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 IVAN DIAZ v. COMMISSIONER OF CORRECTION
                 (AC 36003)
               Gruendel, Mullins and Dupont, Js.
         Argued March 3—officially released June 9, 2015

   (Appeal from Superior Court, judicial district of
               Tolland, Sferrazza, J.)
 John J. Duguay, with whom, on the brief, was
Michael D. Day, for the appellant (petitioner).
  Michael Proto, assistant state’s attorney, with whom,
on the brief, was John C. Smriga, state’s attorney, for
the appellee (respondent).
                          Opinion

  MULLINS, J. The petitioner, Ivan Diaz, appeals from
the judgment of the habeas court dismissing, sua
sponte, his petition for a writ of habeas corpus on the
basis of deliberate bypass.1 The petitioner claims that
the court improperly dismissed his petition sua sponte.
We agree. Accordingly, we reverse the judgment of the
habeas court and remand the matter for further pro-
ceedings.
   The facts underlying the petitioner’s conviction can
be found in our Supreme Court’s decision, affirming
the judgment of conviction, in his direct appeal; see
State v. Diaz, 237 Conn. 518, 679 A.2d 902 (1996); and
need not be repeated for purposes of this appeal. In
February, 1997, the petitioner filed his first petition for
a writ of habeas corpus, alleging that his trial attorney
and his appellate attorney rendered ineffective assis-
tance. That petition was not successful. See Diaz v.
Commissioner of Correction, 92 Conn. App. 533, 886
A.2d 460 (2005), cert. denied, 277 Conn. 905, 894 A.2d
986 (2006). In February, 2004, the petitioner filed his
second petition for a writ of habeas corpus, alleging
that his attorney in his first habeas proceeding was
ineffective. That petition also was unsuccessful. In May,
2007, the petitioner filed his third petition for a writ of
habeas corpus. Attorney Cheryl Juniewic was assigned
to represent the petitioner in this third petition, in which
the petitioner alleged, among other things, that his attor-
ney in his second habeas proceeding, Genevieve Salva-
tore, was ineffective. The third petition was assigned for
trial on July 8, 2010, but, on July 2, 2010, the petitioner
withdrew the third petition. The withdrawal form was
signed by both Attorney Juniewic and the petitioner.
  On February 4, 2011, the petitioner filed his fourth
petition for a writ of habeas corpus, alleging claims
of ineffective assistance of counsel as to each of the
petitioner’s previous attorneys, in addition to due pro-
cess claims. Following the appointment of counsel, the
petitioner filed an amended petition on March 13, 2013.
The respondent, the Commissioner of Correction, filed
his return on March 20, 2003, admitting in part and
denying in part the allegations set forth in the
amended petition.
   The matter proceeded to a May 30, 2013 habeas trial,
at the start of which the petitioner withdrew his claims
regarding Attorney Juniewic. On August 14, 2013, the
habeas court dismissed, sua sponte, the entire petition
on the ground that the court was deprived of subject
matter jurisdiction because the petition consisted of
claims that were deliberately bypassed.2 Specifically,
the court determined that, once the petitioner had with-
drawn his claims against Attorney Juniewic, there
remained only claims that he previously had raised in
this third habeas petition, and that the withdrawal of
that third petition barred the petitioner from raising the
same claims in a future habeas petition on the ground
of deliberate bypass. This appeal followed.
   On appeal, the petitioner claims that the court
improperly dismissed his petition sua sponte. He claims
that the court improperly raised and acted sua sponte
on an affirmative defense not pleaded by the respon-
dent. The petitioner also claims that the court improp-
erly determined that the deliberate bypass doctrine
applied in this case and that it was a bar to the petition-
er’s claims. We conclude that the court improperly
acted sua sponte in this case on an issue that did not
involve the court’s subject matter jurisdiction.
   ‘‘The conclusions reached by the trial court in its
decision to dismiss [a] habeas petition are matters of
law, subject to plenary review. . . . [When] the legal
conclusions of the court are challenged, [the reviewing
court] must determine whether they are legally and
logically correct . . . and whether they find support
in the facts that appear in the record. . . . To the extent
that factual findings are challenged, this court cannot
disturb the underlying facts found by the habeas court
unless they are clearly erroneous . . . .’’ (Internal quo-
tation marks omitted.) Fine v. Commissioner of Correc-
tion, 147 Conn. App. 136, 140, 81 A.3d 1209 (2013).
   First, we consider it important to address the court’s
conclusion that the deliberate bypass doctrine impli-
cates the court’s subject matter jurisdiction, which
would then give the court the authority to raise the
doctrine sua sponte.3 See Lopez v. Board of Education,
310 Conn. 576, 589–90, 81 A.3d 184 (2013) (‘‘issues of
subject matter jurisdiction may be raised at any time,
including by the court sua sponte, regardless of the
manner in which the issue is treated by the parties’’).
In its memorandum of decision, the court relied, inter
alia, on Galland v. Bronson, 204 Conn. 330, 333, 527
A.2d 1192 (1987) (‘‘issue of deliberate bypass is jurisdic-
tional in nature’’), for its determination that the doctrine
of deliberate bypass was jurisdictional. In a later case,
however, our Supreme Court explained: ‘‘While we have
often characterized the question of deliberate bypass
as ‘jurisdictional’ . . . and thus arguably not waivable
[by the state] . . . the rule is rather a prudential limita-
tion on the right to raise constitutional claims in collat-
eral proceedings.’’ (Citations omitted.) Payne v.
Robinson, 207 Conn. 565, 569 n.1, 541 A.2d 504, cert.
denied, 488 U.S. 898, 109 S. Ct. 242, 102 L. Ed. 2d 230
(1988).
   Following its decision in Payne, the court further
clarified that deliberate bypass was not jurisdictional
when it stated: ‘‘The cause and prejudice requirement,
like the deliberate-bypass standard that preceded it
. . . is not jurisdictional in nature. . . . Consequently,
a habeas petitioner’s failure to establish cause and prej-
udice does not deprive either the habeas court or a
reviewing court of subject matter jurisdiction over the
habeas action.’’ (Citations omitted; internal quotation
marks omitted.) Taylor v. Commissioner of Correction,
284 Conn. 433, 447 n.18, 936 A.2d 611 (2007). Accord-
ingly, the habeas court improperly determined that the
deliberate bypass doctrine implicated its subject matter
jurisdiction in this case.
  We next address whether the court improperly raised
the deliberate bypass doctrine sua sponte. We agree
with the petitioner that this issue is controlled by Bar-
low v. Commissioner of Correction, 150 Conn. App.
781, 786–87, 93 A.3d 165 (2014).4
   In Barlow, we explained: ‘‘Practice Book § 23-30 (b)
provides, in relevant part, that the respondent’s return
shall allege any facts in support of any claim of proce-
dural default, abuse of the writ, or any other claim that
the petitioner is not entitled to relief. . . . [T]he doc-
trine of deliberate bypass historically has arisen in the
context of habeas petitions involving claims procedur-
ally defaulted at trial and on appeal. . . . If the respon-
dent claims that the petitioner should have raised the
issue [previously] . . . the claim [of procedural
default] must be raised in the return or it will not be
considered at the [habeas] hearing. . . . [T]he plain
language of Practice Book § 23-30 (b) requires the
[respondent] to plead procedural default in [the] return
or [the respondent] will relinquish the right to assert
the defense thereafter. . . . [I]n Connecticut, although
the petitioner has the burden of proving cause and
prejudice . . . that burden does not arise until after
the respondent raises the claim of procedural default
in [the] return. . . . [When] the respondent [does] not
plead procedural default as an affirmative defense . . .
the court [may] not find that the petitioner was proce-
durally defaulted . . . .’’ (Citations omitted; emphasis
omitted; internal quotation marks omitted.) Id.; see Day
v. Commissioner of Correction, 151 Conn. App. 754,
758–60, 96 A.3d 600, cert. denied, 314 Conn. 936, 102
A.3d 1113 (2014).
   Here, the respondent did not assert in his return the
affirmative defense of procedural default or otherwise
indicate that he wished to assert a defense of deliberate
bypass. Although the respondent argues that such a
claim was not viable when the return was filed in this
case, and that it did not become viable until the peti-
tioner withdrew his claim that Attorney Juniewic had
been ineffective, the record does not demonstrate that
the respondent made any attempt after the withdrawal
to raise this defense by seeking to amend his return or
otherwise. See generally Jackson v. Commissioner of
Correction, 149 Conn. App. 681, 685, 89 A.3d 426
(respondent filed amended return), cert. granted on
other grounds, 313 Conn. 901, 96 A.3d 558 (2014); Anker-
man v. Commissioner of Correction, 122 Conn. App.
246, 248, 999 A.2d 789 (respondent filed amended
return), cert. denied, 298 Conn. 922, 4 A.3d 1225 (2010).
Accordingly, we conclude that the defense was waived
by the respondent and that the court, therefore, improp-
erly raised it sua sponte.5
  The judgment is reversed and the case is remanded
for further proceedings.
      In this opinion the other judges concurred.
  1
     The habeas court granted the petition for certification to appeal.
  2
     Although the court in its memorandum of decision clearly stated that
the petition for a writ of habeas corpus was dismissed, the judgment file
prepared by the assistant clerk stated that it was denied.
   3
     For purposes of our analysis, we need not determine whether deliberate
bypass could be applicable to any individual claims in the petitioner’s habeas
petition or in habeas proceedings alleging ineffective assistance of counsel.
   4
     We note that our decision in Barlow v. Commissioner of Correction,
supra, 150 Conn. App. 781, was released well after the habeas court rendered
its decision in this case.
   5
     Although we conclude that the respondent waived this defense, we,
nonetheless, also note, in accordance with Fine v. Commissioner of Correc-
tion, supra, 147 Conn. App. 145–48, that a petitioner does not automatically
‘‘deliberately bypass’’ or waive his right to refile a petition simply because
he withdraws a prior petition, unless there is a showing that the petitioner
knew that the withdrawal of that prior petition was with prejudice or under
some sanction. See, e.g., id.; Mozell v. Commissioner of Correction, 147
Conn. App. 748, 757–60, 83 A.3d 1174 (court properly held that petitioner
knowingly withdrew, with prejudice, count from prior habeas petition when
record supported such finding), cert. denied, 311 Conn. 928, 86 A.3d. 1057
(2014); Richardson v. Commissioner of Correction, 123 Conn. App. 301, 305
n.4, 1 A.3d 1142 (‘‘petitioner withdrew his initial petition without prejudice so
that he could combine and address in one petition’’ several convictions),
cert. denied, 299 Conn. 910, 10 A.3d. 528 (2010).
