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*********************************************** 
JERMAINE ROSS v. COMMISSIONER

OF CORRECTION

(AC 45062)

Bright, C. J., and Prescott and Moll, Js.

Syllabus

The petitioner, who had been convicted, on a plea of guilty, of the crime

of kidnapping in the second degree, sought a writ of habeas corpus,

claiming, inter alia, that he was actually innocent and that his courtappointed standby counsel, R, had rendered ineffective assistance when

the petitioner represented himself during his second criminal trial. At

the petitioner’s first criminal trial, the state introduced evidence that

the petitioner had lured the victim into his car by promising her money

in exchange for sex and then drove to a market where video footage

from two surveillance cameras showed the victim getting out of the car,

entering the market to make a purchase and then reentering the car

before it was driven away. When the victim told the petitioner that she

had changed her mind and asked that he drop her off, he refused and

drove to a parking lot where he sexually assaulted her. After the petitioner’s first criminal trial ended in a mistrial, the petitioner invoked his

right to represent himself at his retrial and proceeded with R acting

as standby counsel. During jury selection, the trial court ordered the

petitioner removed from the courtroom because of his belligerent conduct and directed R to continue with jury selection. The petitioner

resumed self-representation before the completion of jury selection and

his acceptance of the state’s plea offer. The habeas court granted in

part the motion filed by the respondent Commissioner of Correction to

dismiss the petitioner’s habeas petition. At the habeas trial, the petitioner

claimed, inter alia, that inconsistencies in the victim’s recounting of

events and discrepancies in the video surveillance footage that undermined the victim’s testimony that she was at the market with him constituted newly discovered evidence that established his claim of actual

innocence. The petitioner further claimed that R had rendered ineffective

assistance by failing to inform him of a potential legal claim pertaining

to the interception by the Department of Correction of his mail that

contained his defense strategy, which thereafter was provided to the

state’s attorney. The habeas court denied the petitioner’s actual innocence claim, concluding that he had not presented any newly discovered

evidence that was not available at the time of the underlying criminal

proceedings. The court also determined that the petitioner’s ineffective

assistance claim was without merit, reasoning that, once he decided to

represent himself, he had no right to the effective assistance of counsel

in any capacity. The habeas court thereafter rendered judgment dismissing the habeas petition, from which the petitioner, on the granting of

certification, appealed to this court. Held:

1. The habeas court did not err in rejecting the petitioner’s claim that he

was actually innocent, as he failed to present any newly discovered

evidence to establish his innocence by clear and convincing evidence:

a. This court rejected the petitioner’s assertion that evidence need not

be newly discovered to establish a claim of actual innocence, as that

assertion was flatly contradictory to this court’s binding precedent that

an actual innocence claim must be based on newly discovered evidence.

b. This court concluded that, even if there were no requirement that

evidence must be newly discovered to establish an actual innocence

claim, the petitioner’s efforts to undermine the credibility of the victim’s

testimony by calling into question the reliability of the surveillance video

was unavailing, because, even if the reliability of the surveillance video

were called into question, undermining one piece of evidence did not

constitute affirmative evidence of his actual innocence; moreover, the

evidence the petitioner adduced concerning the surveillance video

merely attempted to discredit a portion of the state’s evidence at his

underlying criminal trial and would not negate the other ample evidence

of his guilt that was admitted at that trial, which included evidence that

his DNA was found in the victim, evidence of tire marks at the crime
scene that matched the petitioner’s vehicle, cell phone location data

placing him near the scene at the relevant time, and evidence that the

police found him in the same location several days later with another

sex worker in a car that matched the vehicle described by the victim.

2. There was no merit to the petitioner’s claim that the habeas court improperly failed to conclude that R had rendered ineffective assistance in his

role as standby counsel, as the petitioner had no right to the effective

assistance of counsel in any capacity after he waived his sixth amendment right to counsel and exercised his right to represent himself: the

petitioner cited no legal authority to support his contention that R had

a duty to inform him of potential legal issues in connection with his

intercepted prison mail, the evidence showed that R’s role as standby

counsel was limited in that he neither examined witnesses nor argued

to the jury but mostly responded to requests from the petitioner, R’s

actions readily fell into the category of assisting the petitioner with

overcoming routine procedural obstacles to the completion of tasks the

petitioner wanted to complete, and, despite the assistance R provided

by offering the petitioner unsolicited advice and conducting voir dire

on the day the petitioner was removed from the courtroom, the petitioner

unmistakably represented himself through the conclusion of his criminal

matter, during which he filed and argued numerous motions, represented

himself at multiple hearings and, on several occasions, reaffirmed to

the trial court his desire to represent himself; moreover, nothing in the

record indicated that the petitioner was confused about the role of

standby counsel, he never expressed to the trial court any uncertainty

about R’s role, and he presented no evidence to the habeas court that

he relied on R to provide unsolicited advice or to identify and inform

him of potential legal issues.

3. The petitioner could not prevail on his claim that the habeas court improperly dismissed that count of his habeas petition in which he alleged that

his rights to due process and the assistance of counsel were violated as

a result of the interception of his prison mail: contrary to the petitioner’s

contention that those allegations related to the knowing and voluntary

nature of his guilty plea, they did not sufficiently demonstrate an interrelationship between the plea and the alleged ineffective assistance by R

such that it could be said that the plea was not made knowingly and

voluntarily, as there could be no ineffective assistance of counsel

because the petitioner represented himself, the count at issue could not

reasonably be read to set forth a claim that the plea was not made

knowingly and voluntarily, and this court declined to consider the petitioner’s memorandum of law opposing the respondent’s motion to dismiss, in which he argued for the first time that his plea was not made

knowingly or voluntarily, as a memorandum of law is not a proper vehicle

for supplementing factual allegations in a habeas petition; moreover, a

plain reading of the allegations at issue showed that they asserted only

a claim that the petitioner had lost an opportunity to have the charges

against him dismissed because of the interception of his mail, as the

count at issue contained no allegations relating to the knowing and

voluntary nature of his guilty plea, at no point did he amend his habeas

petition to allege that the plea was unknowingly and involuntarily made

due to the interception of his mail, and, as alleged in the count at issue,

the petitioner was fully aware of the interception of his mail prior to

entering his guilty plea; furthermore, because a plea is made knowingly

and voluntarily regardless of whether a defendant is made aware of

every motion being waived by entering the plea, the petitioner knowingly

and willingly assumed that risk and had been advised of it by the trial

court when he chose to represent himself.

Argued October 3, 2022—officially released January 17, 2023

Procedural History

Amended petition for a writ of habeas corpus,

brought to the Superior Court in the judicial district of

Tolland, where the court, Chaplin, J., granted in part

the motion to dismiss filed by the respondent Commissioner of Correction; thereafter, the petitioner withdrew

the petition in part; subsequently, the case was tried to

the court, Oliver, J.; judgment denying the petition,

from which the petitioner, on the granting of certifica-
tion, appealed to this court. Affirmed.

Naomi T. Fetterman, assigned counsel, for the appellant (petitioner).

Nathan J. Buchok, deputy assistant state’s attorney,

with whom, on the brief, were Matthew C. Gedansky,

state’s attorney, and Jo Anne Sulik, senior assistant

state’s attorney, for the appellee (respondent).
Opinion

BRIGHT, C. J. Following the granting of certification

to appeal, the petitioner, Jermaine Ross, appeals from

the judgment of the habeas court denying his second

revised, amended petition for a writ of habeas corpus.

On appeal, the petitioner claims that the habeas court

improperly (1) rejected his actual innocence claim, (2)

concluded that he failed to establish that standby counsel provided ineffective assistance, and (3) dismissed

count two of the habeas petition.1 We disagree and,

accordingly, affirm the judgment of the habeas court.

The habeas court set forth the following relevant

factual and procedural background in its memorandum

of decision. ‘‘The petitioner was the defendant in State

v. Ross, Docket No. CR-10-0642126-S, in the judicial

district of Hartford. The petitioner was charged with

one count of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1), and one count

of kidnapping in the first degree in violation of General

Statutes § 53a-92 (a) (2) (A). Although the petitioner

was initially represented by two different attorneys

prior to trial, he exercised his right to represent himself.

The petitioner’s first criminal trial proceeded as far as

jury deliberations but resulted in a mistrial after the

jury was unable to reach a unanimous verdict. After

the mistrial, the petitioner was briefly represented by

a third attorney, who was discharged, and the petitioner

[was assigned] his fourth counsel, Attorney Aaron

Romano. The petitioner again invoked his right to represent himself, which was granted [after he was fully

canvassed by the court, Dewey, J.], and he proceeded

with the assistance of Romano acting in the capacity

of standby counsel.

‘‘Jury selection for a second trial commenced with

the petitioner representing himself and Romano [acting]

as standby counsel. However, after the petitioner indicated on June 4, 2013, that he did not want to proceed

with the trial that day, he was ordered removed from

the courtroom. Romano took over representation and

continued with the jury selection, although the petitioner resumed representing himself before jury selection completed. On January 24, 2014, the state conveyed

a plea offer to the petitioner, which he accepted that

day. In exchange for pleading guilty to one count of

kidnapping in the second degree in violation of General

Statutes § 53a-94, the petitioner would receive a total

effective sentence of ten years of incarceration, suspended after the service of five years, followed by five

years of probation. . . . The petitioner pleaded guilty

pursuant to the Alford doctrine2 and, after a thorough

canvass by the court, Alexander, J., was sentenced in

accordance with the plea agreement.

‘‘The prosecutor put the following facts on the record

to support the petitioner’s guilty plea: ‘[T]his occurred
on [November 22, 2009]. The [petitioner] had picked

up a woman on Webster Street in Hartford, who admitted to the police that she was working as a [sex worker]

at the time. He had lured her into his car with the

promise of money in exchange for sex [and] began

driving her to another location. Along the way, she

changed her mind [and] asked to be brought back to

Hartford. He did not follow those wishes [and] took

her to Farmington where the other events unfolded.’

. . . The court then described to the petitioner the elements of kidnapping in the second degree and canvassed him to determine whether he understood what

the state would have to prove at trial. The petitioner

acknowledged that he understood the court’s explanation.’’ (Citations omitted; footnote in original.)

On May 1, 2014, the petitioner filed the underlying

habeas petition as a self-represented party. The court

subsequently appointed counsel to represent the petitioner, and assigned counsel filed the operative second

revised, amended petition. In the operative petition,

which included eight counts, the petitioner alleged that

(1) he is actually innocent, (2) his right to due process

and his right to counsel were violated by the Department of Correction’s having intercepted mail intended

for his attorney that contained his defense strategy, (3)

his rights to due process and to a fair trial were violated

by the prosecutor’s alleged Brady3 violation, (4) his

right to due process was violated (a) when the criminal

proceedings against him continued without his presence after he was removed from the courtroom and

standby counsel took over representation, and (b)

because the petitioner’s decision to plead guilty to kidnapping in the second degree was not made knowingly,

intelligently, and voluntarily, as he did not know or

understand that sex offender treatment would be a condition of his probation, (5) his right to self-representation was violated, (6) his right to the effective assistance

of standby counsel was violated, (7) his right to the

effective assistance of counsel was violated constructively, and (8) his right to counsel was violated because

his waiver of that right was ineffective.

On June 3, 2019, the respondent, the Commissioner

of Correction, pursuant to Practice Book § 23-29, filed

a motion to dismiss counts one, two, three, five, six,

seven, and the portion of count four involving the continuation of jury selection in the petitioner’s criminal

trial after he had been removed from the courtroom.

On June 25, 2019, the petitioner filed a memorandum

of law in opposition to the motion, and the parties

appeared in court and argued the motion to dismiss

and the opposition thereto on September 5, 2019. At

the hearing, the respondent’s counsel clarified that she

was not moving to dismiss the portion of count four

relating to sex offender treatment. Further, habeas

counsel represented to the court that he had filed a

motion in the petitioner’s criminal case requesting that
the trial court preclude the imposition of sex offender

treatment and stated that the issue would ‘‘very likely

become moot if this case goes forward . . . .’’ The

habeas court responded that, until the trial court

addressed the pending motion regarding sex offender

treatment, ‘‘there is nothing for this court to address

on that point . . . .’’

Following the hearing, the court, Chaplin, J., issued

a memorandum of decision granting the respondent’s

motion to dismiss as to counts two, three, five, seven,

and the challenged portion of count four pertaining to

the petitioner’s removal from the courtroom on June

4, 2013,4 and denying the motion as to counts one and

six. The petitioner subsequently withdrew count eight,

and the matter proceeded to trial on count one, in which

the petitioner claimed that he was actually innocent,

and on count six, in which he alleged ineffective assistance of standby counsel.5

A two day habeas trial was held on January 15 and

February 4, 2021. In a memorandum of decision filed

July 8, 2021, the court, Oliver, J., denied the petition.

The court stated: ‘‘The petitioner testified in support

of his claims and presented the testimony of former

Detective Tracy Enns . . . Romano, and Victor Sanchez. The petitioner entered documents, mostly consisting of transcripts, into evidence, as well as a flash

drive containing two videos. The respondent entered

one exhibit into evidence. The petitioner and the

respondent filed posttrial briefs.’’

The court denied the petitioner’s actual innocence

claim on the grounds that ‘‘the petitioner [had] failed

to present any newly discovered evidence that was not

available at the time of the criminal proceedings,’’ and

that ‘‘[t]here [was] no evidence affirmatively establishing that the petitioner did not commit the charged

offense and is actually innocent.’’ As to the petitioner’s

ineffective assistance of counsel claim, the court, quoting State v. Oliphant, 47 Conn. App. 271, 281, 702 A.2d

1206 (1997), cert. denied, 244 Conn. 904, 714 A.2d 3

(1998), found that the claim was ‘‘without merit because

after deciding to proceed pro se, [the petitioner had]

no constitutional right to the effective assistance of

counsel in any capacity’’; (internal quotation marks

omitted); and, because there is no constitutional right

to standby counsel, the petitioner could not prove that

standby counsel was ineffective. The court further concluded that the petitioner had failed to prove that

Romano failed to perform his limited standby counsel

duties or that Romano had assumed the role of counsel

other than briefly during voir dire of potential jurors.

Finally, the court concluded that there was ‘‘no other

credible evidence that Romano overrode or infringed

upon the petitioner’s right to represent himself.’’ On July

19, 2021, the petitioner filed a petition for certification

to appeal, which the habeas court granted. This appeal
followed. Additional facts and procedural history will

be set forth as necessary.

I

The petitioner first claims that the habeas court

improperly denied his actual innocence claim. This

claim is without merit.

We begin by setting forth the law governing claims

of actual innocence and the corresponding standard of

review. ‘‘Actual innocence, also referred to as factual

innocence . . . is different than legal innocence.

Actual innocence is not demonstrated merely by showing that there was insufficient evidence to prove guilt

beyond a reasonable doubt. . . . Rather, actual innocence is demonstrated by affirmative proof that the

petitioner did not commit the crime. . . .

‘‘[T]he proper standard for evaluating a freestanding

claim of actual innocence . . . is twofold. First, the

petitioner must establish by clear and convincing evidence that, taking into account all of the evidence—

both the evidence adduced at the original criminal trial

and the evidence adduced at the habeas corpus trial—

he is actually innocent of the crime of which he stands

convicted. Second, the petitioner must also establish

that, after considering all of that evidence and the inferences drawn therefrom as the habeas court did, no

reasonable fact finder would find the petitioner guilty

of the crime. . . .

‘‘Our Supreme Court . . . clarified the actual innocence standard in Gould [v. Commissioner of Correction, 301 Conn. 544, 560–61, 22 A.3d 1196 (2011)]. In

Gould, the habeas court found that the petitioner was

entitled to relief on his actual innocence claim after the

recantations of testimony that was the sole evidence

of [the petitioner’s] guilt. . . . On appeal, our Supreme

Court held that the clear and convincing burden . . .

requires more than casting doubt on evidence presented

at trial and the burden requires the petitioner to demonstrate actual innocence through affirmative evidence

that the petitioner did not commit the crime. . . .

‘‘Affirmative proof of actual innocence is that which

might tend to establish that the petitioner could not

have committed the crime even though it is unknown

who committed the crime, that a third party committed

the crime or that no crime actually occurred. . . .

Clear and convincing proof of actual innocence does

not, however, require the petitioner to establish that

his or her guilt is a factual impossibility. . . .

‘‘With respect to the first component of the petitioner’s burden, namely, the factual finding of actual innocence by clear and convincing evidence . . . [t]he

appropriate scope of review is whether, after an independent and scrupulous examination of the entire

record, we are convinced that the finding of the habeas

court that the petitioner is actually innocent is sup-
ported by substantial evidence.’’ (Citations omitted;

emphasis in original; internal quotation marks omitted.)

Jackson v. Commissioner of Correction, 149 Conn.

App. 681, 706–707, 89 A.3d 426 (2014), appeal dismissed,

321 Conn. 765, 138 A.3d 278, cert. denied sub nom.

Jackson v. Semple, 580 U.S. 1035, 137 S. Ct. 602, 196 L.

Ed. 2d 482 (2016); see also Miller v. Commissioner of

Correction, 242 Conn. 745, 791–92, 700 A.2d 1108 (1997);

Myers v. Commissioner of Correction, 215 Conn. App.

592, 614, 284 A.3d 309 (2022); Ortiz v. Commissioner

of Correction, 166 Conn. App. 635, 659–60, 145 A.3d

937, cert. denied, 323 Conn. 906, 150 A.3d 680 (2016).

Although our Supreme Court has yet to address the

issue of whether an actual innocence claim must be

supported by newly discovered evidence; see Gould v.

Commissioner of Correction, supra, 301 Conn. 551 n.8;

this court has consistently held that ‘‘[a] claim of actual

innocence must be based on newly discovered evidence. . . . 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.’’ (Internal quotation

marks omitted.) Ampero v. Commissioner of Correction, 171 Conn. App. 670, 687, 157 A.3d 1192, cert.

denied, 327 Conn. 953, 171 A.3d 453 (2017).

The following additional facts and procedural history

are relevant to our resolution of this claim. At the petitioner’s first criminal trial, the victim testified that, on

the evening of November 22, 2009, she met a man she

later identified as the petitioner in Hartford, where she

was working as a sex worker. She agreed to get into

the petitioner’s car after he told her he would pay her

forty dollars in exchange for sex. The petitioner then

drove to Victoria’s Market where the victim purchased

a condom. The victim then returned to the car with the

condom, got into the passenger seat, and the petitioner

began driving. The state introduced video surveillance

footage from Victoria’s Market of the victim exiting the

petitioner’s vehicle, entering the store, and making a

purchase on that evening.

The victim testified that, during the drive, she told

the petitioner that she wanted to go home and asked

that he drop her off. The petitioner refused and became

agitated. The petitioner took her against her will to

the parking lot of a landscaping company where he

proceeded to sexually assault her. The petitioner thereafter removed the victim from his car and drove away.

The victim then made her way out to the road where

she flagged down a passing motorist for assistance.

While the victim was speaking with the motorist, a

Farmington police officer pulled over to assist. The

victim informed the officer that she had been sexually

assaulted and accompanied the officer in his police

cruiser to the location where the assault had occurred.
She informed the officer that her assailant had been

driving a black Nissan Maxima. The victim was eventually taken to the University of Connecticut Medical Center emergency department where she was examined by

medical personnel who administered a sexual assault

kit and gathered physical evidence from her body.

At trial, the state introduced evidence establishing

that the petitioner’s DNA matched DNA of spermatozoa

recovered from the victim, that the tires on the petitioner’s vehicle matched the tire marks at the crime scene,

and that the petitioner’s cell phone was in the area of the

assault at the relevant time. The state also introduced

evidence that, on November 27, 2009, five nights after

the assault, Farmington police located the petitioner

parked in the same location where the assault had

occurred. The petitioner was seated in his black Nissan

Maxima with another sex worker.

In count one of the habeas petition, the petitioner

alleged that newly discovered evidence in the form of

cell phone records, computer records, and ‘‘challenges

to the reliability of the forensic evidence’’ established

that he was actually innocent of the charge of kidnapping in the second degree. At the habeas trial, the petitioner testified in support of his claim and presented the

testimony of Sanchez, whose family owned Victoria’s

Market, and Enns, who, at the time of the events at

issue, was employed in the Farmington Police Department. The petitioner also introduced the transcripts

from the original criminal trial and two surveillance

videos from Victoria’s Market, which had been introduced at trial. The first video captures the interior of

Victoria’s Market and shows the victim entering the

market and making a purchase. The second video

depicts a view looking out into the parking area of

Victoria’s Market and shows the victim exiting a vehicle

that matched the victim’s description of the petitioner’s

vehicle and then entering the market.

At the habeas trial, Enns testified that she retrieved

the video evidence directly from Victoria’s Market and

downloaded it onto a flash drive. She obtained the video

to ‘‘corroborate what the victim was telling us in the

case . . . .’’ Enns confirmed that the videos did corroborate a portion of the victim’s statement and that the

videos were introduced at the petitioner’s criminal trial

for that purpose.

In an effort to call into question the authenticity of

the Victoria’s Market videos, the petitioner called Sanchez as a witness at the habeas trial. Sanchez testified

that there had never been a camera located outside of

Victoria’s Market, but he could not recall the exact

location of the security cameras in 2009 and acknowledged that the cameras had been replaced and that the

camera angles may have changed. Before the video

evidence was shown to Sanchez and the court, habeas

counsel asked Sanchez: ‘‘Would it have been possible
for someone to produce camera footage from outside

the store in 2009?’’ Sanchez responded: ‘‘How can—

how can you do that? There’s no camera outside.’’ After

he was shown the video of the exterior of the market,

Sanchez initially stated that he ‘‘[didn’t] think’’ he was

familiar with the camera angle depicted in that video.

On cross-examination, however, Sanchez clarified that

there was a security camera located inside Victoria’s

Market that captured the front of the store, cars outside

the front door, the street outside, and people coming

into the store. Upon viewing the video of the exterior

of the market again, Sanchez confirmed that the images

shown in that video looked like what one could see from

an interior camera in 2009. On redirect examination,

habeas counsel asked Sanchez: ‘‘Is there something that

makes you question that [the video of the exterior of

the market] might not be from the store or from the

cameras?’’ Sanchez responded: ‘‘No, no.’’

Although the petitioner claimed in his habeas petition

that his cell phone and computer records would prove

he was innocent, no such records were offered at his

habeas trial. The petitioner also did not challenge the

DNA evidence introduced at his first criminal trial. The

petitioner did testify, however, that, on the night of

the kidnapping, November 22, 2009, he was in Bristol

working on several school papers and that, just after

midnight, he was on the phone with the Department of

Labor filing an unemployment claim.

The petitioner argued that questions about the surveillance video undermined the victim’s testimony that

she was at Victoria’s Market with him. In particular, he

pointed to Sanchez’ testimony that there was no camera

on the outside of Victoria’s Market and that Sanchez,

on direct examination, did not recognize the camera

angle in the video displaying the petitioner’s car in the

parking lot of Victoria’s Market. The petitioner also

asserted that ‘‘a review of the video exhibits that were

entered into evidence as the surveillance videos seized

by police and played by the prosecuting authority at

the petitioner’s criminal trial makes it clear that the

two videos do not meaningfully correspond. Individuals

that enter and leave the market on the in-store camera

are not seen outside in the parking lot on the other

video.’’ According to the petitioner, ‘‘[i]f [the videos]

could have been undermined as false or fabricated, a

jury would have been left with a firm conviction that

the alleged victim’s version of events had been falsified.

This, in conjunction with the petitioner’s testimony that

he was at home doing schoolwork on the evening of

the alleged incident, would display convincingly that

the petitioner did not commit the crime or that no crime

was committed.’’

The habeas court rejected the petitioner’s actual innocence claim, concluding that the petitioner ‘‘failed to

present any newly discovered evidence that was not
available at the time of the criminal proceedings,’’ and

that there was ‘‘no evidence affirmatively establishing

that the petitioner did not commit the charged offense

and is actually innocent.’’

On appeal, the petitioner claims that the evidence

introduced at the habeas trial relating to the video from

Victoria’s Market constitutes sufficient affirmative evidence of his actual innocence. In advancing his claim,

the petitioner challenges the requirement that evidence

must be newly discovered to support a claim of actual

innocence. He argues that, because a writ of habeas

corpus acts as a ‘‘ ‘bulwark against convictions that

violate fundamental fairness’ ’’; Engle v. Isaac, 456 U.S.

107, 126, 102 S. Ct. 1558, 71 L. Ed. 2d 783 (1982); ‘‘there

is simply no reasoned basis to require that evidence

must be newly discovered in order for a petitioner to

establish his claim of actual innocence.’’ The respondent, conversely, argues that the habeas court, following the well settled precedent of this court, correctly

concluded that the petitioner failed to present any

newly discovered evidence in support of his claim of

actual innocence. The respondent further claims that,

regardless of whether it was newly discovered, the evidence presented by the petitioner at the habeas trial

fell below the standard required to demonstrate actual

innocence. We agree with the respondent.

A

On appeal, the petitioner does not meaningfully challenge the habeas court’s conclusion that the evidence

relating to the video from Victoria’s Market was not

newly discovered. The videos were admitted as evidence at the petitioner’s first criminal trial, and there

is no evidence that Sanchez was not available to testify

at that trial. Rather, the petitioner argues that ‘‘the question should [not be] whether the evidence is newly

discovered but whether [the petitioner] is actually innocent of the crime for which he stands convicted.’’6 We

reject the petitioner’s argument because it is flatly contradictory to our binding precedent.

This court has held repeatedly that an actual innocence claim must be based on newly discovered evidence. See, e.g., Outing v. Commissioner of Correction,

190 Conn. App. 510, 540, 211 A.3d 1053, cert. denied,

333 Conn. 903, 214 A.3d 382 (2019), cert. denied sub

nom. Outing v. Cardona, U.S. , 140 S. Ct. 1166,

206 L. Ed. 2d 212 (2020); Weinberg v. Commissioner

of Correction, 112 Conn. App. 100, 118–19, 962 A.2d

155, cert. denied, 291 Conn. 904, 967 A.2d 1221 (2009);

Williams v. Commissioner of Correction, 41 Conn.

App. 515, 523–29, 677 A.2d 1 (1996), appeal dismissed,

240 Conn. 547, 692 A.2d 1231 (1997); Thompson v. Commissioner of Correction, Superior Court, judicial district of Tolland, Docket No. CV-12-4004330 (August 4,

2014) (reprinted at 172 Conn. App. 141, 157–58, 158

A.3d 815), appeal dismissed, 172 Conn. App. 139, 158
A.3d 814, cert. denied, 325 Conn. 927, 169 A.3d 232

(2017). ‘‘[I]t is axiomatic that one panel of this court

cannot overrule the precedent established by a previous

panel’s holding.’’ Connelly v. Commissioner of Correction, 149 Conn. App. 808, 815, 89 A.3d 468 (2014); see

also State v. Houghtaling, 326 Conn. 330, 343, 163 A.3d

563 (2017) (‘‘Appellate Court panel appropriately considered itself bound by its own precedent’’), cert.

denied, U.S. , 138 S. Ct. 1593, 200 L. Ed. 2d

776 (2018). Because this court is bound to follow the

precedent from other panels of this court, the petitioner’s claim that newly discovered evidence should not

be required to establish a claim of actual innocence

must be rejected.7 Consequently, because the petitioner

failed to present any newly discovered evidence in support of his actual innocence claim, the habeas court

properly rendered judgment in favor of the respondent

on count one of the habeas petition.

B

Furthermore, even if there was no newly discovered

evidence requirement, we agree with the habeas court’s

conclusion that the petitioner’s claim fails because the

supporting evidence he presented did not constitute

clear and convincing affirmative evidence of his actual

innocence. See, e.g., Jackson v. Commissioner of Correction, supra, 149 Conn. App. 706 (‘‘the clear and convincing burden . . . requires the petitioner to demonstrate actual innocence through affirmative evidence

that the petitioner did not commit the crime’’ (internal

quotation marks omitted)).

On appeal, the petitioner argues that Sanchez’ testimony and the alleged discrepancies in the surveillance

videos undermine the credibility of the victim’s testimony, leaving the petitioner’s alibi testimony as the

only credible evidence as to whether he was involved

in any kidnapping and sexual assault of the victim. In

further support of his claim, the petitioner points to

several inconsistencies in the evidence regarding the

victim’s recounting of events. Specifically, he points to

the testimony of the motorist that the victim had said

she was thrown out of a truck and, by contrast, to the

testimony of one of the responding police officers that

the victim said she had been pushed out of a Nissan

Maxima. The petitioner also relies on the fact that the

victim informed the police officers that she had been

sexually assaulted outside the car on the pavement,

whereas she later reported and testified that the assault

took place in the backseat of the car. The petitioner

then points to the testimony of a police officer that it

had been raining on the day of the assault and that he

did not recall seeing any mud on the victim. On the

basis of these inconsistencies, the petitioner argues:

‘‘As . . . Enns testified, the purpose of the surveillance

video was to provide independent corroboration for the

[victim’s] allegations. . . . [The victim’s] credibility at
the [first] criminal trial was already severely impeached,

the jury [having been] unable to reach a verdict of guilty.

The surveillance video and corresponding identification

of the [victim] by . . . Enns bolstered the [victim’s]

testimony, providing extrinsic support of veracity.’’

(Citation omitted.) Without such corroboration, the

petitioner asserts, the respondent cannot surmount the

inconsistencies within the victim’s testimony. Thus,

‘‘[w]hen the evidence presented at the criminal trial is

coupled with . . . Sanchez’ testimony at the habeas

trial, this evidence is sufficient to ‘induce in the mind

of the trier a reasonable belief’ that [the petitioner] is

actually innocent.’’ We are not persuaded.

Initially, we agree with the habeas court that the

evidence adduced at the habeas trial did not undermine

the reliability of the video depicting the exterior of

Victoria’s Market. Although Sanchez initially testified

that there was no camera located outside of Victoria’s

Market, after viewing the actual video in question, he

clarified that there was a camera mounted inside Victoria’s Market that looked out to the parking lot and that

the images on the video of the exterior depicted what

one would see from that camera in 2009. Further, as

determined by the habeas court, the activities captured

by both surveillance videos depict a consistent ‘‘chronological flow: the car arrives (outside view 02:16:17); the

individual exits the car and begins walking to the store

(outside view 02:16:27); the entrance door opens and

the individual enters the store (inside view 02:16:41);

the individual exits the store (inside view 02:16:55); the

individual passes in front of the camera and goes to

the waiting vehicle (outside view 02:17:05); and the

vehicle leaves the parking lot (outside view 02:17:33).’’

There are no apparent inconsistencies between the

two videos.

Moreover, even if we assume, arguendo, that the evidence introduced at the habeas trial did call into question the reliability of the videos, undermining one piece

of evidence against the petitioner does not constitute

‘‘affirmative evidence’’ that he is actually innocent. See

Gould v. Commissioner of Correction, supra, 301 Conn.

561. To prove an actual innocence claim, ‘‘petitioners

must affirmatively demonstrate that they are in fact

innocent’’ by establishing, through clear and convincing

evidence, that they did not commit the crime, a third

party committed the crime, or no crime occurred.

(Emphasis omitted.) Id. This burden is not met by simply ‘‘[d]iscrediting the evidence on which the conviction

rested . . . .’’ Id., 567; see also Myers v. Commissioner

of Correction, supra, 215 Conn. App. 616–17.

The evidence produced at the petitioner’s habeas trial

did not unquestionably establish the petitioner’s innocence but was offered merely to attempt to discredit a

portion of the state’s evidence at the underlying criminal

trial. Thus, the petitioner did not satisfy the clear and
convincing standard. Undermining the credibility of the

victim’s testimony by questioning the reliability of the

surveillance video would not negate the other ample

evidence of the petitioner’s guilt that was admitted at

his criminal trial, which included evidence that the petitioner’s DNA was found in the victim, evidence that

tire marks at the crime scene matched the petitioner’s

vehicle, cell phone location data placing him near the

scene at the relevant time, and evidence that the petitioner was found in the same location several days later

with another sex worker in a car matching the vehicle

described by the victim. At most, undermining the credibility of the victim’s testimony could have raised a reasonable doubt in the minds of the jury. That, however, is

not enough to satisfy the clear and convincing standard

under Gould and Miller. See Gould v. Commissioner

of Correction, supra, 301 Conn. 560–61 (‘‘Actual innocence is not demonstrated merely by showing that there

was insufficient evidence to prove guilt beyond a reasonable doubt. . . . Rather, actual innocence is demonstrated by affirmative proof that the petitioner did

not commit the crime.’’ (Citations omitted.)); Miller v.

Commissioner of Correction, supra, 242 Conn. 795

(‘‘the clear and convincing evidence standard . . . forbids relief whenever the evidence is loose, equivocal

or contradictory’’ (emphasis added; internal quotation

marks omitted)).

Accordingly, for the foregoing reasons, we conclude

that the habeas court did not err in rejecting the petitioner’s actual innocence claim.

II

The petitioner next claims that the habeas court

improperly concluded that he failed to prove that his

standby counsel, Romano, had provided ineffective

assistance. In particular, the petitioner argues, ‘‘the

actions of standby counsel . . . served to distort and

blur the lines [between retained or assigned] counsel

and standby counsel, and the result was that the petitioner was placed in a position where it was impossible

for him to discern what was within and what was

beyond the scope of that relationship.’’ (Internal quotation marks omitted.) He argues that, as a result of

Romano’s overreach in his role as standby counsel to

that of acting as retained or assigned counsel, Romano

had a duty to inform the petitioner of a potential legal

claim under State v. Lenarz, 301 Conn. 417, 22 A.3d

536 (2011), cert. denied, 565 U.S. 1156, 132 S. Ct. 1095,

181 L. Ed. 2d 977 (2012),8 which arose from the interception of the petitioner’s prison correspondence prior to

the petitioner’s first criminal trial. The respondent

argues that, ‘‘by knowingly and intelligently waiving

his sixth amendment right to counsel and electing to

represent himself, the petitioner no longer had a right to

effective representation of any kind and cannot obtain

habeas relief based on a claim that standby counsel
rendered deficient performance.’’ We agree with the

respondent.

A sixth amendment claim of ineffective assistance of

counsel is necessarily premised on the fact that the

petitioner was represented by counsel. In addition to

the right to effective assistance of counsel, the sixth

amendment also embodies a right to self-representation. See Faretta v. California, 422 U.S. 806, 819, 95 S.

Ct. 2525, 45 L. Ed. 2d 562 (1975). Notably, ‘‘[t]he right

to counsel and the right to self-representation present

mutually exclusive alternatives. A criminal defendant

has a constitutionally protected interest in each, but

since the two rights cannot be exercised simultaneously, a defendant must choose between them.’’ (Internal quotation marks omitted.) State v. Connor, 292

Conn. 483, 508, 973 A.2d 627 (2009). Therefore, when

a defendant voluntarily and intelligently exercises his

right to self-representation, he waives his sixth amendment right to counsel. See id. A defendant has a right

to either represent himself or to be represented by

counsel, but he does not have any right, under the

federal or Connecticut constitutions, to hybrid representation. See, e.g., State v. Gethers, 197 Conn. 369,

384–87, 497 A.2d 408 (1985).

Pursuant to Practice Book § 44-4,9

the court has discretion to appoint standby counsel for self-represented

defendants in criminal matters. Although a court may

appoint standby counsel, ‘‘a defendant does not have a

state or federal constitutional right to standby counsel.’’

State v. Oliphant, supra, 47 Conn. App. 281. ‘‘Absent

a constitutional right to standby counsel, a defendant

generally cannot prove standby counsel was ineffective.’’ United States v. Schmidt, 105 F.3d 82, 90 (2d

Cir.), cert. denied, 522 U.S. 846, 118 S. Ct. 130, 139

L. Ed. 2d 80 (1997). It follows that a self-represented

petitioner has no grounds on which to claim ineffective

assistance of standby counsel ‘‘because after deciding

to proceed pro se, he [has] no constitutional right to

the effective assistance of counsel in any capacity.’’

State v. Oliphant, supra, 281; see also State v. Kenney,

53 Conn. App. 305, 327, 730 A.2d 119 (having chosen

to represent himself, ‘‘defendant is the master of his

fate and cannot . . . complain that he was denied the

effective assistance of counsel’’), cert. denied, 249

Conn. 930, 733 A.2d 851 (1999).

As this court noted in Oliphant, the United States

Supreme Court has recognized an exception to this rule

that allows a petitioner to assert a sixth amendment

claim when standby counsel’s actions interfered with

the petitioner’s right of self-representation, including

his right to make tactical decisions and to maintain the

appearance before the jury of one who is defending

himself. See State v. Oliphant, supra, 47 Conn. App.

281, citing McKaskle v. Wiggins, 465 U.S. 168, 177–79,

104 S. Ct. 944, 79 L. Ed. 2d 122 (1984). In the present
case, the petitioner does not claim that Romano, as

standby counsel, did too much and, hence, interfered

with his right of self-representation. Instead, he claims

that Romano did too little after giving the petitioner the

impression that he would provide legal advice typically

provided by retained or appointed counsel. We are not

persuaded.

The following additional facts are relevant to our

review of this claim. Following the mistrial of the petitioner’s first criminal trial, Romano was appointed to

represent the petitioner. On September 7, 2012, the petitioner informed the court that he wanted to discharge

Romano and represent himself. That same day, due to

the petitioner’s disruptive behavior, the court, Alexander, J., ordered a competency evaluation pursuant to

General Statutes § 54-56d.10 On the basis of the petitioner’s evaluation, the court, Dewey, J., found him competent on October 23, 2012. The court, Dewey, J., thereafter canvassed the petitioner to ensure that he was

knowingly and voluntarily waiving his right to counsel

and advised him of the risks associated with self-representation. The petitioner stated that he understood the

risks and still wanted to represent himself. The court

then granted the petitioner’s request, ordered Romano

to act as standby counsel, and explained to the petitioner standby counsel’s limited role.11 The petitioner

went on to represent himself at multiple hearings, filed

and argued numerous motions and, on several occasions, reaffirmed his desire to continue to represent

himself.

On June 4, 2013, the parties appeared in court for

jury selection for the petitioner’s retrial. During that

day’s proceedings, the petitioner refused to participate

in jury selection. Because the petitioner had twice

attempted to leave the courtroom and had acted in a

belligerent fashion toward the court, the court ordered

the petitioner removed from the courtroom. Despite

the petitioner’s statement that he did not want ‘‘Romano

to be on my case, I don’t want him as a standby,’’ the

court ordered Romano to act as full counsel to proceed

with jury selection.12 Romano conducted voir dire in

the petitioner’s absence for the remainder of the day.

The following day, June 5, 2013, the petitioner returned

to the courtroom and renewed his request to represent

himself. Romano thereafter resumed his role as standby

counsel, and the petitioner represented himself for the

remainder of jury selection. The petitioner then fell ill

and the matter was suspended.13 On January 24, 2014,

the petitioner entered a guilty plea pursuant to the

Alford doctrine to one count of kidnapping in the second degree. The petitioner represented himself at the

plea hearing with Romano acting as standby counsel.

At the habeas trial, Romano testified that he had

assisted the petitioner as standby counsel by researching

law, drafting and filing motions, and finding addresses
and contact information for potential witnesses, as well

as being the petitioner’s means of interacting with

experts and investigators. Romano also recalled discussing with the petitioner cell phone records, tire mark

evidence, experts, the Victoria’s Market surveillance

videos, and how to authenticate records.

Romano further testified that he explained to the

petitioner his limitations in acting as standby counsel

‘‘in terms of what [he] could do with respect to [the

petitioner’s] requests.’’ Romano testified, however, that

he viewed it as his duty to apprise the petitioner of a

potential issue or legal claim if one became apparent

to him, even if it had not been raised by the petitioner.

For example, Romano discussed immigration and

deportation issues with the petitioner that could result

from his conviction.

On cross-examination, Romano reiterated that, as

standby counsel, he answered whatever questions the

petitioner raised or asked him, tried to help engage

experts, and approached the prosecutor at the petitioner’s request to resolve the case via a plea agreement.

Romano provided the petitioner with all of the discovery he received but complied with any court instructions that limited specific information (e.g., the redaction of the victim’s name). After his role as standby

counsel ceased, Romano refused to answer questions

posed by the petitioner when the petitioner contacted

his office seeking materials, case law or other items of

interest. Romano informed the petitioner that he could

provide him with names of attorneys the petitioner

could consult for further legal advice. Nevertheless,

Romano did assist the petitioner to some degree after

the plea and sentencing by gathering parts of his file

and some evidence.

At the habeas trial, the petitioner testified that his

relationship with Romano ‘‘was respectful, but as far

as helping [him] to pursue what [he] wanted to pursue

. . . [Romano] wasn’t helpful.’’ The petitioner testified

that, from the beginning, he had concerns about

Romano’s involvement in his case because Romano’s

reputation was not ‘‘good’’ among the petitioner’s fellow

inmates. The petitioner further testified that, initially,

there was some confusion as to Romano’s status as

standby counsel, stemming from the fact that he had

objected to Romano’s being appointed as standby counsel, ‘‘but after considering how much work and . . .

how [he was] going to go about doing stuff, [he] realized

having someone, even though [he] may not like . . .

even though [he] may disagree with this person . . .

is better than having no one at all.’’

The petitioner recalled that his issues with his prior

attorneys related to the fact that they did not seem

‘‘interested in’’ obtaining certain records that he

believed would demonstrate his innocence. Similarly,

in relation to Romano’s actions as standby counsel, the
petitioner testified that ‘‘there were several things [he

had] asked . . . Romano to do in the course of . . .

being [his] standby counsel. And, again, they weren’t

done.’’ In particular, the petitioner testified that he had

asked Romano to send an investigator to Victoria’s Market to take photographs of the building to demonstrate

that there were no surveillance cameras in the parking

lot but that Romano had not done so. The petitioner

further testified that, although he discussed the plea

with Romano, he discussed neither potential legal

claims on appeal or on habeas, nor the elements of

kidnapping with Romano.

In addition, the petitioner testified about a letter intercepted by the Department of Correction in November,

2010, prior to the first criminal trial. According to the

petitioner, he was attempting to contact attorneys who

might represent him. The letter detailed the procedural

history and facts related to the petitioner’s then pending

charges and asked for assistance in his case. The

intended recipient was ‘‘Mr. Michael Banks’’ in Philadelphia, Pennsylvania. Although the petitioner signed the

letter with his own name, the return address on the

envelope in which the letter was enclosed was ‘‘William

Patterson, #259062, Walker C.I., 1153 East Street, South,

Suffield, CT 06080.’’

At the habeas trial, Enns explained that, as part of

the criminal investigation, Farmington police made a

request to the Department of Correction, pursuant to

established procedures, to review the correspondence

the petitioner had sent while incarcerated. Enns noted

that there is a procedure through which the petitioner

could send legal correspondence while incarcerated,

that the petitioner was made aware of the procedure,

and that, if the petitioner had followed that procedure,

any legal correspondence would not have been intercepted or reviewed by the Department of Correction.

On cross-examination, the petitioner acknowledged

sending letters in violation of Department of Correction

regulations regarding legal correspondence.

As a result of the mail review, the Department of

Correction provided the intercepted letter to the police

and, consequently, to the state’s attorney. The letter

and a police report generated regarding the letter were

submitted as evidence at the habeas trial. The report

provided to the state’s attorney reads: ‘‘This fax

included a copy of an envelope addressed to Mr.

Michael Banks with a return name of William Patterson

#259062, and a letter written by [the petitioner]. In this

letter he admits to using a [‘friend’s’] information to

send this letter, because his mail is monitored and held.

He is requesting assistance from Banks law firm,

[denies] being involved in the sexual assaults, and

details his case.’’

The letter was contained in the discovery materials

given to Romano when he was acting as standby counsel
for the petitioner. At the habeas trial, Romano testified

that he did not independently recall receiving in hand

the state’s discovery materials or providing them to the

petitioner but, after reviewing his records, concluded

that he had done so. Romano testified that, because

the role of standby counsel is limited, when acting as

standby counsel, he does not review discovery materials unless a defendant were to request that he do so.

Therefore, Romano had no specific recollection of

reviewing the discovery materials he provided to the

petitioner and could not recall the letter or issues pertaining to the Department of Correction’s interception

of the letter.

On appeal, the petitioner claims that, because Romano

took on more responsibility than that required of

standby counsel, Romano ‘‘derivatively had a duty to

inform the petitioner of potential legal issues arising

from the petitioner’s intercepted prison correspondence.’’ The petitioner claims that, by failing to inform

the petitioner of those potential legal issues, Romano

‘‘rendered deficient performance.’’ In support of this

argument, the petitioner points to Romano’s testimony

that he thought he may have given the petitioner guidance about matters that were ‘‘outside of the confines

of issues [the petitioner] strictly brought’’ to him as

requests for assistance, as well as Romano’s statement

that he believed it would be his ‘‘duty to inform [the

petitioner] about a potential [legal issue]’’ outside of

what the petitioner had discussed with him. The petitioner’s claim is without merit.

The petitioner voluntarily and intelligently exercised

his right to self-representation, waiving his sixth amendment right to counsel. Accordingly, the petitioner had

no constitutional right to the effective assistance of

counsel in any capacity. See, e.g., State v. Wang, 312

Conn. 222, 262–63 n.37, 92 A.3d 220 (2014); State v.

Oliphant, supra, 47 Conn. App. 281; see also State v.

Kenney, supra, 53 Conn. App. 327.

The petitioner cites no legal authority supporting this

claim, nor does he identify a legal source of the ‘‘duty’’

that standby counsel allegedly had to inform the petitioner of all potential motions. No such duty is set forth

in Practice Book § 44-5, which provides: ‘‘If requested

to do so by the defendant, the standby counsel shall

advise the defendant as to legal and procedural matters.

If there is no objection by the defendant, such counsel

may also call the judicial authority’s attention to matters

favorable to the defendant. Such counsel shall not interfere with the defendant’s presentation of the case and

may give advice only upon request.’’ (Emphasis added.)

Although the petitioner has not pointed us to any

authority for his ineffective assistance of counsel claim

against Romano, we find the decision of the United

States Court of Appeals for the Second Circuit in United

States v. Schmidt, supra, 105 F.3d 82, instructive. In
Schmidt, the self-represented defendant claimed that

her standby counsel’s representation at her criminal

trial ‘‘was so deficient and prejudicial to her that it

constituted ineffective assistance of counsel. Specifically, she criticize[d] his failure to call witnesses and

present documentary evidence in support of her diminished capacity defense.’’ Id., 89. In addressing the defendant’s claim, the court first noted that the defendant

had exercised her sixth amendment right to represent

herself, that there is no constitutional right to hybrid

representation and that standby counsel’s duties ‘‘are

considerably more limited than the obligations of

retained or appointed counsel.’’ Id., 90. Nevertheless,

the court posited: ‘‘Perhaps in a case where standby

counsel held that title in name only and, in fact, acted

as the defendant’s lawyer throughout the proceedings,

we would consider a claim of ineffective assistance

of standby counsel.’’ Id. It then considered the tasks

standby counsel performed during the defendant’s criminal trial and concluded that such a line had not been

crossed. Id., 90–91. In particular, the court noted that,

during the trial, standby counsel had examined and

cross-examined witnesses and delivered the closing

argument. Id., 90. The court further noted that,

‘‘[a]lthough [standby counsel’s] role expanded as the

case continued, he did not play the same role that

defense counsel normally would in preparing the strategy for a criminal defense.’’ Id. Consequently, the court

concluded that, ‘‘[b]ecause [the defendant] proceeded

pro se, she may not now assign blame for her conviction

to standby counsel.’’ Id.

In the present case, the evidence reflects that

Romano had a much more limited role than did standby

counsel in Schmidt. He neither examined witnesses

nor argued before the jury. Aside from a motion for

disclosure pursuant to the petitioner’s request that

Romano contact a DNA expert, Romano did not argue

any motions before the court. Romano testified that he

mostly responded to requests from the petitioner, as is

typical of standby counsel. The fact that Romano may

have, on occasion, offered unsolicited advice does not

mean that he undertook to represent the petitioner as

retained or appointed counsel or somehow changed the

petitioner’s status from self-represented to represented

by counsel. Further, the only instance in which Romano

assumed the role of ‘‘full’’ counsel was when the court

ordered the petitioner removed from jury selection on

June 4, 2013, and Romano conducted voir dire of potential jurors until the petitioner resumed representing

himself.14 This interruption in self-representation lasted

just one day before the petitioner, representing himself,

continued with voir dire on June 5, 2013. Significantly,

before jury selection resumed on June 5, 2013, the court

specifically reaffirmed that Romano’s role was that of

standby counsel only.15

In addition, nothing in the record indicates that the
petitioner was confused about the role of standby counsel. The court explained to the petitioner the limited

role of standby counsel when it granted his motion

to represent himself. Thereafter, the petitioner never

expressed to the court any uncertainty about Romano’s

role. In addition, the petitioner presented no evidence

to the habeas court that he relied on Romano to provide

unsolicited legal advice or to identify legal issues and

bring them to the petitioner’s attention.

As was true in Schmidt, Romano did not play the

same role that defense counsel normally would play.

Romano’s actions readily fell into the category of

‘‘assist[ing] the pro se defendant in overcoming routine

procedural . . . obstacles to the completion of some

specific task . . . that the defendant has clearly shown

that he wishes to complete.’’ McKaskle v. Wiggins,

supra, 465 U.S. 183. In fact, despite whatever assistance

Romano provided to him, the petitioner unmistakably

was representing himself through the conclusion of his

criminal matter. As was true of the defendant in

Schmidt, the petitioner in the present case repeatedly

affirmed to the court that he was representing himself.

‘‘Having chosen to represent [himself, the petitioner]

may not now be heard to complain that [his] own shortcomings spell out some sort of constitutional deprivation.’’ United States v. Schmidt, supra, 105 F.3d 90; see

also United States v. Archambault, 740 Fed. Appx. 195,

199 (2d Cir. 2018) (defendant who made opening and

closing arguments to jury and examined witnesses

could not assert claim of ineffective assistance as to

standby counsel); United States v. Morrison, 153 F.3d

34, 55 (2d Cir. 1998) (defendant’s ineffective assistance

of standby counsel claim failed because defendant

‘‘retained control of his own defense throughout the

proceedings’’); People v. Kevorkian, 248 Mich. App. 373,

426, 639 N.W.2d 291 (2001) (ineffective assistance of

standby counsel claim failed because standby counsel

‘‘did nothing to interfere with [the] defendant’s right to

control the case or to alter the jury’s perception that

[the] defendant was representing himself’’), appeal

denied, 465 Mich. 973, 642 N.W.2d 681, cert. denied,

537 U.S. 881, 123 S. Ct. 90, 154 L. Ed. 2d 137 (2002).

Consequently, Romano was standby counsel in reality,

as well as in name, and the habeas court properly denied

the petitioner’s claim of ineffective assistance of counsel in count six of his amended petition.

III

The petitioner last claims that the court improperly

dismissed count two of his habeas petition pursuant to

Practice Book § 23-29 (2) and (5)16 because ‘‘[this] claim

[goes] to the knowing and voluntary nature of the plea,

[and is] thus not waived by [the petitioner’s] Alford plea

and would provide a basis for relief.’’ The respondent

disagrees, arguing that the habeas court correctly held

that the petitioner’s due process claim in count two of
the habeas petition related solely to a pretrial constitutional defect and, therefore, was waived by the petitioner’s guilty plea. We agree with the respondent.

‘‘The standard of review of a motion to dismiss is

. . . well established. In ruling upon whether a [habeas

petition] survives a motion to dismiss, a court must

take the facts to be those alleged in the [petition],

including those facts necessarily implied from the allegations, construing them in a manner most favorable

to the pleader. . . . The conclusions reached by the

[habeas] court in its decision to dismiss the habeas

petition are matters of law, subject to plenary review.

. . . Thus, [w]here the legal conclusions of the court

are challenged, we must determine whether they are

legally and logically correct . . . and whether they find

support in the facts in the record. . . .

‘‘It is well settled that [t]he petition for a writ of

habeas corpus is essentially a pleading and, as such, it

should conform generally to a complaint in a civil

action. . . . The principle that a plaintiff may rely only

upon what he has alleged is basic. . . . It is fundamental in our law that the right of a plaintiff to recover is

limited to the allegations of his complaint.’’ (Internal

quotation marks omitted.) 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). ‘‘Thus, as it would do in evaluating the allegations in a civil complaint, in evaluating

the legal sufficiency of allegations in a habeas petition,

a court must view the allegations in the light most

favorable to the petitioner, which includes all facts necessarily implied from the allegations.’’ Finney v. Commissioner of Correction, 207 Conn. App. 133, 142, 261

A.3d 778, cert. denied, 339 Conn. 915, 262 A.3d 134

(2021).

‘‘As a general rule, an unconditional plea of guilty

or nolo contendere, intelligently and voluntarily made,

operates as a waiver of all nonjurisdictional defects and

bars the later assertion of constitutional challenges to

pretrial proceedings. . . . Therefore, only those issues

fully disclosed in the record which relate either to the

exercise of jurisdiction by the court or to the voluntary

and intelligent nature of the plea are ordinarily appealable after a plea of guilty or nolo contendere.’’ (Citations

omitted; footnote omitted; internal quotation marks

omitted.) State v. Christensen, 157 Conn. App. 290,

295–96, 115 A.3d 1138 (2015); see also Tollett v. Henderson, 411 U.S. 258, 267, 93 S. Ct. 1602, 36 L. Ed. 2d

235 (1973) (‘‘[w]hen a criminal defendant has solemnly

admitted in open court that he is in fact guilty of the

offense with which he is charged, he may not thereafter

raise independent claims relating to the deprivation of

constitutional rights that occurred prior to the entry of

the guilty plea’’). Thus, to obtain review of a nonjurisdictional claim, a petitioner must demonstrate that there
is ‘‘such an interrelationship’’ between the claimed error

‘‘and the plea that it can be said [that] the plea was not

voluntary and intelligent because of’’ the error. Dukes

v. Warden, 161 Conn. 337, 344, 288 A.2d 58 (1971), aff’d,

406 U.S. 250, 92 S. Ct. 1551, 32 L. Ed. 2d 45 (1972); see

also Mincewicz v. Commissioner of Correction, 162

Conn. App. 109, 116, 129 A.3d 791 (2015).

On appeal, the petitioner claims that count two of

his petition, if properly construed and read in the light

most favorable to him, stated a claim for habeas relief

because it challenged the knowing and voluntary nature

of his guilty plea and, therefore, should not have been

dismissed prior to a habeas trial or proceedings at which

the petitioner would have had some opportunity to present evidence potentially linking his allegations with

whether his decision to enter a guilty plea was knowingly and voluntarily made. Specifically, the petitioner

argues that ‘‘[a] fair reading of [his] petition and counsel’s arguments clearly indicate that [the petitioner] is

challenging the knowing and voluntary nature of his

plea [because] . . . had the state not learned of his

defense strategy, [the petitioner] would not have

plead[ed] guilty but, instead, would have proceeded

to trial.’’ To resolve this claim we must examine the

allegations in count two of the habeas petition to determine if they properly challenged the knowing and voluntary nature of the petitioner’s guilty plea, thus stating

a cognizable claim for habeas relief.

In count two of the petition, the petitioner alleged

that his ‘‘constitutional right to due process and the

assistance of counsel [were] violated by the state’s interception and possession of documents outlining the petitioner’s defense strategy.’’ Notably, the allegations did

not specify how the interception of these documents

resulted in a violation of the petitioner’s rights to due

process and the assistance of counsel. Nevertheless, a

plain reading of the petitioner’s allegations in count two,

in the context of his entire second revised, amended

petition, leads us to conclude that they are properly

understood as asserting only a claim that, due to

standby counsel’s ineffective assistance, the petitioner

lost the opportunity to have the charges against him

dismissed based on State v. Lenarz, supra, 301 Conn.

419.17 After setting forth the allegations regarding the

interception of his correspondence, the petitioner

alleged: ‘‘No attorney ever placed on the record the fact

that the petitioner’s privileged and confidential defense

strategy had been intercepted by the prosecuting

authority.’’ The petitioner then concluded count two by

alleging: ‘‘No motion to dismiss or other challenge to

the violation of the petitioner’s right to counsel was

raised before the petitioner’s guilty plea.’’ Thus, the

petitioner’s complaint was not that his guilty plea was

involuntary and unknowing but that the charges against

him should have been dismissed.
Further, count two did not contain any allegations

relating to the knowing and voluntary nature of the

petitioner’s guilty plea. The petitioner’s allegations in

count two stand in stark contrast to his allegations in

count four, in which he specifically alleged that his

guilty plea ‘‘was not made knowingly, intelligently, and

voluntarily’’ because he had not been informed that sex

offender treatment would be required as a result of his

plea. Clearly, the petitioner and his counsel understood

how to assert a claim that his guilty plea was not knowing and voluntary. They did so in count four but failed

to do so in count two.

The first time the petitioner specifically argued that

his guilty plea was not knowing or voluntary was in his

memorandum of law in opposition to the respondent’s

motion to dismiss, in which the petitioner argued:

‘‘Because each alleged violation included in the amended

petition is a reflection of the alleged corruption of the

judicial process that induced the petitioner to enter an

unintelligent and involuntary plea, none of these claims

are waived by the petitioner’s guilty plea that was

induced by those errors. . . . Where a criminal defendant believes that it will be impossible to proceed to

trial because the prosecuting authority is in possession

of his entire defense strategy, a guilty plea under those

circumstances can hardly be knowing, intelligent, and

voluntary.’’

Our Supreme Court, however, has held that ‘‘a memorandum of law is not a proper vehicle for supplementing

the factual allegations in a complaint . . . and we do

not believe that a different rule should pertain to habeas

petitions.’’ (Citations omitted.) Nelson v. Commissioner of Correction, 326 Conn. 772, 781–82, 167 A.3d

952 (2017). Therefore, we do not consider the petitioner’s memorandum of law in opposition to the motion to

dismiss in determining whether count two sufficiently

challenged the knowing and voluntary nature of the

petitioner’s guilty plea.

Moreover, at no point in the proceedings did the

petitioner amend his petition to allege that his guilty

plea had been made unknowingly or involuntarily due

to the interception of his legal correspondence. Thus,

as the respondent’s counsel stated at the hearing on

the motion to dismiss, ‘‘although the petitioner . . .

made a number of allegations about how his will was

overborne and he finally gave in . . . and [pleaded]

guilty . . . [the petitioner has] raised seven counts and

not a single one . . . allege[s] that his plea was not

knowing and voluntarily entered.’’18

The petitioner tries to overcome this omission as it

relates to count two by relying on Finney v. Commissioner of Correction, supra, 207 Conn. App. 133. In

Finney, this court addressed the issue of ‘‘whether [a]

petition should be dismissed for failing to state a claim
upon which habeas relief can be granted because the

petitioner’s guilty plea waived collateral attacks on his

conviction that do not go to the voluntary, knowing

and intelligent nature of the plea, and [the] petition

[failed] to make such a claim . . . .’’ (Internal quotation

marks omitted.) Id., 139.

In Finney, the self-represented petitioner filed a petition for a writ of habeas corpus, alleging that he had

been improperly convicted because his trial counsel

had provided him with constitutionally ineffective assistance. Id., 136–37. By way of relief, the petitioner sought

to have the court allow him to withdraw his guilty

plea. Id., 137. Ultimately, this court determined that,

‘‘although . . . the petition [failed] to connect

expressly the asserted allegations of ineffective assistance of counsel directly to whether the petitioner’s

decision to enter a guilty plea was knowing and voluntary . . . it [was] reasonable to infer such an interrelationship from the allegations.’’19 Id., 144. ‘‘Although ultimately it may prove that the petitioner is unable to

produce evidence to support his allegations of ineffective assistance or to demonstrate any causal connection

linking those allegations with his decision to enter a

guilty plea, such speculation cannot support the granting of a motion to dismiss.’’ Id.

This court in Finney explained that ‘‘[t]he allegations

of ineffective assistance of counsel . . . reasonably

[could] be construed as asserting—not expressly, but

by implication—that the petitioner’s decision to plead

guilty was not knowingly made because his trial counsel

had failed to investigate his case properly, to review

the evidence against him or to consider whether a viable

trial strategy existed. In other words, the allegations,

read in the light most favorable to the petitioner as is

required at the pleading stage, suggest that counsel

failed to prepare the case adequately so that the petitioner could have sufficient knowledge of the strength

of the case and could make an informed decision as

to whether to plead guilty. If proven, the petitioner

could be permitted to withdraw the guilty plea, which

is the only relief requested in the petition. In short, read

in the context of the petition as a whole, including the

relief requested, we conclude that the petitioner has

raised allegations that implicitly challenge whether he

knowingly and voluntarily entered a guilty plea, which

states a cognizable claim for habeas relief. Accordingly,

the habeas court improperly granted its own motion to

dismiss.’’ (Emphasis added; footnote omitted.) Id., 146–

47.

As in Finney, the petitioner in the present case

framed count two of his petition as a sixth amendment

ineffective assistance of counsel claim. Nevertheless,

we conclude that, unlike in Finney, the allegations in

count two of the habeas petition did not sufficiently

demonstrate an interrelationship between the ineffec-
tive assistance of counsel and the petitioner’s guilty

plea such that it can be said that the plea was not made

knowingly and voluntarily. See id., 143; Mincewicz v.

Commissioner of Correction, supra, 162 Conn. App.

116.

First, as discussed in part II of this opinion, the petitioner represented himself. Accordingly, because there

was no counsel representing the petitioner, there can

be no ineffective assistance of counsel. Thus, the allegations of ineffective assistance of counsel in count two

cannot demonstrate such an interrelationship between

the nonexistent ineffective assistance of counsel and

the guilty plea such that it can be said that the plea

was not made knowingly and voluntarily. In addition,

as previously noted, unlike in Finney, count two of the

petitioner’s second revised, amended petition, drafted

by counsel, cannot reasonably be read as setting forth

a claim that his guilty plea was not made knowingly

and voluntarily.20

We also find it significant that the petitioner’s appellate brief blends the arguments relating to his claim of

ineffective assistance of standby counsel with his claim

that count two was improperly dismissed: ‘‘[W]hile

standby counsel did not have a duty to pursue a motion

to dismiss based upon the interception of the petitioner’s legal mail, he did have a duty, within the role that

he created during the representation, to inform the petitioner about the significance of the issue. This was

necessary in order for the petitioner to consider pursuing the issue through a motion, and it was necessary

for the petitioner to understand the implications of

his guilty plea.’’ (Emphasis added; internal quotation

marks omitted.) Perhaps more strikingly, the petitioner

argues on appeal that, ‘‘[h]ad [he] been advised by . . .

Romano that a motion in accordance with Lenarz could

be filed and that prejudice could be presumed, resulting

in the dismissal of the charges against him, as [the

petitioner] testified, he would have filed such a motion.

. . . Absent a showing that [the petitioner] knew of

his right to pursue a motion to dismiss on this ground,

and subsequently declined to proceed with its filing,

it cannot be said that his plea was truly knowing and

voluntary.’’ (Citation omitted; emphasis added.)

It is well settled, however, that a plea is made knowingly, voluntarily, and intelligently regardless of

whether the defendant was made aware of every possible motion he would be waiving as a result thereof.

See, e.g., State v. Johnson, 253 Conn. 1, 42, 751 A.2d

298 (2000) (‘‘[i]t is . . . not necessary for the trial court

to canvass the defendant to determine that [he] understands that [his] plea of guilty or nolo contendere operates as a waiver of any challenge to pretrial proceedings’’ (internal quotation marks omitted)); State v.

Gilnite, 202 Conn. 369, 383, 521 A.2d 547 (1987) (‘‘[t]here

is no requirement . . . that the defendant be advised
of every possible consequence of such a plea’’). Furthermore, not knowing which motions he was able to file

is exactly the kind of risk the petitioner knowingly and

willingly assumed when he chose to represent himself.

In fact, the trial court specifically advised him of this

very risk by informing the petitioner during its canvass

that there ‘‘are legal consequences if you don’t file the

right motions at the right time . . . .’’

More to the point, as acknowledged in count two

of his petition, the petitioner was fully aware of the

intercepted legal mail prior to pleading guilty. In fact,

he stated at his plea proceeding and sentencing hearing

that, ‘‘[f]rom the inception of these charges, the Department of Correction has been holding on to my mails,

turning [them] over to the prosecutor.’’ In cases involving the claim that a guilty plea was made unknowingly or

involuntarily, the petitioner typically must demonstrate

unawareness of certain facts or issues when pleading

guilty. For example, in Finney, the petitioner’s allegations specifically referenced counsel’s failure to prepare

the case adequately so that the petitioner could have

sufficient knowledge of the strength of the case and

could make an informed decision as to whether to

plead guilty. See Finney v. Commissioner of Correction, supra, 207 Conn. App. 146–47; see also Dukes v.

Warden, supra, 161 Conn. 345 (court did not err in

concluding that plea was not rendered involuntary and

unintelligent as result of alleged conflict of interest

when petitioner knew when he engaged counsel that

counsel was representing two defendants in unrelated

case in which petitioner was codefendant); Mincewicz

v. Commissioner of Correction, supra, 162 Conn. App.

116–17 (‘‘[i]f any ineffective assistance conceivably

occurred, it was antecedent to the plea hearing and

known by the petitioner and, as such, was effectively

waived upon entry of the plea’’ (emphasis added));

accord Henderson v. Commissioner of Correction, 181

Conn. App. 778, 799, 189 A.3d 135 (same), cert. denied,

329 Conn. 911, 186 A.3d 707 (2018). Accordingly, the

petitioner’s plea was in fact made knowingly and voluntarily even if he was unaware that he could file a motion

to dismiss based on Lenarz.

We therefore conclude that, read in the context of

the habeas petition as a whole, including the relief

requested, count two of the second revised, amended

petition failed to allege facts that directly or implicitly

demonstrated ‘‘an interrelationship’’ between the

claimed ineffective assistance of counsel and the guilty

plea such that it can be said that the plea was not made

knowingly and voluntarily. The petitioner thus did not

state a cognizable claim for relief. Accordingly, the

habeas court properly dismissed count two of the petition.

The judgment is affirmed.

In this opinion the other judges concurred.
1

In his appellate brief, the petitioner also claimed that the habeas court

erred in dismissing count four of the amended petition. In particular, the

petitioner argued that the court improperly dismissed his claim in count

four that his guilty plea was not knowing and voluntary because he was not

informed that he would be ordered to participate in sex offender treatment

as a result of his plea. In his appellate brief, the respondent, the Commissioner of Correction, argued that the habeas court did not dismiss the sex

offender treatment claim but dismissed only the portion of count four that

alleged a due process violation regarding jury selection, which occurred

before the petitioner entered his guilty plea. At oral argument before this

court, the petitioner’s counsel abandoned the sex offender treatment claim.

Consequently, we do not address it further. See, e.g., Cunningham v. Commissioner of Correction, 195 Conn. App. 63, 65 n.1, 223 A.3d 85 (2019)

(declining to review claims counsel expressly abandoned at oral argument),

cert. denied, 334 Conn. 920, 222 A.3d 514 (2020). Furthermore, because the

petitioner mentioned but did not otherwise address in his brief the habeas

court’s dismissal of the jury selection claim, we deem any claim related to

that ruling abandoned. See, e.g., Antonio A. v. Commissioner of Correction,

205 Conn. App. 46, 80–81, 256 A.3d 684 (‘‘[W]e are not required to review

issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required

in order to avoid abandoning an issue by failure to brief the issue properly.’’

(Internal quotation marks omitted.)), cert. denied, 339 Conn. 909, 261 A.2d

744 (2021).

2

‘‘North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, L. Ed. 2d 162 (1970).

‘Under North Carolina v. Alford, [supra, 37] . . . a criminal defendant is

not required to admit his guilt, but consents to being punished as if he were

guilty to avoid the risk of proceeding to trial. . . . A guilty plea under the

Alford doctrine is a judicial oxymoron in that the defendant 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 nevertheless.’ (Emphasis

omitted.) State v. Wheatland, 93 Conn. App. 232, 234 n.1, 888 A.2d 1098,

cert. denied, 277 Conn. 919, 895 A.2d 793 (2006).’’

3 See Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215

(1963) (suppression by prosecution of evidence favorable to accused upon

request violates due process when evidence is material either to guilt or to

punishment, irrespective of good faith or bad faith of prosecution).

4 See footnote 1 of this opinion.

5 Although the court never dismissed the portion of count four of the

second revised, amended petition, which alleged that the petitioner’s guilty

plea was not knowingly and voluntarily made because he had not been

informed that his plea would result in sex offender treatment, the petitioner

did not pursue that claim at trial and apparently abandoned it in light of

his pursuit of relief from that requirement in the criminal court. In any

event, as previously noted, during oral argument before this court, the

petitioner’s appellate counsel expressly abandoned any claim related to sex

offender treatment. See footnote 1 of this opinion.

6 The petitioner argues that the newly discovered evidence requirement

‘‘is especially concerning for individuals situated as [is the petitioner], who

was incarcerated and proceeded pro se in the underlying criminal matter.’’

To the extent that the petitioner is suggesting that we should abandon the

newly discovered evidence requirement for self-represented petitioners, we

decline to do so. ‘‘[T]he right of self-representation provides no attendant

license not to comply with relevant rules of procedural and substantive

law.’’ (Internal quotation marks omitted.) Ajadi v. Commissioner of Correction, 280 Conn. 514, 549, 911 A.2d 712 (2006).

7

In his appellate brief, the petitioner acknowledges this court’s binding

precedent that newly discovered evidence is required to succeed on a claim

of actual innocence. He maintains, however, that this precedent ‘‘remains

an open question in the Connecticut Supreme Court.’’ During oral argument

before this court, the petitioner’s appellate counsel stated that she raised

the claim solely to preserve it for review by our Supreme Court.

8

In State v. Lenarz, supra, 301 Conn. 419, our Supreme Court held that,

when a ‘‘case is irreversibly tainted by the prosecutor’s intrusion into the

privileged communications [between a defendant and his attorney], the only

available appropriate remedy is dismissal of the charge of which he was

convicted.’’ The court explained ‘‘generally that prejudice may be presumed

when the prosecutor has invaded the attorney-client privilege by reading

privileged materials containing trial strategy, regardless of whether the invasion of the attorney-client privilege was intentional. We further conclude
that the state may rebut that presumption by clear and convincing evidence.

Finally, we conclude that, when a prosecutor has intruded into privileged

communications containing a defendant’s trial strategy and the state has

failed to rebut the presumption of prejudice, the court, sua sponte, must

immediately provide appropriate relief to prevent prejudice to the defendant.’’ Id., 425–26.

9 Practice Book § 44-4 provides in relevant part: ‘‘When a defendant has

been permitted to proceed without the assistance of counsel, the judicial

authority may appoint standby counsel, especially in cases expected to be

long or complicated or in which there are multiple defendants. A public

defender or special public defender may be appointed as standby counsel

only if the defendant is indigent and qualifies for appointment of counsel

under General Statutes § 51-296, except that in extraordinary circumstances

the judicial authority, in its discretion, may appoint a special public defender

for a defendant who is not indigent.’’

10 General Statutes § 54-56d provides in relevant part: ‘‘(a) A defendant

shall not be tried, convicted or sentenced while the defendant is not competent. For the purposes of this section, a defendant is not competent if the

defendant is unable to understand the proceedings against him or her or

to assist in his or her own defense. . . .

‘‘(d) If the court finds that the request for an examination is justified and

that, in accordance with procedures established by the judges of the Superior

Court, there is probable cause to believe that the defendant has committed

the crime for which the defendant is charged, the court shall order an

examination of the defendant as to his or her competency. . . .’’

Although the focus of the competency evaluation is the defendant’s competency to stand trial, the court stated that it was ordering the evaluation

‘‘specifically for the purpose of determining [the petitioner’s] competence

to represent himself at trial . . . .’’ We note that, strictly speaking, once a

defendant is found competent to stand trial, the rules do not provide for a

separate competency determination as to the waiver of the right to counsel

and the right to self-representation. Instead, Practice Book § 44-3 provides:

‘‘A defendant shall be permitted to waive the right to counsel and shall be

permitted to represent himself or herself at any stage of the proceedings,

either prior to or following the appointment of counsel. A waiver will be

accepted only after the judicial authority makes a thorough inquiry and is

satisfied that the defendant:

‘‘(1) Has been clearly advised of the right to the assistance of counsel,

including the right to the assignment of counsel when so entitled;

‘‘(2) Possesses the intelligence and capacity to appreciate the consequences of the decision to represent oneself;

‘‘(3) Comprehends the nature of the charges and proceedings, the range

of permissible punishments, and any additional facts essential to a broad

understanding of the case; and

‘‘(4) Has been made aware of the dangers and disadvantages of selfrepresentation.’’

Nevertheless, the petitioner made no claim in his habeas petition regarding

the court’s use of a § 54-56d competency evaluation in connection with his

request to waive his right to counsel and to represent himself.

11 The following colloquy occurred between the court and the petitioner:

‘‘The Court: Now, you want to proceed without an attorney. Is that what

you indicated?

‘‘[The Petitioner]: Yes, Your Honor.

‘‘The Court: Do you want an attorney to be on standby to help you file

the legal motions, sir? You can have that option.

‘‘[The Petitioner]: Okay. I’m not sure at this point, to be quite honest

with you.

‘‘The Court: Well, what I’ll do is, I’ll appoint one for standby just to assist

you in the law. Do you understand that?

‘‘[The Petitioner]: Okay.

‘‘The Court: But it’s—the attorney will be assisting you in the legal aspect

of it. Do you understand?

‘‘[The Petitioner]: Okay. . . .

‘‘The Court: What I’m going to do is order standby counsel, order Attorney

Romano to do that. You are to consult with him whenever you need assistance in filing those legal motions that you have. Do you understand that?

And that’s assistance, so that you don’t do something in the motion that’s

going to cause the motion not to be heard or not to be properly filed, so

that you have the basis of the law covered in the motion, so that you’re

preserving your record. Do you understand that, sir?

‘‘[The Petitioner]: Yes, I understand that, ma’am.’’

12 The following colloquy occurred between the court and Romano:

‘‘The Court: You are standby, counsel. You’re the only one prepared to
go forward right now. Bring in the jury. . . .

‘‘[Romano]: Your Honor, I do have another request, if I may?

‘‘The Court: Yes.

‘‘[Romano]: The request is, if Your Honor is—am I right in assuming that

you’re directing me to go forward in abstentia as standby—

‘‘The Court: Yes.

‘‘[Romano]: —counsel? Are you now appointing me as full?

‘‘The Court: Yes.’’

13 The record is unclear as to whether a mistrial was declared. Nevertheless, jury selection was not completed, and a jury was not empaneled.

14 The petitioner does not raise a claim of ineffective assistance of counsel

with respect to the manner in which Romano conducted voir dire on June

4, 2013.

15 The following colloquy occurred between the court and Romano:

‘‘[Romano]: Your Honor, if—just a question with respect to the procedures.

If at any point during the voir dire [the petitioner] has questions of me, how

would you like to field that?

‘‘The Court: At the end of his voir dire, he can ask whatever questions

he wishes of you, briefly, but we’re not going to have two attorneys. He’s

representing himself.

‘‘[Romano]: I understand.

‘‘The Court: Yes.

‘‘[Romano]: I just wanted to clear up the procedures so he understands

and I know what my role is and he knows what his role is—

‘‘The Court: His role is—

‘‘[Romano]: —and it’s clearly defined.

‘‘The Court: —to conduct the voir dire. Your role is standby counsel—

‘‘[Romano]: Thank you very much.

‘‘The Court: —to address legal questions, not factual questions, legal

questions.’’

16 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 . . .

‘‘(2) the petition, or a count thereof, fails to state a claim upon which

habeas corpus relief can be granted . . .

‘‘(5) any other legally sufficient ground for dismissal of the petition exists.’’

17 See footnote 8 of this opinion.

18 As we previously noted, this statement is not accurate, as the petitioner

did allege in count four that his plea was not knowingly and voluntarily

made because he had not been adequately advised of the requirement that

he undergo sex offender treatment.

19 This inference was ‘‘particularly true given the early stage of the proceedings and the fact that the petition was filed by a self-represented party.’’

Finney v. Commissioner of Correction, supra, 207 Conn. App. 144.

20 In reaching our decision, we are mindful that, unlike in Finney, the

petitioner in the present case was represented by counsel when he filed

the second revised, amended habeas petition. Accordingly, there is no reason

to construe the allegations in the petition with the same degree of leniency

this court used in Finney. Cf. Gilchrist v. Commissioner of Correction, 334

Conn. 548, 560, 223 A.3d 368 (2020) (‘‘when a petitioner has proceeded [as

a self-represented party] . . . courts should review habeas petitions with

a lenient eye, allowing borderline cases to proceed’’ (internal quotation

marks omitted)); Kaddah v. Commissioner of Correction, 299 Conn. 129,

140, 7 A.3d 911 (2010) (cautioning that courts ‘‘should be solicitous to [selfrepresented] petitioners and construe their pleadings liberally in light of the

limited legal knowledge they possess’’).