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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 relief in the form of a new trial for all collateral attacks on such judgments if the reviewing court

determines that the omission of a Salamon instruction

was not harmless beyond a reasonable doubt. I respectfully disagree. Neither party has questioned on appeal

to this court whether the procedural default rule 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

of a Salamon instruction.As a consequence, 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

our law 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 of Salamon claims, the petitioner, Walter Hinds,

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 discussed in Justice Eveleigh’s dissenting opinion, the petitioner 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 of this

court’s reasoning in Luurtsema and to replace it with

an entirely new standard that would require a reviewing

court to determine whether the omission of a Salamon

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 in
their separate appeals to this court. Both parties instead

address the merits of the Appellate Court’s conclusion

thatthe petitioner established the good cause and actual

prejudice required under the rule to allow habeas

review of his jury instruction claim. In fact, the respondent, the Commissioner of Correction, citing Johnson

v. Commissioner of Correction, 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 of procedural default’’), specifically emphasizes in his brief that 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

respondent is contending only that ‘‘the Appellate 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 review pursuant to the reasoning in Luurtsema,

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 of the procedural default rule when petitioners in habeas cases

bring Salamon claims. The majority concludes that

Luurtsema ‘‘effectively resolved the 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 of Correction, supra,

299 Conn. 766–67 (plurality opinion). Accordingly,

application of the 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 of the legislative branch.’’ Id., 766

(plurality opinion). In further support of this conclusion, the majority adds that Luurtsema failed to explic-
itly consider procedural default as a limitation on its

decision. In my view, however, the majority misunderstands Luurtsema and its potential effect, if any, on the

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

of three panel members, with one other member of the

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.

To better understand the precedential value of Luurtsema, I briefly review the opinions in that 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 by State 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

cases apply in the petitioner’s case in particular.’’ Luurtsema v. Commissioner of Correction, 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 of three

justices opted not to characterize the Salamon 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 of liability of a criminal statute. That

presumption, however, would not necessarily require

thatrelief be granted in cases where continued incarceration would notrepresent a gross miscarriage of justice,

such as where it is clear that the legislature did intend

to criminalize the conduct at issue, if perhaps not under

the precise label charged. In situations where the criminal justice system has relied on a prior interpretation

of the law so that providing retroactive relief would give

the petitioner an undeserved windfall, the traditional

rationales underlying the writ of habeas corpus [also]

may not favor full retroactivity.’’ Id., 764. The plurality

emphasized that, ‘‘in the Salamon context in particular,

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 relief to the petitioner,
Peter Luurtsema. Id., 765–72. With respect to the second

reserved question, the plurality determined that this

court’s interpretation of the kidnapping statutes in Salamon should apply retroactively to Luurtsema because

his case did not fall within any exception to the rule

discussed therein and there appeared to 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 a clarification of the 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 why the court should reject the state’s general policy

arguments for adopting a per se rule against retroactivity and the state’s arguments against affording relief to

Luurtsema; id., 791; she disagreed with the plurality’s

decision to permit exceptions to the rule ofretroactivity

in order to, as the plurality explained, ‘‘guard against

certain fringe cases . . . .’’ Id. She explained that the

plurality had crafted ‘‘a novel rule of retroactivity under

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

the plurality’s approach as ‘‘unclear’’ and discussed various hypothetical situations in which questions might

arise regarding the retroactivity of decisions 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] with much of the plurality opinion 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, observing that the court ‘‘need notresolve the issue

to decide the . . . case because, as the plurality also

conclude[d], [Luurtsema was] entitled to full retroactivity regardless of whether 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 of finality of judgments and

would deny [Luurtsema] the relief that he [sought], [but

he was] compelled to follow the precedent established

by Salamon . . . .’’ Id., 799.

This court has recognized that, ‘‘[w]hen a fragmented

[c]ourt decides a case and no single rationale explaining

the result enjoys the assent of [a majority of the] [j]ustices, the holding of the [c]ourt may be viewed as the

position taken by those [m]embers who concurred in
the judgments 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). In Luurtsema, 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 Palmer agreed with ‘‘much of the plurality opinion’’;

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 of the three concurring justices 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 rendered final before Salamon are not subject to the procedural 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

default was not addressed by any of the panel members,

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 of the procedural default rule when a petitioner who

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 in Luurtsema as to the applicability of procedural

default to a Salamon claim. In Smith v. Warden, Superior Court, judicial district of Tolland, 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 determined that the petitioner, Lawrence R. Smith, had established 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, and petitioners never challenged the propriety 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 of Correction, 151 Conn. App. 837, 97 A.3d 986,

cert. granted, 314 Conn. 928, 928–29, 101 A.3d 273

(2014); Epps v. 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 of Tolland, 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 of Correction, 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] court is of the opinion that this claim is susceptible to the special defense of procedural default if raised

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. See
Wilcox v. Commissioner of Correction, supra, 739, 746,

749–50 (reversing judgment of habeas 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, every habeas 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 of the 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, I would have answered the firstreserved question

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 in their respective 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 of judicial proceedings.’’ Luurtsema v. Commissioner of Correction, supra, 299 Conn.

765 (plurality opinion). Of particular concern to me is

that retroactive application of Salamon 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.

Absentreconsideration by this court of the retroactivity 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

of the consequences of his conduct. To the extent petitioners raise Salamon claims forthe first time in habeas

proceedings, however, I believe it is absolutely necessary to apply the procedural defaultrule when determining whether these claims are reviewable out of respect

for the consistency of our procedural default law and

for the principle of the finality of judgments.

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 of the 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

entirely new standard because itrepresents a significant

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

appeal and actual prejudice resulting from the impropriety claimed in the habeas petition.’’(Emphasis omitted.)

Johnson v. Commissioner of Correction, 285 Conn. 556,
567, 941 A.2d 248 (2008). Thus, to the extent a petitioner

does not seek or object to the lack of a Salamon instruction 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 efforts to comply with the [s]tate’s procedural

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

they worked 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 of judgments and the

purpose and policies underlying the Great Writ. As the

state notes, the writ of habeas corpus is intended as ‘‘a

special and extraordinary writ.’’ McClain v. Robinson,

189 Conn. 663, 668, 457 A.2d 1072 (1983). It is thus

available to address ‘‘fundamental unfairness or miscarriage of justice’’; Bunkley v. Commissioner of Correction, 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 relief on 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 . . .

petition may not be employed as a substitute for a direct

appeal’’; Summerville v. Warden, supra, 429; it makes

no sense to abandon the cause and prejudice standard
in favor of a 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

incarcerated for crimes they did not commit. The procedural 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 only justifications 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

default barto protect finality of judgments seems 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 of the legislative

branch.’ ’’ Text accompanying footnote 8 of the majority

opinion, quoting Luurtsema v. Commissioner of Correction, supra, 299 Conn. 766 (plurality opinion). As

previously discussed, however, the court in Luurtsema

did not adopt a per se rule in favor of full 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 of its 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 habeas
proceedings 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 support forthe majority’s speculation that the plurality’s failure to discuss procedural default in Luurtsema

meant that it did not view procedural default as a limitation 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

should be applied to Salamon claims in habeas proceedings when it made a passing reference to the harmless

error standard. Rather, the plurality was considering the

state’s policy argument that ‘‘a finding of retroactivity

would flood the court system with habeas petitioners

seeking to overturn kidnapping convictions . . . .’’

(Internal quotation marks omitted.) Luurtsema v. 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

that the court would be flooded with petitioners 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 of Correction,

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 a Salamon-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 if the petitioner fails

to meet either prong.’’ (Internal quotation marks omitted.) Thorpe v. Commissioner of Correction, 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 of kidnapping 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.

As previously explained, ‘‘[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 efforts to

comply with the [s]tate’s procedural rule.’’ (Internal

quotation marks omitted.) Johnson v. Commissioner

of Correction, 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 of these principles, I do not believe that futility is a persuasive argument becauseConnecticut’s decisional 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

the broad construction that [the court had] given them.’’

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 of the

kidnapping statutes and the first time that we examined
the circumstances surrounding the 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.) Luurtsema v. Commissioner of Correction, supra,

299 Conn. 786 (Katz, J., concurring). Accordingly, there

was no reason for the petitioner to believe that it would

have been futile to raise such a claim.

There also was a reasonable basis at the time of the

petitioner’s trial and direct appeal on which to challenge

this court’s interpretation of the kidnapping statutes

because, even though the court had supported a broad

interpretation of the statutes on a number of occasions

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 of the 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 of rape’’ [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

defendant in that case supported kidnapping 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

jury that he could not be convicted on kidnapping count

if jury 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); State v. Chetcuti, supra, 173 Conn.

168–69 (rejecting challenge to kidnapping statutes as

unconstitutional on ground they can be applied to other

criminal activity to which kidnapping is only incidental

and subsidiary).4

Ratherthan view this history of continuing challenges
to 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 Chief Justice McDonald in 2001,

in which they questioned this court’s broad interpretation of the kidnapping statutes, as an invitation to raise

the claim again in the hope that the court would revisit

the issue and alterits interpretation, as it did in Salamon

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

court that has previously rejected a constitutional argument may decide, upon reflection, that the contention

is valid.’’ (Internal quotation marks omitted.) Johnson

v. Commissioner of Correction, supra, 218 Conn. 422.

I would therefore conclude that the petitioner did not

establish good cause for failing to seek a Salamon 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 of this conclusion, there is no need to 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 of this 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.

For all of the foregoing reasons, Irespectfully dissent.

1 The petitioner makes this relatively brief argument in the middle of his

twenty-one page discussion of the procedural defaultrule and the conclusion

of the 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 majority describes the parties’ failure to raise such a claim as ‘‘beside

the point.’’ Footnote 4 of the majority opinion. I strongly disagree with this

cavalier dismissal of such an obvious and important omission. If the 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

standard ofreview forresolving habeas claims alleging ineffective assistance

of counsel; see, e.g., Small v. Commissioner of Correction, 286 Conn. 707,

715 n.5, 946 A.2d 1203 (2008) (ordering supplemental briefing on issue of

appropriate standard of review in habeas proceedings for claims of ineffective assistance of counsel premised on failure of trial and appellate counsel

to raise, at trial and on direct appeal, respectively, issue of lack of instruction

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 of review of trial 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, 909 A.2d 43 (2006)(ordering supplemental briefing on impact

of prior decision on exculpatory contracts signed by public users of commercial 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); State v. Kirby, 280 Conn. 361, 387, 908 A.2d 506 (2006)(ordering

supplemental briefing on whether certain statements properly admitted at

trial); Dark-Eyes v. Commissioner of Revenue Services, 276 Conn. 559, 568

n.9, 887 A.2d 848 (ordering supplemental briefing on impact of United States

Supreme Court decision involving city’s assessment of property taxes against

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 of prior decision

on claim of tortious processing of workers’ compensation claim); Location

Realty, Inc. v. General Financial Services, Inc., 273 Conn. 766, 771, 873

A.2d 163 (2005)(ordering supplemental briefing on applicability of particular

statute to issue on appeal); Bloom v. Gershon, 271 Conn. 96, 105–106, 856

A.2d 335 (2004) (ordering supplemental briefing on impact of prior 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

in firstinstance by arbitrator); Pikulski v. Waterbury Hospital HealthCenter,

269 Conn. 1, 6 n.3, 848 A.2d 373 (2004) (ordering supplemental briefing on

applicability of recent decision to issue raised on appeal); Mandell v. 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, 788 A.2d 29 (ordering supplemental 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 of D’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 of Revenue Services, 253 Conn. 683, 689, 755 A.2d

850 (2000)(ordering supplemental briefing on whether statutory amendment

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 majority states that the plurality opinion in Luurtsema has precedential 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 of the possibility of unusual circumstances in which retroactivity would not apply.’’ (Internal quotation marks omitted.) Footnote 7 of

the majority opinion. The majority, however, misses the point that a majority

of the panel members in Luurtsema failed to 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 of Correction, 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 a per se rule in favor of full 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 of the standard that should be applied
when 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 broadest view of retroactivity, not the narrowest, which means that the plurality opinion in Luurtsema

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.