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******************************************************
NABEEL KADDAH v. COMMISSIONER OF

CORRECTION

(SC 19512)

Rogers, C. J., and Palmer, Eveleigh, McDonald and Robinson, Js.*

Argued October 11, 2016—officially released January 31, 2017

Andrew P. O’Shea, with whom was Damon A. R.

Kirschbaum, for the appellant (petitioner).

James A. Killen, senior assistant state’s attorney,

with whom, on the brief, were John C. Smriga, state’s

attorney, and Craig P. Nowak, senior assistant state’s

attorney, for the appellee (respondent).
Opinion

ROBINSON, J. The sole issue in this appeal is whether

Connecticut law permits a third petition for a writ of

habeas corpus (third habeas) to vindicate a claim of

ineffective assistance of counsel during what is commonly known as a ‘‘habeas on a habeas,’’ namely, a

second petition for a writ of habeas corpus (second

habeas) challenging the performance of counsel in litigating an initial petition for a writ of habeas corpus

(first habeas), which had claimed ineffective assistance

of counsel at the petitioner’s underlying criminal trial

or on direct appeal. See Lozada v. Warden, 223 Conn.

834, 843, 613 A.2d 818 (1992). The petitioner, Nabeel

Kaddah,1 appeals2from the judgment of the habeas

court dismissing his third habeas petition alleging, inter

alia, ineffective assistance of habeas counsel during

litigation of his second habeas petition. On appeal, the

petitioner claims that the habeas court improperly

determined that the statutory right of indigent habeas

petitioners to counsel under General Statutes § 51-296

(a)3

is limited to ‘‘effective representation by . . . first

habeas counsel,’’ thus rendering the third habeas petition challenging counsel’s performance in the second

habeas proceeding not cognizable as a matter of law.

Given the concession by the respondent, the Commissioner of Correction (commissioner), that § 51-296 (a)

provides a statutory right to assigned counsel in a second habeas proceeding that necessarily includes the

right to competent counsel, we conclude that our common law authorizes a third habeas petition as a proper

vehicle to vindicate that right. Accordingly, we reverse

the judgment of the habeas court dismissing the counts

of the third habeas petition that claimed ineffective

assistance of prior habeas counsel.4

The record reveals the following relevant facts and

procedural history. Following a jury trial, the petitioner

was convicted of murder, attempted murder, and unlawful restraint in the first degree. See State v. Kaddah,

250 Conn. 563, 564, 736 A.2d 902 (1999). This court

subsequently affirmed the petitioner’s conviction on

direct appeal. Id., 581. The petitioner, then represented

by Attorney Salvatore Adamo, filed his first habeas petition alleging ineffective assistance of counsel at his trial

and on direct appeal. See Kaddah v. Commissioner of

Correction, 105 Conn. App. 430, 433–34, 939 A.2d 1185,

cert. denied, 286 Conn. 903, 943 A.2d 1101 (2008) (Kaddah I). The habeas court, White, J., denied the first

habeas petition, along with the petitioner’s petition for

certification to appeal. See Kaddah v. Commissioner

of Correction, 299 Conn. 129, 132, 7 A.3d 911 (2010)

(Kaddah II). The petitioner appealed from Judge

White’s denial of the first habeas petition to the Appellate Court, but withdrew that appeal before that court

rendered judgment. Id., 132–33.

The petitioner, represented by Attorney Joseph
Visone, then filed a second habeas petition alleging

ineffective assistance of habeas counsel by Attorney

Adamo in the first habeas proceeding.5 Kaddah I, supra,

105 Conn. App. 434. The habeas court, Fuger, J., denied

this petition, along with the petitioner’s petition for

certification to appeal. Id. The Appellate Court subsequently dismissed the petitioner’s appeal from the

denial of the second habeas petition, concluding that

Judge Fuger had not abused his discretion by denying

the petitioner’s petition for certification to appeal.

Id., 446.

The petitioner later filed the third habeas petition6

alleging, inter alia,7that Attorney Visone had rendered

ineffective assistance during litigation of his second

habeas petition by failing to raise certain claims relating

to the jury instructions used at his criminal trial. After

a three day habeas trial, the habeas court, sua sponte,

asked the parties to brief ‘‘the question of whether the

petition’s allegations assert a cognizable habeas corpus

claim for which this court can provide relief.’’ See Practice Book § 23-29 (2). Specifically, the habeas court

questioned whether this court’s decision in Lozada v.

Warden, supra, 223 Conn. 834, ‘‘which recognized the

viability of a habeas corpus claim of ineffective assistance of first habeas counsel, [should] be extended ad

infinitum.’’ (Emphasis omitted.) The petitioner and the

commissioner subsequently filed posttrial briefs in

which they agreed that the petitioner’s claim in his third

habeas petition was cognizable under Lozada.

8 Despite

the parties’ agreement on this point, the habeas court

nevertheless concluded that the petitioner had failed

to state a cognizable claim and dismissed the remaining

counts of the third habeas petition. See footnote 4 of

this opinion.

In its memorandum of decision, the habeas court

began its analysis with this court’s decision in Lozada

v. Warden, supra, 223 Conn. 834, which authorized

habeas on habeas petitions, and the Appellate Court’s

decision in Sinchak v. Commissioner of Correction,

126 Conn. App. 684, 692, 14 A.3d 343 (2011), which held

that § 51-296 (a) requires the appointment of counsel

for such petitions. The habeas court declined, however,

‘‘to apply the same rubric used by the Supreme Court

in Lozada to the [Appellate Court’s] holding in Sinchak

and conclude, therefore, because a [second habeas]

petitioner has a right to appointment of habeas counsel

under § 51-296 (a), that the petitioner must also have

the companion right to habeas corpus relief based on

the poor performance of second habeas counsel

through a third habeas [proceeding].’’ The habeas court

determined that this ‘‘syllogistic reasoning’’ would have

the ‘‘absurd result’’ of fostering infinite habeas claims,

which would defy ‘‘concepts of certainty, finality, and

judicial economy.’’ The habeas court determined that

‘‘it would stretch the meaning of the phrase ‘arising

from a criminal matter’ [as used in § 51-296 (a)] beyond
all linguistic boundaries to interpret that phrase to mean

‘arising from a habeas proceeding which arose from a

habeas proceeding . . . which arose from a criminal

matter,’ ad infinitum. The more rational and plausible

construction of that ambiguous phrase is that the legislature only had a first level habeas claim in mind when

it created the statutory right to counsel and never

intended to create a system of ineffective assistance

claims in habeas cases [that] resembles the Russian

Matryoshka dolls, each embraced within a more expansive one, without end.’’ (Emphasis omitted.) Accordingly, the habeas court concluded that the petitioner’s

allegations did not raise a cognizable habeas corpus

claim for which the court could provide relief, and rendered judgment dismissing the remaining counts of the

third habeas petition. The habeas court subsequently

granted the petitioner’s petition for certification to

appeal, and this appeal followed. See footnote 2 of

this opinion.

On appeal, the petitioner,relying primarily on Lozada

v. Warden, supra, 223 Conn. 834, and Sinchak v. Commissioner of Correction, supra, 126 Conn. App. 684,

claims that the habeas court improperly determined

that § 51-296 (a) did not afford him a right to competent

counsel for his second habeas petition that could be

vindicated by a third habeas petition. The petitioner

argues that any other reading of the broad statutory

language of § 51-296 (a), namely, ‘‘any habeas corpus

proceeding arising from a criminal matter,’’ would renderthe right to counsel in the second habeas proceeding

illusory and foster the absurd result of allowing the

appointment of incompetent counsel to represent petitioners in that proceeding. The petitioner contends that

the habeas court’s concern of infinite habeas on habeas

petitions is addressed by existing procedures, such as

dismissals under the doctrines of collateral estoppel,

successive petitions, and for frivolous pleading, along

with the amendments to General Statutes § 52-4709 via

the 2012 habeas reform legislation. See Public Acts

2012, No. 12-115, § 1. The petitioner further emphasizes

that the legislature took no action to limit the right to

counsel under § 51-296 (a) when it enacted the 2012

habeas reform measures subsequent to the Appellate

Court’s decision in Sinchak.

In response, the commissioner concedes the correctness of Sinchak v. Commissioner of Correction, supra,

126 Conn. App. 684, in which the Appellate Court held

that § 51-296 (a) provides a right to counsel in a second

habeas proceeding. The commissioner also acknowledges that the Appellate Court’s holding in Sinchak

necessarily encompasses the right to assistance by competent counsel in the second habeas proceeding.

Retreating from the concession made before the habeas

court; see footnote 8 of this opinion; the commissioner

contends, however, that a claim of ineffective assistance of second habeas counsel is not a cognizable
basis for habeas relief under Connecticut law. Specifically, the commissioner argues that nothing in the text

or legislative history of § 51-296 (a) indicates that the

legislature intended to authorize a third habeas petition

to vindicate such a right.10 The commissioner also relies

on In re Jonathan M., 255 Conn. 208, 209, 764 A.2d 739

(2001), a termination of parental rights case, in support

ofthe proposition thatthe existence of a right to counsel

in a given situation does not mean that a habeas corpus

petition is available to vindicate that right. To this end,

the commissioner agrees with the finality concerns

stated by the habeas court, and argues that, as a matter

of the fundamental fairness that underlies the commonlaw habeas remedy, we should decline to permit habeas

petitions raising claims of ineffective assistance beyond

the second habeas petition alleging ineffective assistance because such claims are extremely difficult to

prove, meaning that the utility of allowing such petitions

is outweighed by the associated costs on the judicial

system, including assigned counsel, victims, and witnesses. We, however, agree with the petitioner, and

conclude that a third habeas petition is available as a

matter of fundamental fairness to vindicate the statutory right under § 51-296 (a) to competent counsel in

litigating a second habeas petition.

Whether a habeas court properly dismissed a petition

pursuant to Practice Book § 23-29 (2), on the ground

that it ‘‘fails to state a claim upon which habeas corpus

relief can be granted,’’ presents a question of law over

which our review is plenary. See, e.g., Zollo v. Commissioner of Correction, 133 Conn. App. 266, 276–77, 35

A.3d 337, cert. granted, 304 Conn. 910, 39 A.3d 1120

(2012) (appeal dismissed May 1, 2013); accord Kaddah

II, supra, 299 Conn. 140.

Before considering whether a third habeas petition

is a cognizable remedy, we ordinarily would begin by

determining the existence or scope of the statutory

right to counsel at issue in the second habeas petition

under § 51-296 (a). This inquiry is, however, unnecessary in this appeal because the commissioner concedes

that, in Sinchak v. Commissioner of Correction, supra,

126 Conn. App. 692, the Appellate Court properly determined that, under § 51-296 (a), there is a right to counsel

in a second habeas proceeding brought pursuant to

Lozada v. Warden, supra, 223 Conn. 834, and that right

to counsel necessarily encompasses the right to competent counsel. We exercise our discretion11 to accept this

significant concession12 because it is consistent with

our case law holding that it ‘‘would be absurd to have

the right to appointed counsel who is not required to

be competent,’’ and that ‘‘§ 51-296 (a) would become

an empty shell if it did not embrace the right to have

the assistance of a competent attorney.’’ Id., 838–39;

see also Gipson v. Commissioner of Correction, 257

Conn. 632, 639 n.14, 778 A.2d 121 (2001) (‘‘although the

state disputes the petitioner’s claim of a right to counsel
in connection with the filing of a petition for certification, the state does not dispute the principle that the

right to counsel, if such right exists, includes the right

to competent counsel’’); State v. Anonymous, 179 Conn.

155, 160, 425 A.2d 939 (1979) (holding in termination

of parental rights case that ‘‘[w]here . . . as here, a

statute . . . or practice book rule . . . mandates the

assistance of counsel, it is implicit that this means competent counsel’’ [citations omitted]). Simply put, we

agree with the parties that nothing in the text of § 51-

296 (a) or our state’s appellate case law interpreting

that provision provides any basis for the habeas court’s

conclusion that a petitioner has the right to counsel in

a second habeas petition, but not the right to effective

assistance from that attorney. Accordingly, we turn to

the commissioner’s contention that a third habeas petition may not be used to vindicate the right to competent

counsel in prosecuting a second habeas petition.

In determining whether a third habeas petition is an

available remedy to enforce the right to the effective

assistance of counsel in a second habeas proceeding,

we begin with Lozada v. Warden, supra, 223 Conn. 834.

In Lozada, this court concluded that a second habeas

petition is an available remedy to vindicate a claim of

ineffective assistance of counsel in prosecuting a first

habeas petition claiming ineffective assistance at trial or

on direct appeal. Id., 843. In rejecting the respondent’s

argument that the writ of habeas corpus is ‘‘reserved

solely for claims arising under the constitution,’’ and

is, therefore, ‘‘not available’’ to vindicate the statutory

right to counsel in a habeas corpus proceeding under

§ 51-296 (a),13 we observed that ‘‘the writ of habeas

corpus is available as a remedy for a miscarriage of

justice or other prejudice. . . . As this court stated in

Bunkley v. Commissioner of Correction, 222 Conn. 444,

460–61, 610 A.2d 598 (1992), the principal purpose of

the writ of habeas corpus is to serve as a bulwark

against convictions that violate fundamental fairness.

. . . This court has taken the same view. To mount a

successful collateral attack on his conviction a prisoner

must demonstrate a miscarriage of justice or other prejudice and not merely an error which might entitle him to

relief on appeal.’’ (Citations omitted; internal quotation

marks omitted.) Lozada v. Warden, supra, 223 Conn.

839–40.

‘‘Indeed . . . this court, in Safford v. Warden, 223

Conn. 180, 191 n.13, 612 A.2d 1161 (1992), put the issue

to rest when it recognized that the great writ of liberty

is not a remedy for constitutional violations exclusively,

albeit most cases in which the remedy has been applied

involve issues of fundamental fairness that implicate

constitutional rights. Surely, fundamental fairness

opens the door for relief by habeas corpus when the

state, in discharging its statutory duty, appoints incompetent counsel.’’ Lozada v. Warden, supra, 223 Conn.

840; see also Fay v. Noia, 372 U.S. 391, 400–402, 83 S.
Ct. 822, 9 L. Ed. 2d 837 (1963) (describing common-law

history of ‘‘[g]eat [w]rit’’).

Notably, in recognizing the right to bring a second

habeas petition to challenge counsel’s performance in

the first habeas proceeding, this court in Lozada also

rejected the respondent’s argument that ‘‘the writ [of

habeas corpus] is available only to attack the validity

of the underlying criminal judgment or to challenge a

wrongful confinement.’’ Lozada v. Warden, supra, 223

Conn. 841. Citing the works of Chief Justice Zephaniah

Swift and William Blackstone for a historical overview

of the writ as a common-law remedy, this court

observed that the ‘‘writ of habeas corpus, as it is

employed in the twentieth century . . . does not focus

solely upon a direct attack on the underlying judgment

or upon release from confinement.’’ (Emphasis added.)

Id. This court concluded that ‘‘the subject of the writ—

that is, whether the accused had reasonably competent

habeas and trial counsel—are matters that ultimately

challenge the underlying conviction. The respondent

does not question that if this were the petitioner’s first

habeas corpus petition, he would be entitled to challenge the competency of his trial attorney, even though

the petitioner’s success would lead only to a new trial.

. . . Also, it is beyond dispute that the great writ may

be used as a vehicle to challenge the competency of

appellate counsel, even though granting the writ would

likewise not result in release, but only in a new trial.’’

(Citation omitted; emphasis added.) Id., 842.

This court emphasized, however, the petitioner’s

‘‘herculean’’ task to prove in a second habeas, under

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

2052, 80 L. Ed. 2d 674 (1984), ‘‘(1) that his appointed

habeas counsel was ineffective, and (2) that his trial

counsel was ineffective.’’ Lozada v. Warden, supra, 223

Conn. 842–43. We observed that the ‘‘new trial would

go to the heart of the underlying conviction to no lesser

extent than if it were a challenge predicated on ineffective assistance of trial or appellate counsel. The second

habeas petition is inextricably interwoven with the

merits of the original judgment by challenging the very

fabric of the conviction that led to the confinement.’’

(Emphasis added.) Id., 843. This court, therefore,

‘‘reject[ed] the respondent’s claim that habeas corpus

is not an appropriate remedy for ineffective assistance

of appointed habeas counsel.’’ Id.

The logical threads of Lozada, which led us to conclude that a habeas on a habeas ‘‘is inextricably interwoven with the merits of the original judgment by

challenging the very fabric of the conviction that led

to the confinement’’; id.; seem to apply with equal force

to the third habeas petition, which is brought to vindicate the petitioner’s right to counsel in the second

habeas petition. See Iovieno v. Commissioner of Correction, 242 Conn. 689, 702, 699 A.2d 1003 (1997) (sec-
ond habeas remedy authorized by Lozada ‘‘extends to

ineffective assistance of counsel claims involving appellate counsel in habeas appeals’’ because ‘‘[t]he statutory

right to counsel in habeas proceedings has also been

held to extend to habeas appeals’’). Given the fundamental fairness origins underlying the common-law writ

of habeas corpus, it would be anomalous to conclude

that a right as significant as the statutory right to counsel in a second habeas petition that ultimately challenges a criminal conviction, and the concomitant right

that the attorney be competent, is one that cannot be

vindicated by the writ. See Fay v. Noia, supra, 372 U.S.

401–402 (‘‘Although in form the [g]reat [w]rit is simply

a mode of procedure, its history is inextricably intertwined with the growth of fundamental rights of personal liberty. For its function has been to provide a

prompt and efficacious remedy for whatever society

deems to be intolerable restraints.’’). Given the overriding concerns of fundamental fairness that underlie the

writ of habeas corpus, not allowing a third habeas petition would undermine the very nature of the statutory

right provided by § 51-296 (a), which, as conceded by

the commissioner, extends to a second habeas

petition.14

We are mindful of the economic and finality concerns

cited by the habeas court and the commissioner in

support of the proposition that third habeas petitions

should not be available to remedy claims of ineffective

assistance of counsel during litigation of a second

habeas petition. As in Lozada, we emphasize the availability of ‘‘restrictive measures’’ by which the courts

may check abusive or frivolous habeas petitions.’’

Lozada v. Warden, supra, 223 Conn. 845 n.11; see id.

(rejecting ‘‘floodgates’’ argument that allowing second

habeas petitions will lead to ‘‘successive and unlimited

petitions for habeas corpus on the basis of ineffective

assistance of habeas counsel’’). Concerns of jurisprudential Matryoshka dolls aside, we tread carefully in

foreclosing entirely the writ of habeas corpus in such

cases because we do not occupy the entire field in state

habeas corpus law, and ‘‘[a] common-law rule . . .

may be subject to both legislative and judicial modification.’’(Internal quotation marks omitted.) Craig v. Driscoll, 262 Conn. 312, 323, 813 A.2d 1003 (2003); see also

id., 323–24 (considering ‘‘whether legislature, by creating an affirmative remedy, has manifested an intention

to occupy the field or whether a common-law remedy

would conflict with or frustrate the purpose of the

[Dram Shop Act, General Statutes § 30-102], so as to

stay our hand in recognizing an action at common law’’

for bystander emotional distress against seller of alcoholic beverages). Although the writ of habeas corpus

has a long common-law history, the legislature has

enacted numerous statutes shaping its use, such as General Statutes § 52-466,15 which governs the litigation of

the writ as a civil matter. See, e.g., Lebron v. Commis-
sioner of Correction, 274 Conn. 507, 525–26, 876 A.2d

1178 (2005) (because ‘‘custody’’ requirement in § 52-

466 is jurisdictional, habeas court lacked jurisdiction

over challenge to fully expired conviction), overruled

in part on other grounds by State v. Elson, 311 Conn.

726, 91 A.3d 862 (2014). Although we recognize that the

provisions of the statutes governing habeas corpus do

not control the outcome in this case, ‘‘it is well established that statutes are a useful source of policy for

common-law adjudication, particularly when there is a

close relationship between the statutory and commonlaw subject matters. . . . Statutes are now central to

the law in the courts, and judicial lawmaking must take

statutes into account virtually all of the time . . . .’’

(Citations omitted; internal quotation marks omitted.)

C & J Builders & Remodelers, LLC v. Geisenheimer,

249 Conn. 415, 419–20, 733 A.2d 193 (1999); see, e.g.,

Hopkins v. O’Connor, 282 Conn. 821, 844–45, 925 A.2d

1030 (2007) (relying on criminal penalty in General Statutes § 17a-504 for wrongful acts in connection with

psychiatric commitment to conclude that common law

provided police officer with qualified, rather than absolute, civil immunity); State v. Guess, 244 Conn. 761, 780,

715 A.2d 643 (1998) (considering statutory definition

of death under Uniform Determination of Death Act,

General Statutes § 19a-504a, in modifying common law

for purposes of Penal Code, which did not define

term ‘‘death’’).

Given the statutory overlay with respect to the common law governing the writ of habeas corpus, we find

it significant that the legislature recently engaged in

comprehensive habeas reform, culminating in the 2012

amendments to § 52-47016 that are intended to supplement that statute’s efficacy in averting frivolous habeas

petitions and appeals. See Public Acts 2012, No. 12-

115, § 1. It is well established that we presume the

legislature’s awareness of the common and statutory

law governing the fields in which it acts. See, e.g.,

Financial Consulting, LLC v. Commissioner of Insurance, 315 Conn. 196, 212, 105 A.3d 210 (2014). We are

especially confident as to this awareness with respect

to habeas law in particular, as the legislature adopted

the 2012 habeas reforms just a few months after the

Appellate Court’s decision in Sinchak v. Commissioner

of Correction, supra, 126 Conn. App. 684, and the

reforms were the product of collaboration and compromise by representatives from the various stakeholders

in the habeas process, including the Division of Criminal

Justice, the Office of the Chief Public Defender, the

criminal defense bar, and the Judicial Branch. See, e.g.,

Division of Criminal Justice, Request for Joint Favorable Report on House Bill 5554 (March 29, 2012), available at https://www.cga.ct.gov/2012/JUDdata/Tmy

/2012HB-05554-R000329-Division%20of%20Criminal%20

Justice-TMY.PDF (last visited January 13, 2017). Notably, the 2012 habeas reform did not limit the right to
counsel under § 51-296 (a) or otherwise render habeas

relief unavailable in broad categories of cases, including

multiple petitions testing the effectiveness of prior

habeas counsel. Quite the opposite, § 52-470 (d), as

amended in 2012, specifically recognizes the possibility

of multiple petitions challenging a single conviction.

See General Statutes § 52-470 (d) (‘‘[i]n the case of a

petition filed subsequent to a judgment on a prior petition challenging the same conviction, there shall be a

rebuttable presumption that the filing of the subsequent

petition has been delayed without good cause if such

petition is filed after the later of the following: [1] [t]wo

years after the date on which the judgment in the prior

petition is deemed to be a final judgment’’). Thus, given

recent legislative activity in the field with no indication

that the General Assembly intended to eliminate the

use of the common-law habeas corpus remedy to vindicate the statutory right under § 51-296 (a) to the effective assistance of counsel in a second habeas, we stay

our hand as a matter of common law with respect to

disturbing the availability of that remedy. Cf. Stuart v.

Stuart, 297 Conn. 26, 47, 996 A.2d 259 (2010)(discussing

particular applicability of doctrine of legislative acquiescence when ‘‘legislature affirmatively amended the

statute subsequent to a judicial or administrative interpretation, but chose not to amend the specific provision

of the statute at issue’’ [internal quotation marks omitted]). Should the legislature determine that existing

‘‘restrictive measures’’; Lozada v. Warden, supra, 223

Conn. 845 n.11; already in place to address frivolous

habeas petitions, such as summary dismissal without

a trial under § 52-470 (b) or Anders briefs17 filed by

habeas counsel, are insufficient to stem the tide of third

habeas petitions challenging the first two layers of

habeas representation, the legislature remains free to

amend the relevant statutes as necessary.18 Cf. In re

Jonathan M., supra, 255 Conn. 240–41 (concluding that

habeas corpus petition not available remedy to challenge termination of parentalrights because ‘‘permitting

a habeas writ as a vehicle in which a parent whose

rights have been terminated may attack that judgment

collaterally, unbounded by constraints within which

time such a petition may be filed, would further undermine the legislative pronouncements in this area of the

law,’’ namely, General Statutes § 45a-719, which ‘‘preclud[es] the court from granting any motion or petition

filed after a final decree of adoption has been entered’’).

We conclude, therefore, that a third habeas petition

is an available remedy to challenge the effectiveness

of the petitioner’s counsel in the second habeas proceeding.19 Accordingly, the habeas court improperly dismissed the third and sixth counts of the third petition;

see footnote 4 of this opinion; on the ground that they

failed to state a claim for which habeas relief was

available.20

The judgment is reversed only with respect to the
dismissal of counts three and six of the amended petition and the case is remanded for further proceedings

according to law.

In this opinion the other justices concurred.

* This case was originally argued before a panel of this court consisting

of Chief Justice Rogers and Justices Palmer, Zarella, Eveleigh, McDonald

and Robinson. Thereafter, Justice Zarella retired from this court and did

not participate in the consideration of the case.

1 We note that the petitioner’s first name has been spelled ‘‘Nabil’’ in other

appellate opinions. See generally Kaddah v. Commissioner of Correction,

299 Conn. 129, 130, 7 A.3d 911 (2010); State v. Kaddah, 250 Conn. 563, 564,

736 A.2d 902 (1999); Kaddah v. Commissioner of Correction, 105 Conn.

App. 430, 431, 939 A.2d 1185, cert. denied, 286 Conn. 903, 943 A.2d 1101

(2008). In the present case, however, we use the spelling ‘‘Nabeel’’ for the

sake of consistency with the original pleadings.

2 The habeas court granted the petitioner’s petition for certification to

appeal. See General Statutes § 52-470 (g). The petitioner subsequently

appealed from the judgment of the habeas court to the Appellate Court,

and we transferred the appeal to this court pursuant to General Statutes

§ 51-199 (c) and Practice Book § 65-2.

3 General Statutes § 51-296 (a) provides in relevant part: ‘‘In any criminal

action, in any habeas corpus proceeding arising from a criminal matter . . .

the court before which the matter is pending shall, if it determines after

investigation by the public defender or his office that a defendant is indigent

as defined under this chapter, designate a public defender, assistant public

defender or deputy assistant public defender to represent such indigent

defendant . . . .’’

4 We note that the operative pleading with respect to the third habeas

petition includes six counts claiming ineffective assistance of counsel in

connection with the criminal trial, the direct appeal, and his two prior habeas

petitions. On the first day of trial, the habeas court, acting sua sponte,

dismissed counts one, two, four, and five of the amended petition, which

alleged ineffective assistance of counsel in connection with the criminal

trial and the direct appeal, but did not pertain to prior habeas counsel. The

petitioner does not challenge the dismissal of these counts in this appeal.

5 The petitioner also filed a series of unsuccessful habeas petitions in

federal court, prior to exhausting his state habeas remedies. See Kaddah

v. Brighthaupt, United States District Court, Docket No. 3:11CV1809 (SRU)

(D. Conn. August 6, 2013); Kaddah v. Lee, United States District Court,

Docket No. 3:08CV519 (SRU) (D. Conn. October 7, 2008); Kaddah v. Strange,

United States District Court, Docket No. 3:00CV1642 (CFD) (D. Conn. January 18, 2001). The disposition of these federal petitions does not affect our

analysis in this appeal.

6 We note that, prior to filing the petition at issue in the present case,

the petitioner filed a habeas petition as a self-represented party alleging

ineffective assistance of his trial counsel in order to reinstate his previously

withdrawn appeal. The habeas court, Nazzaro, J., summarily dismissed this

petition as successive to the first habeas petition. See Kaddah II, supra,

299 Conn. 134–35. This court affirmed Judge Nazzaro’s decision on the

alternative ground that the petition did not state a claim on which the

requested relief could be granted because it failed to challenge Attorney

Visone’s decision to withdraw the first habeas appeal. See id., 139–40. The

claims raised in that proceeding are not, however, relevant to the present

appeal. Consequently, for the sake of simplicity, we refer to the petition at

issue in the present case as his third habeas petition.

7 See footnote 4 of this opinion.

8 Specifically, the commissioner’s brief to the habeas court stated: ‘‘[The]

[p]etitioner’s prior habeas attorneys were appointed pursuant to . . . § 51-

296. Accordingly, he possessed a right to effective assistance of both habeas

attorneys; a right he is claiming was violated in this pending habeas corpus

action. Therefore, he may claim that his second appointed habeas counsel

was ineffective. This analysis raises the question, can a petitioner bring

habeas on a habeas ad infinitum? As long as a petitioner is provided counsel

pursuant to . . . § 51-296, he is entitled to effective assistance of counsel.

Accordingly, he may challenge that appointed habeas attorney’s representation at a subsequent habeas [proceeding].’’

9 General Statutes § 52-470 provides: ‘‘(a) The court or judge hearing any

habeas corpus shall proceed in a summary way to determine the facts and

issues of the case, by hearing the testimony and arguments in the case, and
shall inquire fully into the cause of imprisonment and thereupon dispose

of the case as law and justice require.

‘‘(b) (1) After the 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.

‘‘(2) With respect to the determination of such good cause, each party

may submit exhibits including, but not limited to, documentary evidence,

affidavits and unsworn statements. Upon the motion of any party and a

finding by the court that such party would be prejudiced by the disclosure

of the exhibits at that stage of the proceedings, the court may consider

some or all of the exhibits in camera.

‘‘(3) In order to establish such good cause, the petition and exhibits must

(A) allege the existence of specific facts which, if proven, would entitle the

petitioner to relief under applicable law, and (B) provide a factual basis

upon which the court can conclude that evidence in support of the alleged

facts exists and will be presented at trial, provided the court makes no

finding that such evidence is contradicted by judicially noticeable facts. If

the petition and exhibits do not establish such good cause, the court shall

hold a preliminary hearing to determine whether such good cause exists. If,

after considering any evidence or argument by the parties at such preliminary

hearing, the court finds there is not good cause for trial, the court shall

dismiss all or part of the petition, as applicable.

‘‘(c) Except as provided in subsection (d) of this section, there shall be

a rebuttable presumption that the filing of a petition challenging a judgment

of conviction has been delayed without good cause if such petition is filed

after the later of the following: (1) Five years after the date on which the

judgment of conviction is deemed to be a final judgment due to the conclusion of appellate review or the expiration of the time for seeking such

review; (2) October 1, 2017; or (3) two years after the date on which the

constitutional or statutory right asserted in the petition was initially recognized and made retroactive pursuant to a decision of the Supreme Court

or Appellate Court of this state or the Supreme Court of the United States

or by the enactment of any public or special act. The time periods set forth

in this subsection shall not be tolled during the pendency of any other

petition challenging the same conviction.

‘‘(d) In the case of a petition filed subsequent to a judgment on a prior

petition challenging the same conviction, there shall be a rebuttable presumption that the filing of the subsequent petition has been delayed without

good cause if such petition is filed after the later of the following: (1) Two

years after the date on which the judgment in the prior petition is deemed

to be a final judgment due to the conclusion of appellate review or the

expiration of the time for seeking such review; (2) October 1, 2014; or (3)

two years after the date on which the constitutional or statutory right

asserted in the petition was initially recognized and made retroactive pursuant to a decision of the Supreme Court or Appellate Court of this state or

the Supreme Court of the United States or by the enactment of any public

or special act. For the purposes of this section, the withdrawal of a prior

petition challenging the same conviction shall not constitute a judgment.

The time periods set forth in this subsection shall not be tolled during the

pendency of any other petition challenging the same conviction. Nothing in

this subsection shall create or enlarge the right of the petitioner to file a

subsequent petition under applicable law.

‘‘(e) In a case in which the rebuttable presumption of delay under subsection (c) or (d) of this section applies, the court, upon the request of the

respondent, shall issue an order to show cause why the petition should be

permitted to proceed. The petitioner or, if applicable, the petitioner’s counsel, shall have a meaningful opportunity to investigate the basis for the delay

and respond to the order. If, after such opportunity, the court finds that the

petitioner has not demonstrated good cause for the delay, the court shall

dismiss the petition. For the purposes of this subsection, good cause

includes, but is notlimited to, the discovery of new evidence which materially

affects the merits of the case and which could not have been discovered

by the exercise of due diligence in time to meet the requirements of subsection (c) or (d) of this section.

‘‘(f) Subsections (b) to (e), inclusive, of this section shall not apply to (1)

a claim asserting actual innocence, (2) a petition filed to challenge the

conditions of confinement, or (3) a petition filed to challenge a conviction

for a capital felony for which a sentence of death is imposed under section

53a-46a.
‘‘(g) No appeal from the judgment rendered in a habeas corpus proceeding

brought by or on behalf of a person who has been convicted of a crime in

order to obtain such person’s release may be taken unless the appellant,

within ten days after the case is decided, petitions the judge before whom

the case was tried or, if such judge is unavailable, a judge of the Superior

Court designated by the Chief Court Administrator, to certify that a question

is involved in the decision which ought to be reviewed by the court having

jurisdiction and the judge so certifies.’’

10 Given the commissioner’s concessions before the habeas court, his

arguments in this appeal are, in essence, unpreserved alternative grounds

for affirming that court’s judgment. We exercise our discretion to consider

these unpreserved arguments because: (1) the petitioner has not objected

and has had full opportunity to respond in his reply brief; and (2) judicial

economy counsels in favor of reviewing them insofar as granting the petitioner relief in this appeal will entail further proceedings before the habeas

court. See Blumberg Associates Worldwide, Inc. v. Brown & Brown of

Connecticut,Inc., 311 Conn. 123, 166, 84 A.3d 840 (2014); Dumas v. Commissioner of Correction, 168 Conn. App. 130, 140 n.8, 145 A.3d 355 (2016).

11 We emphasize that a party’s concession as to a point of law is not

binding on this court. See, e.g., State v. Warholic, 278 Conn. 354, 373 n.11, 897

A.2d 569 (2006); State v. Avery, 199 Conn. 377, 379 n.2, 507 A.2d 464 (1986).

12 This concession is significant because, if there is no right to competent

counsel in a second habeas, then there is no need for us to consider the

remedies available to vindicate that right.

13 It is well settled that there is no federal constitutional right to counsel

in a habeas corpus proceeding. See, e.g., Lozada v. Warden, supra, 223

Conn. 839 n.8; see also Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.

Ct. 1990, 95 L. Ed. 2d 539 (1987) (no federal constitutional right to counsel

in collateral review proceedings).

14 We acknowledge the commissioner’s argument that Lozada v. Warden,

supra, 223 Conn. 834, properly allows a second habeas petition for review

of counsel’s actions in the first habeas proceeding, albeit not as a matter

of vindicating the statutory right to counsel under § 51-296 (a), but rather,

as a matter of ‘‘fundamental fairness’’ to assure that a criminal defendant

has two opportunities to vindicate his constitutional right to counsel at

trial and on direct appeal under the sixth amendment to the United States

constitution. Specifically, the commissioner notes our well established practice of deferring review of ineffectiveness claims from the original criminal

proceedings, including direct appeal, to collateral review by habeas corpus

in orderto allow for necessary record development. See, e.g., State v. Leecan,

198 Conn. 517, 542, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922,

91 L. Ed. 2d 550 (1986). The commissioner posits that, in the absence

of this procedure, a criminal defendant would ordinarily be able to raise

ineffective assistance claims underthe sixth amendment forreview pursuant

to Strickland v. Washington, supra, 466 U.S. 687, at the criminal trial and

on direct appeal, with review by a subsequent habeas proceeding. The

commissioner argues that our reticence to review ineffective assistance

claims in direct proceedings necessitates a second habeas petition to assure

that criminal defendants in Connecticut get the same pair of opportunities

for review of a possible deprivation of their constitutional right to counsel.

We agree with the general doctrinal framework posited by the commissioner, namely, that ‘‘fundamental fairness’’ dictates the availability of the

writ of habeas corpus as a matter of common law; see Safford v. Warden,

supra, 223 Conn. 190; meaning that, as we held in Lozada v. Warden, supra,

223 Conn. 839–40, it may well be available to remedy statutory as well as

constitutional violations. Our decision in Lozada is consistent with the

commissioner’s arguments because, in that case, we treated the question

of whether the statutory right to counsel under § 51-296 (a) includes a

component of competence as a separate inquiry from whether a habeas

petition is a proper remedy for vindicating that right. See Id., 840–43. Put

differently, nowhere in Lozada did we treat the right to bring a second

habeas petition as one with its doctrinal roots in the right provided by § 51-

296 (a). Although we recognize that there has been substantial legislative

involvement in the area of habeas corpus, culminating in a recent set of

reforms in 2012; see Public Acts 2012, No. 12-115, § 1; we emphasize that,

in the absence of a statute curtailing the common-law right to the writ, any

modifications that we make to its availability to vindicate legal rights are

a function of our ultimate authority over the state’s common law. See, e.g.,

State v. DeJesus, 288 Conn. 418, 456–57, 953 A.2d 45 (2008).

15 General Statutes § 52-466 provides in relevant part: ‘‘(a) (1) An applica-
tion for a writ of habeas corpus, other than an application pursuant to

subdivision (2) of this subsection, shall be made to the superior court, or

to a judge thereof, for the judicial district in which the person whose custody

is in question is claimed to be illegally confined or deprived of such person’s liberty.

‘‘(2)An application for a writ of habeas corpus claiming illegal confinement

or deprivation of liberty, made by or on behalf of an inmate or prisoner

confined in a correctional facility as a result of a conviction of a crime,

shall be made to the superior court, or to a judge thereof, for the judicial

district of Tolland.

‘‘(b) The application shall be verified by the affidavit of the applicant for

the writ alleging that he truly believes that the person on whose account

the writ is sought is illegally confined or deprived of his liberty.

‘‘(c) The writ shall be directed to some proper officer to serve and return,

who shall serve the same by putting a true and attested copy of it into the

hands of the person who has the custody of the body of the person who is

directed to be presented upon the writ. If the officer fails to make immediate

return of the writ, with his actions thereon, he shall pay fifty dollars to the

person so held in custody. . . .’’

16 See footnote 9 of this opinion for the full text of § 52-470.

17 Anders v. California, 386 U.S. 738, 744–45, 87 S. Ct. 1396, 18 L. Ed. 2d

493 (1967); see, e.g., Lorthe v. Commissioner of Correction, 103 Conn. App.

662, 676, 931 A.2d 348 (discussing filing of briefs by appointed counsel,

pursuant to Anders, to inform court that habeas petition or appeal is ‘‘wholly

frivolous’’), cert. denied, 284 Conn. 939, 937 A.2d 696 (2007); see also Practice

Book § 23-41 (governing motions to withdraw by appointed counsel in

habeas cases).

18 We briefly discuss In re Jonathan M., supra, 255 Conn. 208, on which

the commissioner relies heavily in support of barring the use of a third

habeas petition to vindicate the petitioner’s right to the effective assistance

of counsel in prosecuting a second habeas petition. In that case, this court

held that due process, implemented by the three factor balancing test of

Mathews v. Eldridge, 424 U.S. 319, 334–35, 96 S. Ct. 893, 47 L. Ed. 2d 18

(1976), did not require ‘‘the writ of habeas corpus as a procedural means

of vindicating the right to effective assistance of counsel in an action to

terminate parental rights.’’ In re Jonathan M., supra, 229. Acknowledging

the grave constitutional significance of the parent-child relationship, we

emphasized the state’s interest in the rapid resolution of termination litigation because of the best interests of the subject child, namely, assuring that

the child received a permanent home as soon as possible. Id., 230–32. We

observed that, ‘‘to allow a habeas action to raise an ineffective assistance

of counsel claim, as in this case, necessarily would suspend adoption proceedings and infuse uncertainty therein. Due to the fact that a habeas petition

may be filed at any time . . . there exists . . . a frightening possibility that

a habeas petition will negate the permanent placement of a child whose

status had presumably been in limbo for several years.’’ (Citation omitted;

internal quotation marks omitted.) Id., 232–33. We then determined that

existing remedies were sufficient to protect parental interests, including the

heightened ‘‘vigilance’’ of trial judges in termination proceedings, direct

appeal from the judgment of termination, rules of practice providing review

by an independent attorney in the event of a withdrawal by counsel, statutory

and common-law motions to open the judgment, and a petition for a new

trial within three years pursuant to General Statutes § 52-582. See id., 234–40.

Finally, we emphasized that General Statutes § 45a-719 demonstrated the

legislature’s concern with finality by ‘‘precluding the court from granting

any motion or petition filed after a final decree of adoption has been entered.’’

Id., 240; see also id., 240–41 (‘‘permitting a habeas writ as a vehicle in which

a parent whose rights have been terminated may attack that judgment

collaterally, unbounded by constraints within which time such a petition

may be filed, would further undermine the legislative pronouncements in

this area of the law’’). Thus, we declined ‘‘to infect the delicate and serious

process governing the placement of foster children in permanent adoptive

homes with perpetual uncertainty where the General Assembly has not

directed us to do so.’’ Id., 241.

We decline the commissioner’s invitation to follow In re Jonathan M.

because the finality considerations in a collateral challenge to a termination

of parental rights are drastically different from those presented by a writ

of habeas corpus attacking a criminal conviction with respect to the fundamental fairness concerns that drive the availability of the writ as a commonlaw remedy. ‘‘[C]riminal prosecutions and termination proceedings are sub-
stantially different in focus. The resolution of a civil juvenile proceeding

focuses on the best interests of the child, not on guilt or innocence as in a

criminal proceeding.’’ Baker v. Office of Family & Children, 810 N.E.2d

1035, 1039 (Ind. 2004). In relying on In re Jonathan M. in a termination of

parental rights case, the Indiana Supreme Court drew a sharp distinction

between ‘‘serial [litigation] in criminal cases,’’ with its attendant burdens

on the state, potential victims, and witnesses, ‘‘by saying that the complete

deprivation of personal liberty represented by incarceration demands a

thorough search for the innocent. In the context of termination cases,

extended litigation imposes that burden on the most vulnerable people

whom the system and such cases seek to protect: the children.’’ Id., 1040.

Thus, we view In re Jonathan M. as embodying very different interests of

finality than those presented in a habeas petition that ultimately challenges

a criminal conviction. This is particularly so given our reliance in that case

on the absolute finality that the legislature imposed in termination cases

by § 45a-719. See In re Jonathan M., supra, 255 Conn. 240. Indeed, the

commissioner has not pointed us to a similar statutory bright line barring

further relief in the criminal habeas context, and our independent research

has not revealed one.

19 We emphasize, however, that our holdings in this case are limited to

the questions decided by the habeas court, and briefed and argued by the

parties, namely: (1) whether there is, as conceded by the commissioner, a

statutory right under § 51-296 (a) to the effective assistance of counsel in

prosecuting a second habeas petition; and (2) if such a right exists, whether

a third habeas petition is an available procedural vehicle by which to vindicate that right. Given the concerns of ‘‘fundamental fairness’’ that attend

the use of the habeas remedy; see, e.g., Safford v. Warden, supra, 223 Conn.

190; along with the practical and economic concerns aptly noted by the

habeas court in the present case, we take no position in this appeal about

whether the writ is available to remedy claims of ineffective assistance of

counsel during litigation ofthe third habeas petition and beyond. We similarly

decline to opine, as a matter of statutory interpretation, about whether the

statutory right to counsel under § 51-296 (a) extends beyond the second

habeas petition. See, e.g., Stuart v. Stuart, supra, 297 Conn. 48 (‘‘sound

principles of judicial restraint and judicial economy counsel [an appellate

court]to resolve only those issues that are necessary to the proper determination of [an] appeal’’ [internal quotation marks omitted]); see also Simms v.

Warden, 229 Conn. 178, 190, 640 A.2d 601 (1994) (Borden, J., concurring)

(‘‘Experience has demonstrated that we are wiser to defer difficult questions

to cases that squarely present them. I would follow that wisdom and defer

the question to a case in which the issue is squarely presented and briefed.’’).

20 Observing that ‘‘the issue may arise again’’ on remand, the petitioner asks

us to ‘‘address the available remedies for his claim of ineffective assistance of

second habeas counsel,’’ given the habeas court’s conclusion that ‘‘the only

remedy possible for this claim is the granting of a new second habeas trial.’’

Citing Lapointe v. Commissioner of Correction, 316 Conn. 225, 229, 112

A.3d 1 (2015), in which this court upheld the Appellate Court’s order of a

new criminal trial in connection with a second habeas petition, the petitioner

observes that ‘‘the issues raised at a second habeas go to the heart of the

underlying criminal proceeding, [and] it is within the broad scope of a habeas

court’s authority in crafting equitable relief to not only grant a new second

habeas trial, but also to grant a new criminal trial.’’ Although we often

address issues that are likely to arise on remand; see, e.g., Total Recycling

Services of Connecticut, Inc. v. Connecticut Oil Recycling Services, LLC,

308 Conn. 312, 325, 63 A.3d 896 (2013); given the habeas court’s broad

discretion with respect to the available remedies, we decline to address this

claim in the absence of factual findings and conclusions of law with respect

to the specific claims of ineffectiveness in the preceding habeas proceedings

and underlying criminal trial that might better inform our remedial analysis.

See Gaines v. Manson, 194 Conn. 510, 528, 481 A.2d 1084 (1984) (observing

that habeas court, ‘‘much like a court of equity, has considerable discretion

to frame a remedy, so long as that remedy is commensurate with the scope

of the constitutional violations which have been established’’).