity’sassessmentofpropertytaxesagainst Indian tribe), cert. denied, 549 U.S. 815, 127 S. Ct. 347, 166 L. Ed. 2d 26 (2006); Almada v. Wausau Business Ins. Co., 274 Conn. 449, 454–55, 876 A.2d 535 (2005) (ordering supplemental briefing on impact ofprior decision

on claim oftortious processing of workers’ compensation claim); Location Realty, Inc

. v. General Financial Services, Inc., 273 Conn. 766, 771, 873 A.2d 163 (2005) (orderingsupplementalbriefing onapplicabilityofparticular statute to issue on appeal); Bloom v. Gershon, 271 Conn. 96, 105–106, 856 A.2d 335 (2004) (ordering supplemental briefing on impact ofprior decision

on whether Claims Commissioner had authority to permit apportionment complaint against state); Nussbaum v. Kimberly Timbers, Ltd., 271 Conn. 65, 70, 856 A.2d 364 (2004) (ordering supplemental briefing on whether enforceability of arbitration provision in contract is question to be decided infirstinstancebyarbitrator);Pikulskiv. WaterburyHospitalHealthCenter, 269 Conn. 1, 6 n.3, 848 A.2d 373 (2004) (ordering supplemental briefing on applicability ofrecent decision to issue raised on appeal); Mandellv. Gavin, 262 Conn. 659, 662 n.3, 816 A.2d 619 (2003) (ordering supplemental briefing

on meaning of statutory term); Cox Cable Advisory Council v. Dept. of Public UtilityControl, 259 Conn. 56, 62 n.8, 788A.2d29 (orderingsupplemental briefing on whether federal legislation preempted action of advisory council to local cable television company), cert. denied, 537 U.S. 819, 123 S. Ct. 95, 154 L. Ed. 2d 25 (2002); Darien v. Estate ofD’Addario, 258 Conn. 663, 670, 784 A.2d 337 (2001) (ordering supplemental briefing on meaning of statutory terms and relationship of certain statutes to one another); Quarry Knoll II Corp

. v. Planning & Zoning Commission, 256 Conn. 674, 699–700, 780 A.2d 1 (2001) (ordering supplemental briefing on whether statutory amendment should be retroactively applied); Oxford Tire Supply, Inc

. v. Commissioner ofRevenue Services, 253 Conn. 683, 689, 755 A.2d 850 (2000) (orderingsupplementalbriefing onwhetherstatutoryamendment should be retroactively applied); State v. Hart, 221 Conn. 595, 607–608 n.10, 605 A.2d 1366 (1992) (ordering supplemental briefing on whether, after defendant has raised issue of drug dependency, state or defendant has burden of proof under statutory scheme and what standard applies).

3 The majoritystatesthatthepluralityopinioninLuurtsemahasprecedential value because Justice Katz ‘‘agree[d] with the plurality’s thoughtful explanation as to why we should reject the state’s call to adopt a per se rule against retroactivity and its equally persuasive rejection of the state’s arguments against affording relief to [Luurtsema],’’ her ‘‘sole disagreement [being] with the [plurality’s] resolution of [the retroactivity] issue

. . . [and] its recognition ofthe possibility ofunusual circumstances in which retroactivity would not apply.’’ (Internal quotation marks omitted.) Footnote 7 of the majority opinion. The majority, however, missesthepointthat amajority ofthe panel members inLuurtsema failedto reach agreement on the crucial issue of how the retroactivity decision of the court should be applied. As previously discussed, Justice Katz supported a per se rule in favor of full retroactivity; Luurtsema v. Commissioner ofCorrection, supra, 299 Conn. 791; the plurality supported a general presumption in favor of retroactivity subject to certain qualifications that Justice Katz deemed unworkable; id., 764 (plurality opinion); see id., 791 ( Katz, J., concurring); Justice Palmer expressed his hesitation to support aper se rule in favor offull retroactivity at that time; see id., 797–98; and Justice McLachlan concurred in the judgment with little explanation. See id., 798–99. Given these differing views, it cannot be said that Luurtsema has any precedential value with respect to the critical question before this court ofthe standard that should be appliedwhen considering the retroactive application of Salamon in a habeas proceeding. The fact that Justice Katz may have agreed with the plurality’s explanation as to why it rejected the state’s policy arguments in favor of a per se rule against retroactivity simply does not relate to this question. Moreover, even if it did, our well established law provides that the holding of a fragmented court ‘‘may be viewed [only] as the position taken by those [m]embers who concurred in the judgments on the narrowest grounds

. . . .’’ (Emphasis added; internal quotation marks omitted.) State v. Ross, supra, 272 Conn. 604 n.13. Accordingly, the majority cannot view Justice Katz’ concurring opinion, together with the opinion of the plurality, as supporting the conclusion that the procedural default rule does not apply to Salamon claims because Justice Katz had the broadestview ofretroactivity, not the narrowest, which means that the plurality opinion inLuurtsema has no legal effect, contrary to what the majority would like to believe.

4 In Correia v. Rowland, 263 Conn. 453, 820 A.2d 1009 (2003), this court also recognized the United States Supreme Court’s holding in the context of procedural default that, ‘‘where a constitutional claim is so novel that its legal basis is not reasonably available to counsel, a defendant has cause for his failure to raise the claim in accordance with applicable

. . . procedures.’’ (Internal quotation marks omitted.) Id., 463, quoting Reed v. Ross, 468 U.S. 1, 16, 104 S. Ct. 2901, 82 L. Ed. 2d 1 (1984). Even if the present claim was a constitutional claim, however, the frequency with which prior defendants raised it or this court discussed it prior to or around the time of the trial and direct appeal of the petitioner in the present case clearly demonstrates that it is not a novel claim.