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*********************************************** 
RICARDO PEREIRA v. COMMISSIONER

OF CORRECTION

(AC 39401)

DiPentima, C. J., and Alvord and Bear, Js.

Syllabus

The petitioner, who had been convicted of murder and kidnapping in the

first degree, sought a writ of habeas corpus, claiming that his due process

rights were violated as a result of his kidnapping conviction. The petitioner claimed that, in light of the reinterpretation of this state’s kidnapping statutes in State v. Salamon (287 Conn. 509), which was decided

after his conviction, his kidnapping conviction should be vacated. Pursuant to Salamon, to commit kidnapping in conjunction with another

crime, a defendant must intend to prevent the victim’s liberation for a

longer period of time or to a greater degree than that which is necessary

to commit the other crime. The petitioner’s conviction stemmed from

an incident in which he was in a parked car with the victim when he

became enraged, and punched and strangled her. The victim fought

back and fled from the car, after which the petitioner drove the car into

her, ran over her, dragged her along the road, and then exited the car

and kicked her numerous times, resulting in her death. The petitioner

claimed that, because the events inside the car were a separate,

uncharged assault against the victim, he was entitled to a jury instruction

pursuant to Salamon because the petitioner’s restraint of the victim

was incidental to the uncharged assault. He also claimed that there was

a single, continuous crime, starting when he first struck the victim inside

the car and ending with her death, and that, because he was charged

with kidnapping and murder, he was entitled to a Salamon instruction.

The habeas court rendered judgment denying the petition and, thereafter,

denied the petition for certification to appeal, and the petitioner appealed

to this court. Held that the habeas court did not abuse its discretion in

denying the petition for certification to appeal, and, accordingly, the

appeal was dismissed: the petitioner’s claim regarding the kidnapping

charge and the uncharged assault while the petitioner and the victim

were inside the car was not reviewable, as the petitioner failed to raise

the claim in his posttrial brief, in his habeas petition, or in his petition

for certification to appeal, and the habeas court did not address the

issue in its memorandum of decision; moreover, the petitioner could

not prevail on his claim that he was entitled to a Salamon instruction

on the ground that the restraint that occurred in the car was merely

incidental to the commission of the murder, as the petitioner’s restraint

of the victim inside the car was completed before the petitioner engaged

in the conduct that caused the victim’s death, and, thus, the restraint

inside the car, which had criminal significance independent of the events

that occurred after the victim escaped from the car, was not necessary

to complete the murder, and this court was not persuaded that this

issue was debatable among jurists of reason, that it could have been

resolved by a court in a different manner, or that it presented a question

that was adequate to deserve encouragement to proceed further.

Argued May 22—officially released September 26, 2017

Procedural History

Amended petition for a writ of habeas corpus,

brought to the Superior Court in the judicial district

of Tolland and tried to the court, Fuger, J.; judgment

denying the petition; thereafter, the court denied the

petition for certification to appeal, and the petitioner

appealed to this court. Appeal dismissed.

Michael W. Brown, assigned counsel, for the appellant (petitioner).
Sarah Hanna, assistant state’s attorney, with whom,

on the brief, were Brian Preleski, state’s attorney, and

Jo Anne Sulik, supervisory assistant state’s attorney,

for the appellee (respondent).
Opinion

DiPENTIMA, C. J. The petitioner, Ricardo Pereira,

appeals following the denial of his petition for certification to appeal from the judgment of the habeas court

denying his petition for a writ of habeas corpus. On

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

abused its discretion in denying his petition for certification to appeal from the denial of his habeas petition and

(2) improperly denied his habeas petition. We conclude

that the habeas court did not abuse its discretion in

denying certification to appeal. Accordingly, we dismiss

the petitioner’s appeal.

The following facts and procedural history are relevant to our discussion. In March, 2000, the petitioner

was convicted of murder in violation of General Statutes

§ 53a-54a (a) and kidnapping in the first degree violation

of General Statutes § 53a-92 (a) (2) (A). The court,

Espinosa, J., sentenced the petitioner to sixty years

incarceration on the murder charge and fifteen years

incarceration on the kidnapping charge, with the sentences to be served consecutively, for a total effective

sentence of seventy-five years incarceration. This court

affirmed his conviction on direct appeal. State v. Pereira, 72 Conn. App. 545, 805 A.2d 787 (2002), cert.

denied, 262 Conn. 931, 815 A.2d 135 (2003).

The petitioner filed his first habeas action on October

24, 2003. Following a trial, the first habeas court denied

the habeas petition, and this court dismissed the appeal.

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

397, 921 A.2d 665, cert. denied, 283 Conn. 906, 927 A.2d

918 (2007).1 The petitioner commenced the present

habeas action on May 2, 2013, and filed the operative

petition on January 21, 2016. The petitioner alleged,

inter alia, that his due process rights had been violated

as a result of his kidnapping conviction. Specifically,

he relied on our Supreme Court’s decision in State v.

Salamon, 287 Conn. 509, 949 A.2d 1092 (2008), which

was released nearly one decade after the petitioner’s

conviction. He argued that as a result of Salamon’s

reinterpretation of our kidnapping statutes, his conviction of kidnapping should be vacated.

At the February 2, 2016 habeas trial, the parties

agreed that certain documents, mostly transcripts,

would be entered into evidence by stipulation in lieu of

testimony. The parties further agreed to submit posttrial

briefs in lieu of oral argument.2 The court, Fuger, J.,

issued its memorandum of decision on May 12, 2016.

It denied the petition for a writ of habeas corpus, concluding that the petitioner was not entitled to a Salamon

instruction3 and that even if he was entitled to such an

instruction, its absence constituted harmless error. The

habeas court subsequently denied the petition for certification to appeal. This appeal followed. Additional

facts will be set forth as necessary.
The petitioner claims that the habeas court abused

its discretion in denying his petition for certification to

appeal. After reviewing the record and the applicable

law, we conclude that the habeas court’s denial of the

petition for certification to appeal did not constitute

an abuse of discretion. Accordingly, we dismiss the

petitioner’s appeal.

As an initial matter, we set forth our standard of

review. ‘‘Faced with a habeas court’s denial of a petition

for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas

corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden, 229

Conn. 178, 640 A.2d 601 (1994), and adopted in Simms

v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994).

First, [the petitioner] must demonstrate that the denial

of his petition for certification constituted an abuse of

discretion. . . . Second, if the petitioner can show an

abuse of discretion, he must then prove that the decision of the habeas court should be reversed on the

merits. . . . To prove that the denial of his petition for

certification to appeal constituted an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are

debatable among jurists of reason; that a court could

resolve the issues [in a different manner]; or that the

questions are adequate to deserve encouragement to

proceed further. . . .

‘‘In determining whether the habeas court abused

its discretion in denying the petitioner’s request for

certification, we necessarily must consider the merits of

the petitioner’s underlying claims to determine whether

the habeas court reasonably determined that the petitioner’s appeal was frivolous. In other words, we review

the petitioner’s substantive claims for the purpose of

ascertaining whether those claims satisfy one or more

of the three criteria . . . adopted by [our Supreme

Court] for determining the propriety of the habeas

court’s denial of the petition for certification.’’ (Citations omitted; internal quotation marks omitted.) Sanders v. Commissioner of Correction, 169 Conn. App. 813,

821–22, 153 A.3d 8 (2016), cert. denied, 325 Conn. 904,

156 A.3d 536 (2017); see also Bridges v. Commissioner

of Correction, 169 Conn. App. 742, 747, 152 A.3d 71

(2016), cert. denied, 324 Conn. 917, 154 A.3d 1008

(2017).

The claim presented by the petitioner, aptly described

by the habeas court as ‘‘relatively narrow and focused,’’

is that the absence of the Salamon instruction constituted a violation of his right to due process. In reviewing

this issue, we are mindful that the facts found by the

habeas court are subject to the clearly erroneous standard of review. Farmer v. Commissioner of Correction,

165 Conn. App. 455, 458, 139 A.3d 767, cert. denied, 323

Conn. 905, 150 A.3d 685 (2016). ‘‘The applicability of
Salamon and whether the court’s failure to give a Salamon instruction was harmless error are issues of law

over which our review is plenary.’’ Id., 459.

Next, we briefly summarize the evolution of our kidnapping law. At the time of the petitioner’s conviction,

our Supreme Court had established that ‘‘all that is

required under the [kidnapping] statute is that the

defendant have abducted the victim and restrained her

with the requisite intent. . . . Under the aforementioned definitions, the abduction requirement is satisfied when the defendant restrains the victim with the

intent to prevent her liberation through the use of physical force. . . . Nowhere in this language is there a

requirement of movement on the part of the victim.

Rather, we read the language of the statute as allowing

the restriction of movement alone to serve as the basis

for kidnapping. . . . [O]ur legislature has not seen fit

to merge the offense of kidnapping with other felonies,

nor impose any time requirements for restraint, nor

distance requirements for asportation, to the crime of

kidnapping. . . . Furthermore, any argument that

attempts to reject the propriety of a kidnapping charge

on the basis of the fact that the underlying conduct was

integral or incidental to the crime of sexual assault also

must fail.’’ (Citation omitted; internal quotation marks

omitted.) Luurtsema v. Commissioner of Correction,

299 Conn. 740, 745–46, 12 A.3d 817 (2011).

Subsequent to the petitioner’s conviction of murder

and kidnapping, ‘‘our Supreme Court reinterpreted the

intent element of our kidnapping statutes. In State v.

Salamon, supra, 287 Conn. 542, it stated: Our legislature, in replacing a single, broadly worded kidnapping

provision with a gradated scheme that distinguishes

kidnappings from unlawful restraints by the presence

of an intent to prevent a victim’s liberation, intended

to exclude from the scope of the more serious crime

of kidnapping and its accompanying severe penalties

those confinements or movements of a victim that are

merely incidental to and necessary for the commission

of another crime against that victim. Stated otherwise,

to commit a kidnapping in conjunction with another

crime, a defendant must intend to prevent the victim’s

liberation for a longer period of time or to a greater

degree than that which is necessary to commit the

other crime.

‘‘Our Supreme Court further noted that [w]hen that

confinement or movement is merely incidental to the

commission of another crime, however, the confinement or movement must have exceeded that which was

necessary to commit the other crime. [T]he guiding

principle is whether the [confinement or movement]

was so much the part of another substantive crime that

the substantive crime could not have been committed

without such acts . . . . In other words, the test . . .

to determine whether [the] confinements or movements
involved [were] such that kidnapping may also be

charged and prosecuted when an offense separate from

kidnapping has occurred asks whether the confinement, movement, or detention was merely incidental to

the accompanying felony or whether it was significant

enough, in and of itself, to warrant independent prosecution. . . . Conversely, a defendant may be convicted

of both kidnapping and another substantive crime if,

at any time prior to, during or after the commission of

that other crime, the victim is moved or confined in a

way that has independent criminal significance, that is,

the victim was restrained to an extent exceeding that

which was necessary to accomplish or complete the

other crime.’’ (Internal quotation marks omitted.)

Robles v. Commissioner of Correction, 169 Conn. App.

751, 754–55, 153 A.3d 29 (2016), cert. denied, 325 Conn.

901, 157 A.3d 1146 (2017). Finally, we note that in Luurtsema v. Commissioner of Correction, supra, 299 Conn.

773, our Supreme Court adopted a general presumption

of retroactivity for Salamon in collateral proceedings.

See also Nogueira v. Commissioner of Correction, 168

Conn. App. 803, 808, 149 A.3d 983, cert. denied, 323

Conn. 949, A.3d (2016).

Next, we turn to the facts underlying the petitioner’s

conviction. ‘‘At the time of the incident giving rise to

his convictions, the [petitioner] was distraught because

his former girlfriend had terminated their relationship.

The [petitioner] still wanted to be with [her, but] she

didn’t want anything to do with [him]. In the wake of

this loss, the [petitioner] spent a great deal of his free

time at William MacLellan’s small basement apartment

in Waterbury. Through MacLellan, the [petitioner] met

the victim, Lisa Orgnon, in October, 1997. Over the

course of approximately one month, the [petitioner]

and the victim socialized at drinking establishments

in the Waterbury area a couple of times. The victim,

MacLellan and the [petitioner] planned to spend the

evening of November 18, 1997, together.’’ (Internal quotation marks omitted.) State v. Pereira, supra, 72 Conn.

App. 547.

Beginning at approximately 9 p.m., the victim, the

petitioner and MacLellan went to two drinking establishments and consumed alcohol. Id., 547–48. After

returning to MacLellan’s apartment, the petitioner

asked the victim to accompany him to a movie theater

near his former girlfriend’s home in Southington, while

MacLellan elected to remain at his apartment. Id., 548.

The petitioner, who knew that the theater would be

closed, feigned surprise at this fact and asked the victim

to ‘‘ ‘drive around,’ ’’ but withheld information regarding

their destination. Id. They ultimately drove to the neighborhood where his former girlfriend lived and parked

on an adjacent street. Id. The petitioner ‘‘did not inform

the victim that his former girlfriend lived in the area.’’ Id.

‘‘Although the reasons are unclear, the [petitioner]
suddenly got real mad at some point after the vehicle

halted. In the [petitioner’s] own words: You know, I

just—I just lost control. And I just began, I began to

swing at her. I don’t know why but I started punching

[the victim] in her face and head even though she had

done nothing wrong. I punched her four or five times.

She just tried to get away. The [petitioner] punched

the victim with such force that days later, he had abrasions on his knuckles . . . . As the victim attempted

to get away from the [petitioner’s] unprovoked assault,

the [petitioner] grabbed her by the neck and began to

strangle her. The [petitioner] choked the victim, crushing her voice box and hemorrhaging the strap muscles

in her neck. The [petitioner] strangled the victim with

such force that the whites of her eyes turned blood red

from petechial hemorrhaging of the capillaries in her

conjunctiva. The victim buried her fingernails into the

[petitioner]. Forensic analysis later revealed that nine

of her ten fingernails had drawn blood in the melee.

The [petitioner] sustained scratches on his face and

neck, and all over his back and shoulders. Stymied by

the victim’s effective counterattack, the [petitioner] lost

his grip on the victim’s neck. She opened the door

and began to spill out, head first, onto the street. The

[petitioner] clutched and swiped at her in a futile effort

to regain dominance, but the victim kicked at him,

checking his renewed assault. The victim broke free

and sprinted down the road, away from [petitioner]. The

[petitioner] jumped into the driver’s seat and gunned

the engine, aiming the vehicle at the victim.

‘‘The [petitioner] slammed the car into the victim.

The front bumper shattered her right leg at a point

nine inches from her heel. Expert forensic evidence

introduced at trial indicated that this was a fairly typical

pedestrian type [of] injury, where the bumper would

strike the lower leg . . . . The vehicle’s right front

wheel ran over the victim and her body smashed into

the undercarriage. The [petitioner] continued to run

over the victim and felt the rear transaxle vault over

her body. The [petitioner] later stated that he wasn’t

sure whether he put the car in reverse to run her over

again. The street was littered with blood in a long trail

resulting from how he, in his own words, dragged her

up the road. [As a result, the victim sustained numerous

and significant injuries.] . . .

‘‘The [petitioner] then stopped the car, stepped out

and approached the victim’s body. In his own words,

the [petitioner] kicked the victim in the head and neck

five or six more times until she wasn’t moving at all

[anymore]. Finally satisfied that he had killed the victim,

the [petitioner] dragged her body out of sight, hiding it

in some icy brush over a ridge at the side of the road.

The [petitioner] drove the victim’s car back to his home

town of Waterbury and dumped it in a church parking

lot. He walked the rest of the way home.
‘‘The victim . . . died in the early morning of November 19, 1997. The medical examiner certified the cause

of death to be multiple blunt force trauma of the head

and chest. The medical examiner found no sign of any

natural cause that would otherwise account for her

death.

‘‘It was life as usual for the [petitioner] that day. He

awoke at the ordinary time and arrived at the site of

his job with his father’s construction company. However, after the victim’s mother reported the victim missing, the Naugatuck police interrupted the [petitioner’s]

schedule, asking him for information. The [petitioner]

initially denied ever being with the victim in Southington, telling the police that the victim drove [him]

directly home after dropping MacLellan at his house.

After the body was found, however, the [petitioner]

admitted that he had, in fact, killed her.’’ (Emphasis

added; footnotes omitted; internal quotation marks

omitted.) State v. Pereira, supra, 72 Conn. App. 549–51.

The petitioner’s appellate brief presents two specific

and distinct theories that, in his view, warranted a Salamon instruction. First, the petitioner claims that ‘‘the

events inside of the car were a separate, uncharged

assault against the victim’’ and that he was entitled

to a Salamon instruction because the restraint was

incidental to that uncharged assault.4 Second, the petitioner contends that there was a single, continuous

crime, starting when he first struck the victim inside

the car and ending with her death, and because he was

charged with kidnapping and murder, he was entitled

to a Salamon instruction. With respect to the former

claim, the respondent, the Commissioner of Correction,

counters that this theory was not raised before and

never decided by the habeas court. As to the latter

contention, the respondent maintains that the habeas

court properly concluded that because the restraint and

confinement of the victim occurred separately from and

were completed prior to the murder, the kidnapping

was not incidental to and necessary for the murder,

and, therefore, a Salamon instruction was not required.

We agree with the respondent with respect to both

theories.

A

We first address the petitioner’s claim regarding the

uncharged assault that occurred inside the car. The

operative petition for a writ of habeas corpus contained

two broad allegations: first, that his due process rights

were violated as a result of the kidnapping conviction,

and, second, at the time of the conviction, ‘‘the kidnapping statute was invalid and unconstitutional.’’5 The

petitioner failed to include a specific allegation regarding the kidnapping charge and an uncharged assault

while the petitioner and victim were inside the car.

Similarly, in his posttrial brief, the petitioner again failed
to present this specific claim; instead, he focused on

continuing criminal conduct involving the crimes of

murder and kidnapping. Finally, the habeas court’s

memorandum of decision did not address the issue of

the kidnapping charge and the uncharged assault.

The petitioner failed to raise before the habeas court

a Salamon claim as to the uncharged assault that

occurred in the car. ‘‘A reviewing court will not consider

claims not raised in the habeas petition or decided by

the habeas court. . . . Appellate review of claims not

raised before the habeas court would amount to ambuscade of the [habeas] judge.’’ (Citations omitted; internal

quotation marks omitted.) Henderson v. Commissioner

of Correction, 129 Conn. App. 188, 198, 19 A.3d 705,

cert. denied, 303 Conn. 901, 31 A.3d 1177 (2011); see

also Giattino v. Commissioner of Correction, 169

Conn. App. 566, 580, 152 A.3d 558 (2016); Taylor v.

Commissioner of Correction, 154 Conn. App. 686, 701,

108 A.3d 238 (2015) (specific claim of ineffective assistance of counsel not reviewed on appeal), aff’d, 324

Conn. 631, 153 A.3d 1264 (2017); Trotter v. Commissioner of Correction, 139 Conn. App. 653, 657 n.2, 56

A.3d 975 (2012) (same), cert. denied, 308 Conn. 901, 60

A.3d 286 (2013).

Additionally, the petition for certification to appeal

from the denial of his habeas petition did not include

a Salamon claim on the basis of the uncharged assault.6

We have stated that ‘‘[b]ecause it is impossible to review

an exercise of discretion that did not occur, we are

confined to reviewing only those issues which were

brought to the habeas court’s attention in the petition

for certification to appeal.’’ (Internal quotation marks

omitted.) Blake v. Commissioner of Correction, 150

Conn. App. 692, 697, 91 A.3d 535, cert. denied, 312

Conn. 923, 94 A.3d 1202 (2014); see also Stenner v.

Commissioner of Correction, 144 Conn. App. 371, 374–

75, 71 A.3d 693, cert. denied, 310 Conn. 918, 76 A.3d

633 (2013); Campbell v. Commissioner of Correction,

132 Conn. App. 263, 267, 31 A.3d 1182 (2011); Mercado

v. Commissioner of Correction, 85 Conn. App. 869, 872,

860 A.2d 270 (2004), cert. denied, 273 Conn. 908, 870

A.3d 1079 (2005). For these reasons, we decline to consider this claim.7

B

We now turn to the petitioner’s claim that there was

a single, continuous crime, starting when he struck the

victim inside the car, and ending with her death outside

of the car. The petitioner contends that, contrary to the

conclusion reached by the habeas court, he was entitled

to a Salamon instruction because the evidence reasonably supported a finding that the restraint that occurred

in the car was merely incidental to the commission of

the murder. We disagree.

Following the Salamon reinterpretation, ‘‘to commit
a kidnapping in conjunction with another crime, a

defendant must intend to prevent the victim’s liberation

for a longer period of time or to a greater degree than

that which is necessary to commit the other crime.

. . . [T]here are instances where a defendant may be

convicted of both kidnapping and another substantive

crime if, at any time prior to, during or after the commission of that other crime, the victim is moved or confined

in a way that has independent criminal significance,

that is, the victim was restrained to an extent exceeding

that which was necessary to accomplish or complete

the other crime. Whether the movement or confinement

of the victim is merely incidental to and necessary for

another crime will depend on the particular facts and

circumstances of each case.’’ (Citation omitted; internal

quotation marks omitted.) Eric M. v. Commissioner of

Correction, 153 Conn. App. 837, 843–44, 108 A.3d 1128

(2014), cert. denied, 315 Conn. 915, 106 A.3d 308 (2015).

A brief recitation of the facts and circumstances of

this case is necessary to explain why there was not a

single, continuous crime in this case and therefore a

Salamon instruction was not required in conjunction

with the murder charge. At the criminal trial, the state

produced evidence that the petitioner had been sitting

with the victim in a car parked near his former girlfriend’s house. He suddenly began to strike her in the

face. During this altercation, the victim attempted to

escape from inside the car, and partially fell out of the

car. At one point, the petitioner had either his hands

or arm around her neck. The petitioner admitted to a

police officer that he performed this action for two

reasons: first, he wanted to prevent the victim from

getting away from him, and, second, to choke her.

Despite the petitioner’s assault, the victim was able to

free herself from the petitioner’s restraint, to escape

from the interior of the car and to sprint down the road.

The petitioner then moved to the driver’s seat, and he

drove the car into and over the victim, dragging her up

the road. He exited the car, kicked the victim numerous

times in the face and body, dragged her across the street

and left her behind the brush.

As a general matter, when the state charges a defendant with kidnapping and another criminal offense, a

Salamon instruction ordinarily must be given. White v.

Commissioner of Correction, 170 Conn. App. 415, 425,

154 A.3d 1054 (2017); see also State v. Fields, 302 Conn.

236, 247, 24 A.3d 1243 (2011). If, however, the restraint

that forms the basis for the kidnapping has criminal

significance separate from the underlying offense, then

the instruction is not required. State v. Fields, supra,

248. Put another way, ‘‘our Supreme Court limited Salamon to cases in which the state cannot establish that

the restraint involved had independent criminal significance as the predicate conduct for a kidnapping.’’ State

v. Golder, 127 Conn. App. 181, 190, 14 A.3d 399, cert.

denied, 301 Conn. 912, 19 A.3d 180 (2011).
The present case differs from the majority of other

cases involving Salamon claims;8

that is, the criminal

conduct inside the car had been completed prior to the

commission of the murder.9 The petitioner committed

a kidnapping when both he and the victim were inside

the car; namely, after he began to strike her, he grabbed

her by the neck and he strangled her. He admitted to

the police that this was done with a dual purpose—to

choke the victim and to keep her from getting away.

Despite his efforts, the victim was able to break free

from the petitioner’s restraint and get out of the car.

Our Supreme Court has stated that a kidnapping, a

crime involving the interference with a victim’s liberty,

ends when that liberty has been restored. State v.

Gomez, 225 Conn. 347, 351, 622 A.2d 1014 (1993). The

victim freed herself from the petitioner’s restraint by

getting out of the car, and thus the criminal conduct

inside the car had been completed. At that point, the

petitioner moved to the driver’s seat, and he drove the

car into the victim, eventually causing her death.

Because the criminal conduct that occurred inside

the car had been completed before the murder, that

conduct had criminal significance independent from

the events that occurred after she escaped. See State

v. Ayala, 133 Conn. App. 514, 523, 36 A.3d 274, cert.

denied, 304 Conn. 913, 40 A.3d 318 (2012). In other

words, because that criminal conduct was completed

before the petitioner’s actions that caused the death of

the victim, the restraint was not necessary to complete

the murder. See State v. Golder, supra, 127 Conn. App.

190. This restraint had its own independent significance

separate from the subsequent murder. See id., 191.

Therefore, the rule of Salamon does not apply. See

id., 190.

In sum, we conclude that the two crimes of which

the petitioner was convicted were sufficiently disconnected; see Wilcox v. Commissioner of Correction, 162

Conn. App. 730, 747, 129 A.3d 796 (2016); therefore, a

Salamon instruction was not required. Further, we are

not persuaded that this issue was debatable among

jurists of reason, could be resolved in a different manner, or presented a question that was adequate to

deserve encouragement to proceed further. Accordingly, we conclude that the habeas court did not abuse

its discretion in denying certification to appeal.

The appeal is dismissed.

In this opinion the other judges concurred.

1 The petitioner had claimed that he received the ineffective assistance

of trial counsel and that he had been denied access to counsel. Pereira v.

Commissioner of Correction, supra, 101 Conn. App. 398. The habeas court

rejected both of these claims, and denied certification to appeal. Id. On

appeal, this court concluded that the petitioner failed to establish that the

habeas court abused its discretion in denying certification to appeal. Id.,

400–401.

2

In his posttrial brief, the petitioner argued that ‘‘it was an ongoing struggle, from the moment that the petitioner initially hit the victim, it was a
continuous act upon the victim. . . . Because the petitioner’s entire conduct

was one continuous activity in the commission of the act of murder . . .

any restraint against the victim was entirely incidental to the murder of the

victim. There is simply not one point where it can be said that a jury could

clearly determine that the petitioner was guilty of kidnapping because his

intended restraint of the victim was for a longer period of time or a greater

extent to commit the murder for which he was convicted.’’

In turn, the respondent, the Commissioner of Correction, argued in his

posttrial brief that the intent required by Salamon existed because ‘‘the

petitioner’s restraint concluded before he committed the murder.’’ He also

claimed that her escape served as a ‘‘break in the chain’’ between the

kidnapping and the murder. Additionally, the respondent noted that petitioner intended to prevent the victim from summoning help by restraining

her inside the car.

3 The habeas court first concluded that the holding of Salamon was retroactively applicable to the petitioner’s claim. See, e.g., Hinds v. Commissioner of Correction, 321 Conn. 56, 60, 136 A.3d 596 (2016); Luurtsema v.

Commissioner of Correction, 299 Conn. 740, 773, 12 A.3d 817 (2011). It then

concluded that the kidnapping in the present case did not fall within the

ambit of the rule established in Salamon because the movement or restraint

of the victim inside the car had independent significance from the murder

that occurred outside of the car and after the victim had escaped. The

habeas court also noted that the strangulation of the victim prevented her

from escaping the attack inside the car. ‘‘In other words, the petitioner’s

restriction of the victim had clearly defined and distinct significance from

the subsequent murder. There is, contrary to the petitioner’s argument, a

point where a reasonable fact finder could clearly determine that the

restraint of the victim was not incidental to the murder itself.’’ In the words of

the habeas court, the petitioner’s claim of one continuous series of criminal

activity constituted nothing more than ‘‘a proverbial red herring.’’

4 The fact that the petitioner was not charged with assault or attempted

murder as a result of his conduct in the interior of the car is not dispositive.

In State v. Salamon, supra, 287 Conn. 550–51 n.35, our Supreme Court stated:

‘‘As we noted previously, the defendant ultimately was not tried for assault.

We nevertheless conclude that a defendant is entitled to an instruction that

he cannot be convicted of kidnapping if the restraint imposed on the victim

was merely incidental to the assault, regardless of whether the state elects

to try the defendant for assault, because the facts reasonably would support

an assault conviction. . . . To conclude otherwise would give the state

carte blanche to deprive the defendant of the benefit of such an instruction

merely by declining to charge him with the underlying crime, which, as in

the present case, generally will carry a far less serious maximum possible

penalty than the kidnapping charge.’’ (Citations omitted.) See also Franko

v. Commissioner of Correction, 165 Conn. App. 505, 521–22, 139 A.3d

798 (2016).

5 The habeas court correctly noted that State v. Salamon, supra, 287 Conn.

509, ‘‘and its progeny have never held that the kidnapping statute was invalid

and unconstitutional, so that claim has no legal support whatsoever.’’

6

In the grounds for certification to appeal, the petitioner set forth the

following: ‘‘Whether or not the habeas court erred in finding that the petitioner was not entitled to a Salamon jury instruction regarding his kidnapping conviction, as to whether or not the facts of his case were incidental

to the main charge to warrant a Salamon jury instruction . . . .’’

7 This reasoning also applies to the petitioner’s claims regarding an

uncharged attempt to commit murder.

8 But see State v. Kitchens, 299 Conn. 447, 453, 10 A.3d 942 (2011) (state

argued on appeal that kidnapping was complete before conduct that led to

assault and attempted assault charges; Supreme Court decided case on

harmless error grounds).

9 As succinctly and accurately stated by the habeas court: ‘‘The murder

took place outside the car. The restraint took place inside the car.’’