******************************************************

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******************************************************
APPENDIX

EARL THOMPSON v. COMMISSIONER

OF CORRECTION*

Superior Court, Judicial District of Tolland

File No. CV-12-4004330

Memorandum filed August 4, 2014

Proceedings

Memorandum of decision on petitioner’s petition for

writ of habeas corpus. Petition denied.

W. Theodore Koch III, for the petitioner.

Lisamaria T. Proscino, special deputy assistant

state’s attorney, and Michael J. Proto, assistant state’s

attorney, for the respondent.
Opinion

FUGER, J. The petitioner, Earl Thompson, inmate #

305523, alleges in his petition for a writ of habeas corpus, initially filed on August 31, 2011, and amended for

the final time on June 10, 2014, that his confinement

under the custody of the respondent, the Commissioner

of Correction, is illegal. Specifically, the petitioner in

the three count complaint alleges that: (1) he is actually

innocent of the crimes of which he was convicted; (2)

his trial defense counsel, Attorney Gerald Beaudoin,

was ineffective in his representation of the petitioner

at his criminal trial; and (3) that his appellate counsel,

Attorney Beaudoin, was ineffective.

During the July 29, 2014 trial on the merits of this

habeas petition, the court received testimony from the

petitioner, his trial defense counsel, Attorney Beaudoin,

Attorney John Walkley, inmate Stephen Nelson, and

inmate Ian Wright. Finally, the court received various

pieces of documentary evidence, including the petitioner’s criminal trial transcript, into evidence.

FINDINGS OF FACT

1. The petitioner was a defendant in a criminal case

proceeding in the judicial district of Hartford under

Docket No. CR-08-06918868T in which, after a trial to

a jury on October 22, 2009, he was found guilty of

robbery in the first degree in violation of General Statutes § 53a-134a (4), conspiracy to commit robbery in

the first degree in violation of General Statutes §§ 53a48 and 53a-134a (4), as well as kidnapping in the first

degree in violation of General Statutes §§ 53a-92 (a) (2)

(B) and 53a-8.

2. These charges arose out of a home invasion that

took place in Bloomfield on August 10, 2004.

3. The jury could reasonably find the following facts

to be true. ‘‘At approximately 11:30 p.m. on August 10,

2004, Stephan Julian arrived at her home in Bloomfield.

At that time, her son, Damien Gardner, resided with

her but was not present that night. As Julian entered

the house, she was confronted by a man with a gun. A

second man, also armed with a gun, quickly emerged.

Because the faces of both men were covered, Julian

could notrecognize them, but she was able to determine

that they were both dark skinned with Jamaican

accents. The men repeatedly asked Julian where money

was located in the house and forced her to lie on the

floor in a downstairs bathroom while they searched the

house. The men periodically checked on Julian, and

she could hear them going up and down the stairs of

her home. At one point, she heard an upstairs toilet

flush. Eventually, when Julian no longer heard the men

in her home, she peeked out of the bathroom and saw

that it was light outside. She exited the bathroom and

called the police.
4. ‘‘Detective Eric Kovanda was primarily responsible

for processing the crime scene. In addition to other

forensic evidence, Kovanda collected two urine samples from the rim of the toilet located in one of the

upstairs bathrooms. The DNA profile developed from

the urine swabs did not match any in the existing

offender databases. In 2006, two jailhouse informants

identified the [petitioner] as a suspect, and, consequently, on February 11, 2008, the police collected a

DNA sample from the [petitioner] for comparison to

the DNA profile developed from the urine samples that

had been collected from the crime scene.

5. ‘‘On February 28, 2008, Kovanda met with the [petitioner] to discuss the August 11, 2004 incident. The

[petitioner] indicated that he knew Julian’s son, Gardner, and that he had been at their house a week or a

few days prior to August 11, 2004.’’1

6. The petitioner was sentenced by the court (Dewey,

J.) to a prison term of twenty years on the charge of

robbery in the first degree, twenty years to run concurrent on the conspiracy to commit robbery in the first

degree, and twenty-five years, to run consecutive on

the count of kidnapping in the first degree. The total

effective sentence was a commitment to the custody

of the respondent for forty-five years.

7. Additional facts will be discussed, as necessary,

in subsequent portions of this decision.

DISCUSSION

The petitioner now comes before this court seeking

to have this court order that the petitioner’s conviction

be set aside and the matter returned to the docket for

further proceedings. The petitioner’s major argument

is that his trial defense counsel was constitutionally

deficient in his performance of duties and that therefore, the petitioner was deprived of the assistance of

the competent counsel guaranteed to him by the sixth

amendment to the United States constitution, thereby

rendering his confinement by the respondent illegal.

While there are other claims, the petitioner mounts his

primary attack upon his trial defense counsel for his

failure to file a motion for a finding of not guilty as to

the charge of kidnapping.

It is important to understand that this instant proceeding is an action seeking the issuance of a writ of

habeas corpus. This case is now in what is often termed

the ‘‘court of last resort.’’ A petition for a writ of habeas

corpus is, therefore, an application for extraordinary

judicial relief in which, contrary to the criminal trial

court, the burden rests with the petitioner.2

Notwithstanding the arguments raised by counsel and

the petitioner, the court disagrees with the position of

the petitioner and will deny the petition for a writ of

habeas corpus.
At the outset, one must understand that there is a

critical difference between the legal status of a person

who has been accused of a crime as opposed to one

who has been convicted of a crime. While the person

who has been accused of a crime is entitled to a presumption of his or her innocence, the petitioner in a

habeas corpus petition is not. ‘‘It is undoubtedly true

that ‘[a] person when first charged with a crime is entitled to a presumption of innocence, and may insist that

his guilt be established beyond a reasonable doubt. In

re Winship, 397 U.S. [358, 90 S. Ct. 1068, 25 L. Ed. 2d

368 (1970)].’ Herrera v. Collins, 506 U.S. 390, [398, 113

S. Ct. 853], 122 L. Ed. 2d 203 (1993). . . . The presumption of innocence, however, does not outlast the judgment of conviction at trial.’’ (Citations omitted.)

Summerville v. Warden, 229 Conn. 397, 422–23, 641

A.2d 1356 (1994). Consequently, the burden of proving

entitlement to the grant of a writ rests with the petitioner. ‘‘Thus, in the eyes of the law, [the] petitioner

does not come before the Court as one who is innocent,

[but, on the contrary, as] one who has been convicted

by due process of law . . . .’’ (Internal quotation marks

omitted.) Id., 423. The petitioner is not, therefore, in

the role of a ‘‘defendant,’’ but is instead, a ‘‘convict.’’

The writ of habeas corpus is an ancient and timehonored component of our Anglo-American jurisprudence. ‘‘We do well to bear in mind the extraordinary

prestige of the Great Writ, habeas corpus ad subjiciendum, in Anglo-American jurisprudence: ‘the most celebrated writ in the English law.’ 3 Blackstone

Commentaries 129. It is ‘a writ antecedent to statute,

and throwing its root deep into the genius of our common law. . . . It is perhaps the most important writ

known to the constitutional law of England, affording

as it does a swift and imperative remedy in all cases

of illegal restraint or confinement. It is of immemorial

antiquity, an instance of its use occurring in the thirtythird year of Edward I.’ ’’

3

(Emphasis omitted; footnote

omitted.) Fay v. Noia, 372 U.S. 391, 399–400, 83 S. Ct.

822, 9 L. Ed. 2d 837 (1963). When the United States

achieved independence from England, the writ made

the transatlantic voyage and became embodied in our

law as well. ‘‘Received into our own law in the colonial

period, given explicit recognition in the Federal Constitution, Art. I, § 9, cl. 2, incorporated in the first grant

of federal court jurisdiction, Act of September 24, 1789,

c. 20, § 14, 1 Stat. 81–82, habeas corpus was early confirmed by Chief Justice John Marshall to be a ‘great

constitutional privilege.’ Ex parte Bollman and

Swartwout, 4 Cranch 75, 95.’’ (Footnotes omitted.) Fay

v. Noia, supra, 400.

Issuance of a writ of habeas corpus is a remedy whose

‘‘most basic traditions and purposes’’; O’Neal v. McAninch, 513 U.S. 432, 443, 115 S. Ct. 992, 130 L. Ed. 2d

947 (1995); are to ‘‘avoid a grievous wrong—holding a
person in custody in violation of the [federal] constitution,’’ and thereby to protect ‘‘individuals from unconstitutional convictions and helps to guarantee the integrity

of the criminal process by assuring that trials are fundamentally fair.’’ Id., 442. Moreover, when a court reviews

a petition for habeas corpus, ‘‘it must decide whether

the petitioner is in custody in violation of the Constitution or laws or treaties of the United States. . . . The

court does not review a judgment, but the lawfulness of

the petitioner’s custody simpliciter.’’ (Citation omitted;

emphasis omitted; internal quotation marks omitted.)

Coleman v. Thompson, 501 U.S. 722, 730, 111 S. Ct.

2546, 115 L. Ed. 2d 640 (1991).4 So, the writ of habeas

corpus ‘‘has been for centuries esteemed the best and

only sufficient defense of personal freedom . . . .’’

(Citation omitted; internal quotation marks omitted.)

Lonchar v. Thomas, 517 U.S. 314, 324, 116 S. Ct. 1293,

134 L. Ed. 2d 440 (1996).

A criminal defendant, of course, has an absolute constitutional right to persist in a plea of not guilty, even

in the face of what some might think to be seemingly

insurmountable obstacles and overwhelming evidence.

He or she has an absolute right to hold the government

to its justifiably high burden of proof and take the matter

to a jury of his or her peers. The constitution of the

United States, the Bill of Rights, and the constitution

of the state of Connecticut collectively guarantee the

fundamental right of a person to plead not guilty and

have his or her case decided before a jury of his or her

peers. Our common law has interpreted these constitutional guarantees as requiring that the government seeking to deprive a person of freedom must first prove that

person’s guilt beyond all reasonable doubt.

5 Moreover,

all criminal defendants are entitled to the representation of counsel. The sixth amendment to the United

States constitution provides in relevant part: ‘‘In all

criminal prosecutions, the accused shall enjoy the right

. . . to be confronted with the witnesses against him

. . . and to have the assistance of counsel for his

defense.’’ The sixth amendment right of confrontation

and right to counsel is made applicable to the states

through the due process clause of the fourteenth

amendment. See Pointer v. Texas, 380 U.S. 400, 403, 85

S. Ct. 1065, 13 L. Ed. 2d 923 (1965), and Gideon v.

Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d

799 (1963), respectively. The sixth amendment right to

counsel is necessarily the right to an effective counsel.

Notwithstanding, our constitutions do not require that

a criminal defendant receive perfect representation.

It is not, and never has been, for the trial defense

counsel to make the decisions that a client must make.

The defendant decides how to plead, whether to testify,

whetherto waive the right to trial by jury, etc. Nevertheless, effective representation by counsel is crucial.

‘‘Because a defendant often relies heavily on counsel’s

independent evaluation of the charges and defenses,
the ‘right to effective assistance of counsel includes an

adequate investigation of the case to determine facts

relevant to the merits or to the punishment in the event

of conviction.’ Copas v. Commissioner of Correction,

234 Conn. 139, 154, 662 A.2d 718 (1995).’’ Baillargeon

v. Commissioner of Correction, 67 Conn. App. 716, 721,

789 A.2d 1046 (2002). Consequently, an attorney who

fails to offer his or her client proper counsel at critical

junctures in the trial may well be providing ineffective

representation.

In order that a petitioner prevail in a claim of ineffective assistance of counsel, the proof must satisfy both

prongs of the test setforth by the United States Supreme

Court in Strickland v. Washington, 466 U.S. 668, 104

S. Ct. 2052, 80 L. Ed. 2d 674 (1984), before the court

can grant relief. Specifically, the petitioner must first

show ‘‘that counsel’s performance was deficient. This

requires showing that counsel made errors so serious

that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.’’ Id.,

687. If, and only if, the petitioner manages to get overthe

first hurdle, then the petitioner must clear the second

obstacle by proving ‘‘that the deficient performance

prejudiced the defense. This requires showing that

counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless

a defendant makes both showings, it cannot be said

that the conviction . . . resulted from a breakdown in

the adversary process that renders the result unreliable.’’ Id. In short, the petitioner must show both deficiency and prejudice. A failure to prove both, even

though counsel’s trial performance may have been substandard, will result in denial of the petition.

As already noted, a criminal defendant is entitled

to the representation of trained and competent legal

counsel. Notwithstanding, ‘‘[t]he Sixth Amendment

guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight. See Bell v.

Cone, 535 U.S. [685, 702, 122 S. Ct. 1843, 152 L. Ed. 2d

914 (2002)]; Kimmelman v. Morrison, 477 U.S. 365, 382

[106 S. Ct. 2574, 91 L. Ed. 2d 305] (1986); Strickland

v. Washington, [supra, 466 U.S. 689]; United States v.

Cronic, 466 U.S. 648, 656 [104 S. Ct. 2039, 80 L. Ed. 2d

657] (1984).’’ Yarborough v. Gentry, 540 U.S. 1, 8, 124

S. Ct. 1, 157 L. Ed. 2d 1 (2003). ‘‘[T]o prove that his

counsel’s performance was deficient, the petitioner

must demonstrate that trial counsel’s representation

fell below an objective standard of reasonableness.

. . . Because of the difficulties inherent in making the

evaluation, a court must indulge a strong presumption

that counsel’s conduct falls within the wide range of

reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the

circumstances, the challenged action might be considered sound trial strategy.’’ (Internal quotation marks

omitted.) Smith v. Commissioner of Correction, 148
Conn. App. 517, 524, 85 A.3d 1199, cert. denied, 312

Conn. 901, 91 A.3d 908 (2014).

Trial in this court of a habeas petition is not an opportunity for a new counsel to attempt to relitigate a case

in a different manner. A habeas court ‘‘may not indulge

in hindsight to reconstruct the circumstances surrounding the challenged conduct, but must evaluate the

acts or omissions from trial counsel’s perspective at

the time of the trial.’’ Beasley v. Commissioner of Correction, 47 Conn. App. 253, 264, 704 A.2d 807 (1997),

cert. denied, 243 Conn. 967, 707 A.2d 1267 (1998). ‘‘A

fair assessment of attorney performance requires that

every effort be made to eliminate the distorting effects

of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct

from counsel’s perspective at the time. Because of the

difficulties inherent in making the evaluation, a court

must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance . . . .’’ (Internal quotation marks

omitted.) Henry v. Commissioner of Correction, 60

Conn. App. 313, 317, 759 A.2d 118 (2000).

Turning now to the specific complaints of the petitioner and the specific deficiencies alleged in the complaint, this habeas court will find that there is no merit

to any of the points raised by the petitioner.

The petitioner was charged with both kidnapping and

the felony of robbery. It is axiomatic that at the time

of the petitioner’s criminal trial, ‘‘to commit a kidnapping in conjunction with another crime, a defendant

must intend to prevent the victim’s liberation for a

longer period of time or to a greater degree than that

which is necessary to commit the crime.’’ State v. Salamon, 287 Conn. 509, 542, 949 A.2d 1092 (2008). ‘‘[A]

defendant may be convicted of both kidnapping and

another substantive crime if, at any time priorto, during

or after the commission of that other crime, the victim

is moved or confined in a way that has independent

criminal significance, that is, the victim was restrained

to an extent exceeding that which was necessary to

accomplish or complete the other crime. Whether the

movement or confinement of the victim is merely incidental to and necessary for another crime will depend

on the particular facts and circumstances of each case.

Consequently, when the evidence reasonably supports

a finding that the restraint was not merely incidental

to the commission of some other, separate crime, the

ultimate factual determination must be made by the

jury. For purposes of making that determination, the

jury should be instructed to consider the various relevant factors, including the nature and duration of the

victim’s movement or confinement by the defendant,

whether that movement or confinement occurred during the commission of the separate offense, whether

the restraint was inherent in the nature of the separate
offense, whetherthe restraint prevented the victim from

summoning assistance, whether the restraint reduced

the defendant’s risk of detection and whether the

restraint created a significant danger or increased the

victim’s risk of harm independent of that posed by the

separate offense.’’ (Emphasis altered; footnote omitted.) Id., 547–48.

The petitioner’s theory of defense at his trial was

that he did not commit these crimes, which, given the

inability of the victim to identify the perpetrators, was

not an altogether bad decision. The petitioner complains in his habeas petition that his trial defense counsel was deficient in his performance by neither raising

the Salamon defense in a motion for a finding of not

guilty before the trial judge and by failing to make that

argument to the jury. It is uncontested that the trial

defense counsel did neither, and this court makes that

specific finding of fact. It is also uncontested that in

her instructions to the jury, the trial court correctly and

clearly gave a proper Salamon instruction.6 The issue

having been submitted to the jury after having received

appropriate instructions, of course, left the determination as to whether the restraint involved in this case

was incidental to the robbery as a question of fact to

be made by the jury.

Notwithstanding, the issue as to whether this factual

determination should have been presented to the jury

was not resolved at the petitioner’s criminal trial. Trial

defense counsel never moved for a finding of not guilty

on the kidnapping charge on this basis, nor did he make

such an argument to the jury. At the habeas trial, counsel clearly explained that he made the conscious decision not to do so because he did not want to lose

credibility with the judge or the jury. Although it is

clear that lawyers are free to make conflicting, mutually

exclusive arguments to juries, there is the inherent risk

that in so doing the credibility of a defense could suffer.

In this case, the defense strategy was that the petitioner

did not commit the crime. To make the argument to

the jury, even though he was not the perpetrator, that

the restraint involved in the case was merely incidental

to the robbery was a risky strategy. Even though such

an argument would be permissible, trial defense counsel was correct in believing that doing so could cause

him to lose credibility with the jury and thereby harm

the petitioner’s case. Consequently, he made the strategic decision to eschew such an argument. This court

cannotfind thatthis strategic decision was unwarranted

or unsound and, therefore, will not find that the failure

on the part of trial defense counsel to do so was deficient performance.

The same finding cannot be made in regard to the

decision not to move for a finding of not guilty with

the trial judge before the case even went to the jury.

This court will find it was deficient performance on the
part of trial defense counsel not to raise such a motion

with the trial judge. The main distinction between raising the motion to the judge and making a similar argument to the jury is that the judge would be deciding

the motion as a matter of law, while jury would be

finding facts. Simply put, while there could be some

blowback from making a seemingly incongruous argument to the jury, there was no risk of that in presenting

the motion for a finding of not guilty to the judge.

Consequently, this court finds that the trial defense

counsel was deficient in his performance of duty to the

petitioner by not raising the motion to the trial court

judge. This finding is but the first hurdle the petitioner

must clear in order to prove ineffective assistance of

counsel.

This court must now evaluate whether the deficient

performance by trial defense counsel prejudiced the

petitioner. In other words, is it reasonably probable

that the deficient performance caused the result of the

trial to be unreliable. The answer to this will turn upon

a determination by this habeas court as to whether it

is reasonably probable that had the trial court judge

been presented with that motion, would she have

granted it? To answer that question, this court has carefully [reviewed] all of the testimony in the petitioner’s

criminal trial focusing on the issue of whether there

was any evidence that a reasonably prudent jury might

use to decide the restraint issue adversely to the government. First of all, we have the fact that the jury did not

make such a finding. Moreover, there is nothing in the

record thatin any way makes thatfinding clearly erroneous or unreasonable. In other words, a reading of the

transcript clearly shows that the facts surrounding the

movement and restraint of the victim in this case shows

that there is more than ample evidence by which any

reasonable jury could conclude that ‘‘that the restraint

was not merely incidental to the commission of some

other, separate crime.’’ It is expressly found that any

reasonable jurist, and in particular, the trial judge in

the petitioner’s criminal case, would agree with that

assessment and would deny a motion for a finding of

not guilty and allow the factual issue to go to the jury.

Consequently, the petitioner has failed to show the second prong of Strickland, that is, prejudice, and relief

shall not be forthcoming.7

CLAIM OF ACTUAL INNOCENCE

In count one of the amended petition, the petitioner

has alleged a claim of actual innocence. This claim shall

fail as well for the following reasons. The Supreme

Court in Summerville discussed the differences

between a petition for a new trial, which has a three

year statute of limitations, except when premised on

newly discovered DNA evidence, and a petition for a

writ of habeas corpus, for which there is no applicable

statute of limitations.8 Summerville v. Warden, supra,
229 Conn. 426–27; General Statutes § 52-582.9

‘‘Principally because of the absence of any statute of

limitations governing the writ of habeas corpus . . .

the standards governing the issuance of the writ based

on a claim of actual innocence are not, however, necessarily the same as those governing a petition for a new

trial based upon newly discovered evidence. Employing

the same standard for both petitions would ignore the

legislative determination embodied in the statute of

limitations. The principal purpose of the writ of habeas

corpus is to serve as a bulwark against violations of

fundamental fairness. . . . Whether there has been

such a violation must be determined, not only with

regard to the petitioner’s claim, but also with regard to

the effect of the issuance of the writ on the strong

interest in the finality of judgments . . . and the other

interests embodied in the statute of limitations. . . .

‘‘[The Supreme Court has], therefore, imposed on

a habeas corpus petitioner certain requirements that

reflect these policy interests. For example, [it has]

imposed a heavy burden of proof on the petitioner to

establish that he is entitled to a new trial. . . . [The

Supreme Court has] also adopted the ‘cause and prejudice’ standard for the reviewability in a habeas corpus

proceeding of constitutional claims not adequately preserved at trial . . . .

‘‘Those requirements, which stem largely from the

fact that a habeas corpus petition may properly be

brought at any time, rest in significant part on the costs

to the public interests that are incurred when the state

is required to retry a defendant many years after the

events in question. . . . The wholesale transplanting

of the petition for a new trial standard to a habeas

corpus petition based on a claim of actual innocence

would not give due respect to those considerations.

The petitioner who thinks thatthere is newly discovered

evidence sufficient to overturn his verdict would have

no incentive to bring that evidence before the court

within the three year limitations period, and there

would be no consequence of his failure to do so.10

. . .

Thus, just as a habeas corpus petition may not be

employed as a substitute for a direct appeal . . . a

habeas corpus petition is not a surrogate for a time

barred petition for a new trial.’’ (Citations omitted; footnote omitted.) Summerville v. Warden, supra, 229

Conn. 427–29.

Several years after Summerville, the Supreme Court

decided Miller v. Commissioner of Correction, 242

Conn. 745, 700 A.2d 1108 (1997). Miller ‘‘present[ed]

a question that [the court had] found unnecessary to

answer in Summerville, namely, what is the legal standard [of persuasion] that must be met by a habeas

corpus petitioner claiming actual innocence in order to

gain a new trial at which his guilt or innocence will

again be determined?’’ (Internal quotation marks omit-
ted.) Id., 746.

The Miller court began its consideration of the standard of proof with the following remark: ‘‘In doing so,

we assume without deciding that the petitioner’s claim

must be based on ‘new evidence,’ that is, evidence that

is not cumulative, was not available to the petitioner

at his criminal trial, and could not have been discovered

by him at that time through due diligence. See Summerville v. Warden, supra, 229 Conn. 426. We make

this assumption for the purposes of the present case

because: (1) the habeas court applied that requirement

to the petitioner in this case, and determined that the

petitioner’s evidence met that requirement; (2) the petitioner agreed that this should be one of the components

of his burden; and (3) the parties do not dispute that the

petitioner’s evidence is newly discovered. We recently

certified for appeal the specific question of whether a

freestanding claim of actual innocence must be based

on new evidence. Williams v. Commissioner of Correction, 240 Conn. 547, 548, 692 A.2d 1231 (1997). We

subsequently dismissed that certified appeal as having

been improvidently granted, however, because the petitioner in that case also agreed with the ‘new evidence’

requirement. Id., 548–49.’’ (Emphasis omitted.) Miller

v. Commissioner of Correction, supra, 242 Conn.

789–90 n.29.

Now, more than a decade after deciding Miller, the

Supreme Court still has not had occasion to address

the ‘new evidence’ requirement. Even as recently as

2009, the court observed that it had ‘‘stated [in Clarke

v. Commissioner of Correction, 249 Conn. 350, 358,

732 A.2d 754 (1999)], that whether a claim of actual

innocence must be based on newly discovered evidence

is still an open question in our habeas jurisprudence.

In the present case, both parties and the habeas court

acknowledge, explicitly and implicitly, that our appellate courts do require a claim of actual innocence to

be based on newly discovered evidence. See Johnson

v. Commissioner of Correction, 101 Conn. App. 465,

470–71, 922 A.2d 221 (2007). Because the respondent

does not challenge the petitioner’s claim on those

grounds and the habeas court proceeded as if the evidence was newly discovered, we are not called upon

to resolve this question. See Miller v. Commissioner

of Correction, supra, 242 Conn. 789 n.29 (assuming,

without deciding, that actual innocence claim must be

based on new evidence).’’ Mozell v. Commissioner of

Correction, 291 Conn. 62, 81 n.10, 967 A.2d 41 (2009).

The Appellate Court, unlike our Supreme Court, has

held that newly discovered evidence is necessary to

pursue an actual innocence claim via a habeas corpus

petition. ‘‘[A] claim of actual innocence must be based

on newly discovered evidence. Clarke v. Commissioner

of Correction, 43 Conn. App. 374, 379, 682 A.2d 618

(1996), appeal dismissed, 249 Conn. 350, 732 A.2d 754
(1999). [A] writ of habeas corpus cannot issue unless

the petitioner first demonstrates that the evidence put

forth in support of his claim of actual innocence is

newly discovered. Williams v. Commissioner of Correction, 41 Conn. App. 515, 530, 677 A.2d 1 (1996),

appeal dismissed, 240 Conn. 547, 692 A.2d 1231 (1997).

This evidentiary burden is satisfied if a petitioner can

demonstrate, by a preponderance of the evidence, that

the proffered evidence could not have been discovered

prior to the petitioner’s criminal trial by the exercise

of due diligence. . . . Batts v. Commissioner of Correction, [85 Conn. App. 723, 726–27, 858 A.2d 856, cert.

denied, 272 Conn. 907, 863 A.2d 697 (2004)].’’ (Internal

quotation marks omitted.) Johnson v. Commissioner

of Correction, supra, 101 Conn. App. 470. Consequently,

even though the finalresolution of the newly discovered

evidence standard has yet to be addressed by the

Supreme Court, it is beyond argument that insofar as

any Superior Court considering a [claim] of actual innocence in a habeas petition, the matter is closed. The

Appellate Court has spoken, and that precedent is binding in Superior Court unless and until changed by the

Supreme Court.

To summarize, then, the newly discovered evidence

requirement is satisfied if the evidence is: (1) not cumulative; (2) was not available to the petitioner at the

time of his criminal trial; and (3) could not have been

discovered by him at that time through the exercise of

due diligence.

The newly discovered evidence in these petitions that

has been alleged by the petitioner consists entirely of

the testimony of one Ian Wright, currently an inmate

in the Department of Correction and a self-styled ‘‘jailhouse lawyer.’’ Mr. Wright, a convicted felon, testified

in the instant habeas case and reported that, about one

year ago, he engaged inmate Stephen ‘‘Sticky’’ Nelson

in conversation and that Mr. Nelson admitted he had

lied in his testimony before the petitioner’s trial. Putting

aside the obvious credibility issues inherent with this

testimony, it is arguable that the testimony of Mr. Wright

was not available to the petitioner at his trial and, since

the alleged conversation took place some four years

after the conclusion of the petitioner’s trial, could not

have been discovered by him at that time even with the

exercise of due diligence. However, the evidence is

certainly cumulative and cannot be considered newly

discovered.

The discrediting of the testimony of Mr. Nelson was

a key component of the trial strategy of trial defense

counsel, and he did so in a highly professional manner.

Indeed, the cross-examination went a long way to discredit the testimony of Mr. Nelson at trial. Notwithstanding, the petitioner was convicted in large part

because there was DNA evidence linking him to the

crime, cell phone records linking him to the crime and
his evasive answers given to the police as to his location

at the time of the crime. Had inmate Wright been available for trial and testified as he did in the habeas trial,

his testimony, even if deemed credible by the jury (a

most unlikely event, given everything surrounding it)

would not have been likely to have swayed the jury to

an acquittal. Moreover, while inmate Wright’s hearsay

testimony was admissible under § 8-6 (4) of the Connecticut Code of Evidence at the habeas trial only

because inmate Nelson exercised his fifth amendment

right to silence, Nelson did testify at the petitioner’s

criminal trial, so Wright’s testimony would not have

been admissible. Consequently, the ‘‘evidence’’ would

have been cumulative, and the actual innocence claim

falls on that basis.

As a result of all of the foregoing, the petition for

a writ of habeas corpus is, therefore, denied and the

petition dismissed.

* Affirmed. Thompson v. Commissioner of Correction, 172 Conn. App.

139, A.3d (2017).

1 State v. Thompson, 128 Conn. App. 296, 298–99, 17 A.3d 488 (2011), cert.

denied, 303 Conn. 928, 36 A.3d 241 (2012).

2 This may seem to be difficult for a layman to accept, given the oftrepeated phrase that ‘‘one is innocent until proven guilty.’’ However, in a

habeas proceeding, the petitioner is not innocent and has, in fact, been

already proven guilty beyond all reasonable doubt. Moreover, a habeas

petitioner has more likely than not had the opportunity to have at least one

appellate court review the case to determine if there have been any errors

of law that were made by the trial court. Given that a habeas petition is

often called the ‘‘court of last resort,’’ it should not be unexpected that the

burden of showing an irregularity must now rest with the petitioner.

3 Edward I reigned in England in the late thirteenth century A.D.

4 This is a particularly important consideration in the instant case. The

petitioner has had his case reviewed by both the state Appellate and Supreme

Courts. [State v. Thompson, 128 Conn. App. 296, 17 A.3d 488 (2011), cert.

denied, 303 Conn. 928, 36 A.3d 241 (2012).] The majority of the evidence

presented to the court during the habeas trial revolved around what took

place on the evening of [August 10, 2004]. The petitioner was, in essence,

attempting to relitigate matters that have been previously litigated and

affirmed on appeal.

5

‘‘The requirement that guilt of a criminal charge be established by proof

beyond a reasonable doubt dates atleastfrom our early years as a Nation. The

demand for a higher degree of persuasion in criminal cases was recurrently

expressed from ancient times, [though] its crystallization into the formula

beyond a reasonable doubt seems to have occurred as late as 1798. It is

now accepted in common law jurisdictions as the measure of persuasion

by which the prosecution must convince the trier of all the essential elements

of guilt.’’ (Internal quotation marks omitted.) In re Winship, supra, 397

U.S. 361.

6 There is a very recent Appellate Court decision, Hinds v. Commissioner

of Correction, 151 Conn. App. 837, 97 A.3d 986 (Official Release Date: August

5, 2014), that affirmed a decision by a habeas court that ordered a new trial

for a petitioner where the trial court failed to give a Salamon instruction

to the jury. It is this key difference between the instant case and the Hinds

case that does not require this court to follow Hinds.

7 The same line of reasoning shall be applied to the argument that the

petitioner’s appellate counsel was ineffective, thereby causing count three

to fail.

8 Although there is a sort of de facto statute of limitations in that a habeas

petitioner must be ‘‘in the custody of the commissioner’’ in order for the

court to have jurisdiction. See Lebron v. Commissioner of Correction, 274

Conn. 507, 876 A.2d 1178 (2005).

9 General Statutes § 52-582 mandates that: ‘‘No petition for a new trial in

any civil or criminal proceeding shall be brought but within three years

next after the rendition of the judgment or decree complained of, except

that a petition based on DNA (deoxyribonucleic acid) evidence that was
not discoverable or available at the time of the original trial may be brought

at any time after the discovery or availability of such new evidence.’’

Interestingly, the first clause does not mention newly discovered evidence.

10 Accordingly, the requirement in actual innocence claims raised via

habeas corpus of ‘newly discovered’ evidence may be viewed as another

requirement that reflects the same policy reasons. Section 52-582 does not

state that non-DNA based claims must be premised on newly discovered

evidence. Thus, the petition for a new trial with the three year statute of

limitations does not require newly discovered evidence; the petition for a

writ of habeas corpus with no statute of limitations requires newly discovered evidence.