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EDWARD PARKER v. COMMISSIONER

OF CORRECTION

(AC 37534)

Beach, Keller and Bear, Js.

Argued September 9—officially released November 15, 2016

(Appeal from Superior Court, judicial district of

Tolland, Cobb, J. [summary judgment]; Fuger, J.

[motion to vacate order, judgment dismissing petition].)

W. Theodore Koch III, assigned counsel, forthe appellant (petitioner).

Melissa L. Streeto, senior assistant state’s attorney,

with whom, on the brief, were Peter A. McShane, state’s

attorney, and David M. Carlucci, senior assistant state’s

attorney, for the appellee (respondent).
Opinion

BEAR, J. The petitioner, Edward Parker, appeals

from the judgment of the habeas court dismissing his

third petition for a writ of habeas corpus.1 On appeal,

the petitioner claims that (1) the habeas court, Cobb,

J., erred in rendering summary judgment on counts one

and two of that petition, in which he alleged ineffective

assistance of his trial counsel and first habeas counsel,

respectively, because his third petition was a successive

petition as to those counts; and (2) the habeas court,

Fuger, J., erred in granting the motion, filed by the

respondent, the Commissioner of Correction, to dismiss

count three of that petition, in which the petitioner

alleged ineffective assistance of his second habeas

counsel, under the doctrines of res judicata and collateral estoppel. We conclude that the court properly

granted the respondent’s motion for summary judgment

on counts one and two because the third petition was

a successive petition as to those counts. Additionally,

we conclude that the court also properly dismissed

count three on the alternative ground of collateral

estoppel.2 We therefore affirm the judgment of the

habeas court.

The following factual and procedural background is

relevant to our resolution of the petitioner’s appeal. On

July 20, 1999, the petitioner pleaded guilty under the

Alford doctrine3

to murder in violation of General Statutes § 53a-54a (a), and the court,Iannotti, J., sentenced

him in accordance with a plea agreement to thirty years

incarceration in the custody of the respondent. At the

sentencing hearing, the defendant sought new counsel

and to withdraw his plea. See State v. Parker, 67 Conn.

App. 351, 353, 786 A.2d 1252 (2001), cert. denied, 259

Conn. 922, 792 A.2d 855 (2002), cert. denied, 537 U.S.

838, 123 S. Ct. 155, 154 L. Ed. 2d 59 (2002). The court

denied each request. Id. The petitioner thereafter

appealed and claimed that his plea was not made knowingly, intelligently, and voluntarily. Id. This court

affirmed his conviction. Id., 357.

This is the petitioner’s third habeas corpus petition

since his conviction. In this petition, he alleges ineffective assistance of his trial counsel, Stephen Gionfriddo;

his first habeas counsel, Michael D’Onofrio; and his

second habeas counsel, Thomas Mullaney. We describe

the petitioner’s habeas cases in turn.

In 2000, the petitioner filed his first petition for a writ

of habeas corpus. Parker v. Warden, Superior Court,

judicial district of New Haven, Docket No. CV-00-

0439172-S (January 24, 2003) (Parker I). In his third

amended two count petition in that proceeding, he

alleged both ineffective assistance of trial counsel and

actual innocence. The petitioner claimed that trial counsel: (1) did not adequately advise him of his option to

plead guilty or to proceed to trial; (2) did not adequately
advise him concerning the consequences of his plea;

(3) failed to ensure that his plea was made knowingly,

intelligently, and voluntarily; (4) did not adequately

advise him of the elements of murder; (5) did not conduct a sufficient investigation into possible defenses;

(6) failed to conduct a sufficient investigation into the

elements of the prosecution’s proof or of his case; and

(7) failed to conduct a sufficient investigation by not

speaking to certain witnesses.

After a trial, the first habeas court denied the petition

for a writ of habeas corpus, concluding that trial counsel’s representation did not amount to ineffective assistance; that the petitioner failed to prove any of the

allegations in his petition; and that he did not prove

prejudice. The court also found that the petitioner had

failed to prove by clear and convincing evidence that

he was actually innocent of murder, the crime to which

he pleaded guilty and of which he was convicted. Following the first habeas court’s denial of his petition for

certification to appeal, this court dismissed his appeal,

and our Supreme Court denied certification to appeal.

See Parker v. Commissioner of Correction, 83 Conn.

App. 905, 853 A.2d 652 (2004), cert. denied, 281 Conn.

912, 916 A.2d 54 (2007).

In 2005, the petitioner filed his second petition for a

writ of habeas corpus. Parker v. Warden, Superior

Court, judicial district of Tolland, Docket No. CV-05-

4000487-S (January 5, 2009) (Parker II). In his amended

petition in that proceeding, he alleged both ineffective

assistance of trial counsel and ineffective assistance of

first habeas counsel. He claimed that trial counsel was

ineffective because he failed to (1) file a motion to

suppress the petitioner’s statements and other evidence

obtained during a stop and search of his vehicle; and

(2) advise the petitioner about proceeding with a motion

to suppress, and, if the court denied that motion, then

entering a nolo contendere plea, which would permit

him to appeal the denial of that motion to suppress. As

to first habeas counsel, the petitioner claimed that he

was ineffective for failing to raise these issues in the

first habeas petition.

After a hearing, the second habeas court found that

the petitioner was unlikely to prevail on the motion to

suppress the petitioner’s statements and other evidence, trial counsel discussed this with him, and, thus,

trial counsel was not ineffective in failing to pursue the

motion. This court dismissed the petitioner’s appeal

from the second habeas court’s judgment, and our

Supreme Court denied certification to appeal. See Parker v. Commissioner of Correction, 124 Conn. App.

905, 4 A.3d 354, cert. denied, 299 Conn. 911, 10 A.3d

527 (2010).4

On August 1, 2011, the then self-represented petitioner filed a third petition for a writ of habeas corpus,

which is the subject of the present appeal. The habeas
court appointed counsel for him. On October 16, 2013,

the petitioner amended his petition, claiming that his

trial counsel was ineffective because he failed to (1)

investigate the facts and circumstances of his statements to law enforcement officers, and the facts and

circumstances concerning the search of his vehicle;

(2) research legal and factual grounds for a motion to

suppress his statements to law enforcement officers

and also to suppress any additional evidence discovered

in the search of his vehicle; (3) adequately advise him

about the grounds for moving to suppress such evidence; (4) adequately advise him of the option to file

a motion to suppress; and (5) adequately advise him

about whether to accept the plea deal. He also claimed

ineffective assistance of first and second habeas counsel for failing to argue trial counsel’s ineffectiveness

under the Strickland-Hill standard5

for ineffective

assistance of counsel.

On November 13, 2013, the respondent filed a motion

for summary judgment, pursuant to Practice Book § 23-

37,6

in which he alleged both that the third amended

petition was a successive petition and that the doctrines

of res judicata and collateral estoppel barred the claims

contained therein. Following a hearing on the motion,

the habeas court, Cobb, J., found that count one concerning trial counsel and count two concerning first

habeas counsel constituted successive petitions and

granted summary judgment against the petitioner on

those counts. As to count three concerning second

habeas counsel, however, the court denied the respondent’s motion for summary judgment because no prior

claims had been made against second habeas counsel,

and, therefore, the count was not barred as successive

or by res judicata.

On June 4, 2014, the court, Fuger, J., rendered judgment denying the petition for a writ of habeas corpus.

The court concluded that it could not grant relief to

the petitioner on count three because judgment had

been rendered against him on his claims that trial counsel and first habeas counsel were ineffective as alleged

in counts one and two of his third petition, and the

judgment rendered on counts one and two was binding

on the court.

The petitioner filed a motion to open the judgment

rendered by the court, Fuger, J. On July 21, 2014, the

court granted the petitioner’s motion to open the judgment and restored count three to the docket; however,

the court also gave notice that a good cause determination would have to be made under General Statutes

§ 52-470 (b) (1)7 before count three could proceed to

trial, and it ordered the parties to submit arguments on

the good cause issue. On July 29, 2014, the court, Fuger,

J., denied a motion to vacate the order requiring good

cause submissions, finding § 52-470 (b) (1) to be applicable to the petitioner’s operative petition. The respon-
dent filed a motion to dismiss pursuant to § 52-470 (b)

(1) on August 19, 2014, arguing that good cause to

proceed was not present because the factual basis for

the claims asserted by the petitioner had already been

raised before and determined by the prior habeas courts

against him. The petitioner countered that there was

good cause to proceed because the claims he asserted

in his third petition had not been presented to a court.

Specifically, he argued that first and second habeas

counsel relied on the Strickland standard,8 whereas the

applicable law to be applied was the Strickland-Hill

standard. After a hearing, the court found that the petitioner failed to make a showing of good cause to proceed to trial and, alternatively, that the claims set forth

in the petition were successive or were barred by the

doctrines of res judicata and collateral estoppel. Thereafter, the third habeas court granted certification to

appeal, and this appeal followed.

Additional facts will be discussed where relevant to

the issues raised by the petitioner.

I

The petitioner argues that the habeas court erred

when it rendered summary judgment on counts one

and two because they were successive. Our standard

of review of a summary judgment is well established.

‘‘[S]ummary judgment shall be rendered forthwith if

the pleadings, affidavits and any other proof submitted

show that there is no genuine issue as to any material

fact and that the moving party is entitled to judgment

as a matter of law. . . . Our review of the trial court’s

decision to grant [a] motion for summary judgment is

plenary.’’ (Internal quotation marks omitted.) Gonzalez

v. O & G Industries, Inc., 322 Conn. 291, 301–302, 140

A.3d 950 (2016); see also Practice Book § 23-37.

A habeas petition is successive if it is based on the

same grounds as those raised in a prior petition. Zollo

v. Commissioner of Correction, 133 Conn. App. 266,

276, 35 A.3d 337, cert. granted on other grounds, 304

Conn. 910, 39 A.3d 1120 (2012) (appeal dismissed May

1, 2013). ‘‘Practice Book § 23-29 (3)9 provides that a

petition may be dismissed by the court if the petition

presents the same ground as a prior petition previously

denied and fails to state new facts or to proffer new

evidence not reasonably available at the time of the

prior petition . . . .’’ (Emphasis omitted; footnote

added; internal quotation marks omitted.) Id., 278.

‘‘[A] petitioner may bring successive petitions on the

same legal grounds if the petitions seek different relief.

. . . But where successive petitions are premised on

the same legal grounds and seek the same relief, the

second petition will not survive a motion to dismiss

unless the petition is supported by allegations and facts

not reasonably available to the petitioner at the time

of the original petition.’’(Internal quotation marks omit-
ted.) Wright v. Commissioner of Correction, 147 Conn.

App. 510, 515, 83 A.3d 1166, cert. denied, 311 Conn. 922,

86 A.3d 467 (2014). We have applied the same standard

to successive habeas petitions challenged by motions

for summary judgment instead of by motions to dismiss.

Tirado v. Commissioner of Correction, 24 Conn. App.

152, 155–56, 586 A.2d 625 (1991).

‘‘A ‘ground’ is a sufficient legal basis for granting the

relief sought. . . . Identical grounds may be proven

by different factual allegations, supported by different

legal arguments or articulated in different language.

. . . They raise, however, the same generic legal basis

forthe same relief.’’(Internal quotation marks omitted.)

James L. v. Commissioner of Correction, 245 Conn.

132, 141, 712 A.2d 947 (1998). ‘‘Put differently, two

grounds are not identical if they seek different relief.

. . . Simply put, an applicant must show that his application does, indeed, involve a different legal ground,

not merely a verbal reformulation of the same ground.’’

(Citation omitted; internal quotation marks omitted.)

Carter v. Commissioner of Correction, 133 Conn. App.

387, 393, 35 A.3d 1088, cert. denied, 307 Conn. 901, 53

A.3d 217 (2012).

We note that ‘‘[b]ecause both prongs [of Strickland]

must be established for a habeas petitioner to prevail,

a court may dismiss a petitioner’s claim if he fails to

meet either prong. . . . Accordingly, a court need not

consider the prejudice prong if it determines that the

petitioner has failed to meet the burden of proving

deficient performance.’’ (Citation omitted; internal quotation marks omitted.) Johnson v. Commissioner of

Correction, 144 Conn. App. 365, 370, 73 A.3d 776, cert.

denied, 310 Conn. 918, 76 A.3d 633 (2013).

In the first habeas action, the petitioner claimed ineffective assistance of trial counsel for failing to advise

him of his option to plead guilty or to go to trial. See

Parker I, supra, Superior Court, Docket No. CV-00-

0439172-S. The first habeas court fully adjudicated that

claim on the merits and resolved it against the petitioner. See id. In the second habeas action, the petitioner claimed ineffective assistance of trial counsel for

failing to file a motion to suppress evidence of the

petitioner’s statements to law enforcement officers and

to suppress evidence obtained in a search of his vehicle,

for failing to file a motion to suppress, and for failing

to advise him to go forward with that motion and, if

unsuccessful, to enter a nolo contendere plea. See Parker II, supra, Superior Court, Docket No. CV-05-

4000487-S. The petitioner also claimed ineffective assistance of first habeas counsel for failing to raise these

claims to establish trial counsel’s deficient performance. Id. The second habeas court fully adjudicated

those claims on the merits and resolved them against

the petitioner. Id. In the present habeas proceeding,

the petitioner claims that his first habeas counsel was
ineffective for arguing his claims under the Strickland

standard ratherthan underthe Strickland-Hill standard

because the standard for determining prejudice is different. Both standards, however, require the petitioner to

prove that first habeas counsel’s and trial counsel’s

performance was deficient. See Hill v. Lockhart, 474

U.S. 52, 58–59, 106 S. Ct. 366, 88 L. Ed. 203 (1985)

(in proving ineffective assistance of counsel in plea

negotiation process petitioner must demonstrate counsel’s performance fell below an objective standard of

reasonableness [deficiency] and but for counsel’s errors

petitioner would not have pleaded guilty but instead

would have insisted on going to trial [prejudice]); and

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.

2052, 80 L. Ed. 2d 674 (1984) (in proving ineffective

assistance of counsel at trial or in sentencing proceedings petitioner must demonstrate counsel’s performance was deficient and counsel’s deficient

performance prejudiced his defense). The first habeas

court and the second habeas court each determined

that trial counsel’s performance was not deficient. See

Parker I, supra; Parker II, supra. Additionally, the second habeas court determined that first habeas counsel’s

performance was not deficient. See Parker II, supra.

The petitioner seeks to relitigate his claims as to trial

counsel and first habeas counsel on the same legal

grounds, and he seeks the same legal relief in his third

amended petition in this case. He has failed to allege

facts or claims that were unavailable to him at the

time of his prior petitions. Additionally, allowing the

petitioner to argue a different standard of prejudice in

this proceeding would not change the result, as the

issue of the deficiency of trial counsel’s and first habeas

counsel’s performance has been resolved against him.

Johnson v. Commissioner of Correction, supra, 144

Conn. App. 370.

Accordingly, having compared the petition in this

case to the prior petitions and having determined that

they raise the same grounds and seek the same relief,

we conclude that the habeas court in this case properly

rendered summary judgment on counts one and two

because both counts are impermissible successive

claims.

II

The petitioner also claims that the habeas court,

Fuger, J., in the present case improperly dismissed

count three of his third petition10 under the doctrines

of res judicata and collateral estoppel. In that count,

the petitioner claims that his second habeas counsel’s

performance was deficient when he argued that the

performance of both first habeas counsel and trial counsel was deficient because of their reliance on and use

of the Strickland standard rather than the StricklandHill standard. The petitioner has not previously brought

an ineffective assistance of counsel claim against his
second habeas counsel. Consequently,res judicata does

not bar such a claim. See Johnson v. Commissioner of

Correction, 168 Conn. App. 294, 310, A.3d (2016)

(res judicata limited in habeas cases to claims actually

raised and litigated in earlier proceeding). Nevertheless,

the related doctrine of collateral estoppel precludes the

petitioner from raising the issue of whether second

habeas counsel was ineffective for failing to argue

claims against first habeas counsel and trial counsel

based on the Strickland-Hill standard. Accordingly, we

affirm the dismissal of count three.

‘‘The conclusions reached by the trial court in its

decision to dismiss [a] habeas petition are matters of

law, subject to plenary review. . . . [When] the legal

conclusions of the court are challenged, [the reviewing

court] must determine whether they are legally and

logically correct . . . and whether they find support

in the facts that appear in the record. . . . To the extent

that factual findings are challenged, this court cannot

disturb the underlying facts found by the habeas court

unless they are clearly erroneous . . . . [A] finding of

fact is clearly erroneous when there is no evidence in

the record to support it . . . or when although there

is evidence to support it, the reviewing court on the

entire evidence is left with the definite and firm conviction that a mistake has been committed.’’ (Internal quotation marks omitted.) Brewer v. Commissioner of

Correction, 162 Conn. App. 8, 13, 130 A.3d 882 (2015).

‘‘The common-law doctrine of collateral estoppel, or

issue preclusion, embodies a judicial policy in favor of

judicial economy, the stability of former judgments and

finality. . . . Collateral estoppel . . . is that aspect of

res judicata which prohibits the relitigation of an issue

when that issue was actually litigated and necessarily

determined in a prior action between the same parties

upon a different claim. . . . For an issue to be subject

to collateral estoppel, it must have been fully and fairly

litigated in the first action. It also must have been actually decided and the decision must have been necessary

to the judgment. . . .

‘‘An issue is actually litigated if it is properly raised

in the pleadings or otherwise, submitted for determination, and in fact determined. . . . An issue is necessarily determined if, in the absence of a determination of

the issue, the judgment could not have been validly

rendered. . . . [C]ollateral estoppel [is] based on the

public policy that a party should not be able to relitigate

a matter which it already has had an opportunity to

litigate. . . . Stability in judgments grants to parties

and others the certainty in the management of their

affairs which results when a controversy is finally laid

to rest.’’ (Citation omitted; internal quotation marks

omitted.) Johnson v. Commissioner of Correction,

supra, 168 Conn. App. 310–11. ‘‘[A]lthough most

defenses cannot be considered on a motion to dismiss,
a trial court can properly entertain a . . . motion to

dismiss that raises collateral estoppel grounds.’’ (Internal quotation marks omitted.) Wilcox v. Webster Ins.,

Inc., 294 Conn. 206, 223, 982 A.2d 1053 (2009).

In the present case, the claim involving second

habeas counsel is barred by collateral estoppel because

the judgment in the first habeas case brought against

trial counsel and the judgment in the second habeas

case brought against trial counsel and first habeas counsel necessarily resolved issues that would require relitigation if the claim involving second habeas counsel

were to proceed. ‘‘To succeed in his bid for a writ of

habeas corpus, the petitioner must prove both (1) that

his appointed habeas counsel was ineffective, and (2)

that his trial counsel was ineffective. . . . Only if the

petitioner succeeds in what . . . is a herculean task

will he receive a new trial.’’ (Internal quotation marks

omitted.) Kearney v. Commissioner of Correction, 113

Conn. App. 223, 238–39, 965 A.2d 608 (2009).

Successive petitions for a writ of habeas corpus based

on ineffective assistance of multiple counsel impose

significant challenges on the petitioner. ‘‘[When]

applied to a claim of ineffective assistance of prior

habeas counsel, the Strickland standard requires the

petitioner to demonstrate that his prior habeas counsel’s performance was ineffective and that this ineffectiveness prejudiced the petitioner’s prior habeas

proceeding. . . . [T]he petitioner will have to prove

that one or both of the prior habeas counsel, in presenting his claims, was ineffective and that effective

representation by habeas counsel establishes a reasonable probability that the habeas court would have found

that he was entitled to reversal of the conviction and

a new trial . . . . Therefore . . . a petitioner claiming ineffective assistance of habeas counsel on the basis

of ineffective assistance of [trial] counsel must essentially satisfy Strickland twice: he must prove both (1)

that his appointed habeas counsel was ineffective, and

(2) that his [trial] counsel was ineffective.’’ (Citations

omitted; internal quotation marks omitted.) Mukhtaar

v. Commissioner of Correction, 158 Conn. App. 431,

438–39, 119 A.3d 607 (2015). Accordingly, when a petitionerfails to prove after a habeas trial that trial counsel

provided him ineffective assistance, that petitioner cannot as a matter of law prove prejudice resulting solely

from the first and second habeas counsel’s alleged failure to raise claims against trial counsel on the same

grounds. See Johnson v. Commissioner of Correction,

supra, 168 Conn. App. 300 (summarizing Johnson v.

Commissioner of Correction, supra, 144 Conn. App.

365).

The petitioner argues that second habeas counsel was

ineffective in failing to allege that first habeas counsel

failed to argue that trial counsel was ineffective under

the Strickland-Hill standard. Assuming, arguendo, that
this is true, the petitioner still must prove that trial

counsel’s performance was deficient, which he twice

has failed to do, to succeed on his claim. Again, the

difference between the Strickland standard and the

Strickland-Hill standard is the prejudice prong. To

establish that first and second habeas counsel were

ineffective, the petitioner would be required to prove,

as he pleaded, that trial counsel was ineffective for

failing to (1) investigate the facts and circumstances of

his statements to law enforcement and the search of

his vehicle; (2) research legal and factual grounds for

a motion to suppress his statements to law enforcement

or any evidence discovered in the search of his vehicle;

(3) adequately advise him about grounds for moving to

suppress such evidence; (4) adequately advise him of

the option to file a motion to suppress; and (5) adequately advise him about whether to accept the plea

deal. The court, Nazzaro, J., found in the second habeas

case that (1) the petitioner was not in custody when

he made incriminating statements, (2) he consented to

the search of his vehicle, and (3) trial counsel was not

ineffective for failing to file a motion to suppress the

evidence obtained through the petitioner’s statements

and the search, or by not advising the petitioner to go

forward with such a motion. Because the petitioner

failed to prove any of these allegations, none of the

habeas courts had to reach the issue of whether there

was any prejudice to the petitioner under either

standard.

We therefore conclude that the first and second

habeas courts, inter alia, necessarily decided against

the petitioner that trial counsel’s performance was not

deficient. The second habeas court’s determination

included the petitioner’s statements to law enforcement

officers, the search of his car, and the issues concerning

the suppression of such evidence. Collateral estoppel

precludes the petitioner from relitigating the same

claims as part of his claim against second habeas counsel. Additionally, we also conclude that because the

first habeas court necessarily decided the underlying

issue of whether trial counsel adequately advised the

petitioner of whether to plead guilty or to go to trial,

collateral estoppel also precludes the petitioner from

relitigating the same claims as part of his claim against

second habeas counsel. With all of his claims against

second habeas counsel in count three barred by collateral estoppel, the third habeas court did not errin granting the respondent’s motion to dismiss that count.

The petitioner’s claims against trial counsel and first

habeas counsel are barred as successive, and the doctrine of collateral estoppel bars his claims against second habeas counsel. Accordingly, the third habeas court

properly rendered summary judgment on counts one

and two, and properly dismissed count three.

The judgment is affirmed.
In this opinion the other judges concurred.

1 The habeas court granted the petitioner’s claim for certification to appeal.

See General Statutes § 52-470.

2 The petitioner also appeals from the court’s (Fuger, J.) order for good

cause submissions by each party pursuant to General Statutes § 52-470 (b),

and its finding that there was no good cause for count three. Because we

affirm the dismissal of count three on the ground of collateral estoppel, we

do not reach the merits of these arguments.

3 North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162

(1970). ‘‘A defendant who pleads guilty under the Alford doctrine does not

admit guilt but acknowledges that the state’s evidence against him is so

strong that he is prepared to accept the entry of a guilty plea.’’ (Internal

quotation marks omitted.) State v. Webb, 62 Conn. App. 805, 807 n.1, 772

A.2d 690 (2001).

4 Prior to filing the habeas petition at issue in this appeal, the petitioner

made two other attacks on his conviction and sentence. He filed a motion

to correct an illegal sentence, which was denied, and that denial was affirmed

on appeal. See State v. Parker, 295 Conn. 825, 992 A.2d 1103 (2010). He also

filed a habeas corpus petition in federal court, which alleged ineffective

assistance of trial counsel for failing to file a motion to suppress and, if

that motion were unsuccessful, failing to negotiate a plea of nolo contendere.

Parker v. Alves, United States District Court, Docket No. 3:11CV745 (DJS)

(D. Conn. June 6, 2013). The District Court denied his petition. Id.

5 See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L.

Ed. 2d 674 (1984), and Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 88

L. Ed. 2d 203 (1985).

6 Practice Book § 23-37 provides: ‘‘At any time after the pleadings are

closed, any party may move for summary judgment, which shall be rendered

if the pleadings, affidavits and any other evidence submitted show that there

is no genuine issue of material fact between the parties requiring a trial and

the moving party is entitled to judgment as a matter of law.’’

7 General Statutes § 52-470 (b)(1) provides: ‘‘Afterthe close of all pleadings

in a habeas corpus proceeding, the court, upon the motion of any party or,

on its own motion upon notice to the parties, shall determine whether there

is good cause for trial for all or part of the petition.’’

8 Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed.

2d 674 (1984).

9 Practice Book § 23-29 provides in relevant part: ‘‘The judicial authority

may, at any time, upon its own motion or upon motion of the respondent,

dismiss the petition, or any count thereof, if it determines that . . . (3) the

petition presents the same ground as a prior petition previously denied and

fails to state new facts or proffer new evidence not reasonably available at

the time of the prior petition . . . .’’

10 At this point in the procedural history, the only count remaining and

before the court was count three.