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   HINDS v. COMMISSIONER OF CORRECTION—FIRST DISSENT

   ZARELLA, J., with whom EVELEIGH and ROB-
INSON, Js., join, dissenting. The majority concludes
that the procedural default rule does not apply to chal-
lenges to kidnapping instructions in criminal actions
that proceeded to final judgment before we changed
our interpretation of the kidnapping statutes in State
v. Salamon, 287 Conn. 509, 949 A.2d 1092 (2008), but,
rather, should be replaced by a standard that provides
retroactive relief in the form of a new trial for all collat-
eral attacks on such judgments if the reviewing court
determines that the omission of a Salamon instruction
was not harmless beyond a reasonable doubt. I respect-
fully disagree. Neither party has questioned on appeal
to this court whether the procedural default rule should
be replaced by a different standard. Accordingly, the
issue has not been properly raised or briefed. In addi-
tion, the majority relies on reasoning in Luurtsema v.
Commissioner of Correction, 299 Conn. 740, 12 A.3d
817 (2011), that was supported by only a plurality of
this court and did not consider procedural default as
a potential bar to habeas claims based on the omission
of a Salamon instruction. As a consequence, Luurtsema
does not compel the conclusion that the procedural
default rule should not be applied in these cases, as the
majority claims. Furthermore, the majority’s decision
to abandon the procedural default rule and adopt a
different standard injects unnecessary incongruity into
our law and undermines legitimate and settled expecta-
tions regarding the ability of petitioners to raise new
claims that have not been raised at trial or in the Appel-
late Court. Finally, insofar as I deem the procedural
default rule to be the proper legal standard for habeas
review of Salamon claims, the petitioner, Walter Hinds,
did not establish good cause for failing to seek a Sala-
mon instruction at trial or for failing to raise the issue
of its omission on direct appeal. For the reasons dis-
cussed in Justice Eveleigh’s dissenting opinion, the peti-
tioner also did not establish that he suffered actual
prejudice under the facts and circumstances of this
case. I would thus conclude that the Appellate Court
incorrectly determined that the petitioner satisfied the
two-pronged test of good cause and actual prejudice
required to overcome procedural default.
                              I
  I begin with the majority’s sua sponte decision to
abandon the procedural default rule on the basis of this
court’s reasoning in Luurtsema and to replace it with
an entirely new standard that would require a reviewing
court to determine whether the omission of a Salamon
instruction was not harmless beyond a reasonable
doubt. As previously noted, the parties have not raised
the issue of whether the rule should be replaced in
their separate appeals to this court. Both parties instead
address the merits of the Appellate Court’s conclusion
that the petitioner established the good cause and actual
prejudice required under the rule to allow habeas
review of his jury instruction claim. In fact, the respon-
dent, the Commissioner of Correction, citing Johnson
v. Commissioner of Correction, 218 Conn. 403, 409, 589
A.2d 1214 (1991) (adopting cause and prejudice as ‘‘the
appropriate standard for reviewability in a habeas cor-
pus proceeding of constitutional claims not adequately
preserved at trial because of procedural default’’), spe-
cifically emphasizes in his brief that he is not challeng-
ing the Appellate Court’s consideration of the
procedural default rule in its review of the petitioner’s
claim, but only the manner in which the court applied
the rule. The majority also acknowledges that the
respondent is contending only that ‘‘the Appellate Court
did not correctly apply the legal standard for assessing
cause and prejudice to overcome procedural default.’’
Although the petitioner purportedly makes a brief, sec-
ondary argument that procedural default is not a bar to
habeas review pursuant to the reasoning in Luurtsema,
even he never goes so far as to suggest that the proce-
dural default rule should be replaced by an entirely
different standard.1 It is thus improper for the majority
to consider the issue in the present case without the
input of the parties who appealed to this court.2 See,
e.g., Sabrowski v. Sabrowski, 282 Conn. 556, 560, 923
A.2d 686 (2007) (reviewing court limited to resolving
claims raised by parties); Ghant v. Commissioner of
Correction, 255 Conn. 1, 17, 761 A.2d 740 (2000) (‘‘[i]t
is not appropriate to engage in a level of review that
is not requested’’ [internal quotation marks omitted]).
                             II
   Notwithstanding this significant threshold problem,
even if the parties had raised and briefed the issue, I
do not agree with the majority’s reliance on the reason-
ing in Luurtsema to abandon application of the proce-
dural default rule when petitioners in habeas cases
bring Salamon claims. The majority concludes that
Luurtsema ‘‘effectively resolved the procedural default
question such that the doctrine does not apply to [the
petitioner’s] Salamon claim.’’ In the majority’s view,
Luurtsema determined, as a matter of state common
law, that policy considerations weigh in favor of retro-
active application of Salamon to collateral attacks on
judgments rendered final before Salamon was decided;
see Luurtsema v. Commissioner of Correction, supra,
299 Conn. 766–67 (plurality opinion). Accordingly,
application of the procedural default rule to protect the
finality of judgments would be inconsistent with the
reasoning in Luurtsema that ‘‘the interests of finality
must give way to the demands of liberty and a proper
respect for the intent of the legislative branch.’’ Id., 766
(plurality opinion). In further support of this conclu-
sion, the majority adds that Luurtsema failed to explic-
itly consider procedural default as a limitation on its
decision. In my view, however, the majority misunder-
stands Luurtsema and its potential effect, if any, on the
disposition of Salamon claims in habeas proceedings.
  I begin by noting that the analysis in Luurtsema on
which the majority relies was endorsed by a plurality
of three panel members, with one other member of the
panel concurring only in the judgment and two other
members concurring only in the result. As a conse-
quence, the plurality’s analysis in Luurtsema does not
govern in the present case because it does not reflect
the decision of a majority of the panel members.
   To better understand the precedential value of Luurt-
sema, I briefly review the opinions in that case. Initially,
the habeas court reserved two questions for resolution
by this court: ‘‘(1) whether [this court’s decisions in]
Salamon and [State v. Sanseverino, 287 Conn. 608, 949
A.2d 1156 (2008), overruled in part by State v. DeJesus,
288 Conn. 418, 953 A.2d 45 (2008), and modified in part
after reconsideration en banc by State v. Sanseverino,
291 Conn. 574, 969 A.2d 710 (2009)] apply retroactively
in habeas corpus proceedings; and (2) whether those
cases apply in the petitioner’s case in particular.’’ Luurt-
sema v. Commissioner of Correction, supra, 299 Conn.
743 (plurality opinion). All six members of the panel
in Luurtsema agreed that both questions should be
answered in the affirmative. Different panel members,
however, relied on different rationales in reaching
that conclusion.
   With respect to the first question, a plurality of three
justices opted not to characterize the Salamon decision
as a clarification of the kidnapping statute that should
be given full retroactive effect under a federal due pro-
cess analysis. Id., 751. The plurality instead chose to
decide the retroactivity question under state common
law, and, therefore, adopted ‘‘a general presumption
in favor of full retroactivity for judicial decisions that
narrow the scope of liability of a criminal statute. That
presumption, however, would not necessarily require
that relief be granted in cases where continued incarcer-
ation would not represent a gross miscarriage of justice,
such as where it is clear that the legislature did intend
to criminalize the conduct at issue, if perhaps not under
the precise label charged. In situations where the crimi-
nal justice system has relied on a prior interpretation
of the law so that providing retroactive relief would give
the petitioner an undeserved windfall, the traditional
rationales underlying the writ of habeas corpus [also]
may not favor full retroactivity.’’ Id., 764. The plurality
emphasized that, ‘‘in the Salamon context in particular,
any exceptions to the general presumption in favor of
full retroactivity are likely to be few and far between.’’
Id. The plurality then rejected each of the state’s five
policy arguments for adopting a per se rule against
retroactive relief or for denying relief to the petitioner,
Peter Luurtsema. Id., 765–72. With respect to the second
reserved question, the plurality determined that this
court’s interpretation of the kidnapping statutes in Sala-
mon should apply retroactively to Luurtsema because
his case did not fall within any exception to the rule
discussed therein and there appeared to be no evidence
that Luurtsema intended to restrain the victim more
than was necessary to conduct the underlying sexual
assault. Id., 773–74.
   In her concurrence, which no other justice joined,
Justice Katz concluded, unlike the plurality, that the
Salamon decision represented a clarification of the kid-
napping statute that should be given full retroactive
effect under federal due process law. See id., 775.
Although she agreed with the plurality’s explanation as
to why the court should reject the state’s general policy
arguments for adopting a per se rule against retroactiv-
ity and the state’s arguments against affording relief to
Luurtsema; id., 791; she disagreed with the plurality’s
decision to permit exceptions to the rule of retroactivity
in order to, as the plurality explained, ‘‘guard against
certain fringe cases . . . .’’ Id. She explained that the
plurality had crafted ‘‘a novel rule of retroactivity under
our common-law authority,’’ and that, ‘‘even if it were
necessary to decide [the] case under our common-law
authority, we should adopt a per se rule that decisions
narrowing the interpretation of criminal statutes apply
retroactively.’’ Id., 775. Justice Katz further criticized
the plurality’s approach as ‘‘unclear’’ and discussed vari-
ous hypothetical situations in which questions might
arise regarding the retroactivity of decisions narrowing
the interpretation of criminal statutes. Id., 793. Justice
Katz thus concurred only in the judgment. Id., 797.
   In Justice Palmer’s separate concurrence, he
expressed ‘‘agree[ment] with much of the plurality opin-
ion and concur[red] in the result . . . .’’ Id. He also
explained, however, that he did not believe the court
should decide the question of whether to adopt a per
se rule in favor of full retroactivity under our common
law, observing that the court ‘‘need not resolve the issue
to decide the . . . case because, as the plurality also
conclude[d], [Luurtsema was] entitled to full retroactiv-
ity regardless of whether we adopt[ed] such a rule.’’ Id.
  Justice McLachlan also issued a separate opinion in
which he ‘‘reluctantly’’ concurred in the result. Id., 798.
He explained that he would have ‘‘prefer[red] to follow
our long-standing principle of finality of judgments and
would deny [Luurtsema] the relief that he [sought], [but
he was] compelled to follow the precedent established
by Salamon . . . .’’ Id., 799.
   This court has recognized that, ‘‘[w]hen a fragmented
[c]ourt decides a case and no single rationale explaining
the result enjoys the assent of [a majority of the] [j]us-
tices, the holding of the [c]ourt may be viewed as the
position taken by those [m]embers who concurred in
the judgments on the narrowest grounds . . . .’’ (Inter-
nal quotation marks omitted.) State v. Ross, 272 Conn.
577, 604 n.13, 863 A.2d 654 (2005), quoting Marks v.
United States, 430 U.S. 188, 193, 97 S. Ct. 990, 51 L. Ed.
2d 260 (1977). In Luurtsema, Justice Katz was the only
concurring panel member who explicitly adopted any
part of the plurality’s reasoning. As previously dis-
cussed, she agreed with the plurality’s rationale for
rejecting the state’s general arguments for a per se rule
against retroactivity; Luurtsema v. Commissioner of
Correction, supra, 299 Conn. 791; but she did not agree
with the plurality’s ‘‘novel rule of retroactivity under
our common-law authority . . . .’’ Id., 775. She instead
argued for a per se rule in favor of full retroactivity
under a federal due process analysis. See id., 791. Jus-
tice Palmer agreed with ‘‘much of the plurality opinion’’;
id., 797; but did not distinguish those parts with which
he agreed from those with which he disagreed. See id.,
797–98. Justice McLachlan did not agree with any part
of the plurality’s reasoning but merely stated that he
felt ‘‘compelled to follow the precedent established by
Salamon . . . .’’ Id., 799. Accordingly, it does not
appear that any of the three concurring justices explic-
itly agreed with the plurality’s decision to adopt a ‘‘gen-
eral presumption in favor of full retroactivity’’ or with
its description of the scope of, or exceptions to, this
general presumption. Id., 764. I thus believe that the
majority’s assertion that the plurality’s reasoning in
Luurtsema ‘‘compels the conclusion that challenges to
kidnapping instructions in criminal proceedings ren-
dered final before Salamon are not subject to the proce-
dural default rule’’; (emphasis added); is legally
unsupportable.3 The only parts of the plurality opinion
that appear to have any precedential value are the
court’s affirmative answers to the reserved questions
of whether Salamon and Sanseverino apply retroac-
tively in habeas corpus proceedings and to Luurtsema,
in particular, because those are the narrowest grounds
on which a majority of the panel clearly agreed.
   In addition to the fact that the plurality’s reasoning
in Luurtsema has no precedential value, procedural
default was not addressed by any of the panel members,
most likely because Luurtsema’s counsel had the fore-
sight to ask the trial court for a Salamon-type instruc-
tion eight years before Salamon was decided. Id., 774
(plurality opinion). Accordingly, in Luurtsema, the
respondent did not raise a procedural default defense,
and that case provides no guidance as to the applicabil-
ity of the procedural default rule when a petitioner who
has not requested a Salamon instruction at trial or
raised the issue on direct appeal makes a Salamon
claim in a subsequent habeas proceeding.
   Moreover, I am not the first to note the lack of guid-
ance in Luurtsema as to the applicability of procedural
default to a Salamon claim. In Smith v. Warden, Supe-
rior Court, judicial district of Tolland, Docket No. TSR-
CV-08-4002747-S (September 13, 2011), a habeas case
decided only eight months following the publication
of Luurtsema, the court observed that the issue of
procedural default was ‘‘absent and therefore never
discussed by the Supreme Court’’ in Luurtsema and
that this court ‘‘never had occasion in [Luurtsema] to
consider the effect of procedural default with respect
to the retroactive application of Salamon.’’ The court
in Smith thus considered the respondent’s affirmative
defense of procedural default in that case and deter-
mined that the petitioner, Lawrence R. Smith, had estab-
lished the good cause and actual prejudice required to
overcome the default. Id. Thereafter, the respondent
routinely raised the affirmative defense of procedural
default when habeas petitioners sought a new trial
because of the trial court’s omission of a Salamon
instruction, and petitioners never challenged the propri-
ety of the defense, opting instead to argue that their
claims had not been barred by the procedural default
rule. See Hinds v. Warden, Superior Court, judicial
district of Tolland, Docket No. TSR-CV-09-4003234-S
(August 21, 2012), aff’d sub nom. Hinds v. Commis-
sioner of Correction, 151 Conn. App. 837, 97 A.3d 986,
cert. granted, 314 Conn. 928, 928–29, 101 A.3d 273
(2014); Epps v. Warden, Superior Court, judicial district
of Tolland, Docket No. TSR-CV-06-4001167-S (Novem-
ber 7, 2012), aff’d sub nom. Epps v. Commissioner of
Correction, 153 Conn. App. 729, 104 A.3d 760 (2014);
Barile v. Warden, Superior Court, judicial district of
Tolland, Docket No. TSR-CV-10-4003798-S (August 13,
2013); Farmer v. Warden, Superior Court, judicial dis-
trict of Tolland, Docket No. TSR-CV-12-4004510-S (May
8, 2014); Wilcox v. Warden, Superior Court, judicial
district of Tolland, Docket No. TSR-CV-11-4004205-S
(September 17, 2014), rev’d sub nom. Wilcox v. Com-
missioner of Correction, 162 Conn. App. 730, 129 A.3d
796 (2016); Davis v. Warden, Superior Court, judicial
district of Tolland, Docket No. TSR-CV-11-4004289-S
(October 6, 2014); Robles v. Warden, Superior Court,
judicial district of Tolland, Docket No. TSR-CV-12-
4004528-S (December 16, 2014); Nogueira v. Warden,
Superior Court, judicial district of Tolland, Docket No.
TSR-CV-14-4006033-S (June 10, 2015). Indeed, in one
recent case in which the habeas court noted that the
respondent had not raised procedural default as an
affirmative defense, the court suggested that such a
defense would have been appropriate. See Betancourt
v. Warden, Superior Court, judicial district of Tolland,
Docket No. TSR-CV-12-4004762-S (January 12, 2016)
(‘‘[The] court is of the opinion that this claim is suscepti-
ble to the special defense of procedural default if raised
by the respondent. However, this was not the case.’’).
Similarly, when three of the foregoing habeas cases,
including the present case, were appealed to the Appel-
late Court, that court considered the habeas court’s
ruling with respect to the respondent’s procedural
default defense in each case without hesitation. See
Wilcox v. Commissioner of Correction, supra, 739, 746,
749–50 (reversing judgment of habeas court, which had
concluded that petitioner’s claim was not procedurally
defaulted, on ground that petitioner had failed to meet
heavy burden of demonstrating actual prejudice due to
absence of Salamon instruction); Epps v. Commis-
sioner of Correction, supra, 736, 738, 742 (affirming
judgment of habeas court, which had concluded that
petitioner’s claim was not procedurally defaulted, on
ground that petitioner had established good cause and
actual prejudice due to absence of Salamon instruc-
tion); Hinds v. Commissioner of Correction, supra,
855–60 (affirming judgment of habeas court granting
habeas petition in part and concluding that petitioner
had demonstrated good cause and actual prejudice due
to absence of Salamon instruction). It thus has been
universally understood by multiple petitioners, the
respondent, every habeas court that has considered the
issue, and the Appellate Court following Luurtsema
that procedural default is an appropriate defense to a
Salamon claim.
                           III
   Because procedural default was never addressed in
Luurtsema, it was left for future courts to decide how
the retroactivity decision should be applied when
habeas petitioners seek new trials because of the omis-
sion of a Salamon instruction. I freely acknowledge at
the outset that, in my view, this court’s decisions in
Salamon and Sanseverino should not be applied retro-
actively. Thus, if I had been a panel member in Luurt-
sema, I would have answered the first reserved question
in the negative and the second reserved question by
limiting the application of Salamon and Sanseverino
to the petitioner in Luurtsema. In fact, I strongly favor
reconsideration of the decision in Luurtsema for the
five policy reasons rejected by the plurality and Justice
Katz in their respective opinions. These reasons include
‘‘(1) the fact that law enforcement relied on the old
interpretation of the kidnapping statutes while trying
the petitioner; (2) the fact that the retroactive applica-
tion of Salamon has no deterrent value or remedial
purpose; (3) the fear that our courts will be ‘flooded’
with habeas petitions from other inmates convicted
under [the kidnapping statutes]; (4) the difficulty of
retrying such cases where significant time has elapsed
since conviction; and . . . (5) the concern that victims
will be retraumatized by again having to testify and
endure another round of judicial proceedings.’’ Luurt-
sema v. Commissioner of Correction, supra, 299 Conn.
765 (plurality opinion). Of particular concern to me is
that retroactive application of Salamon and Sansever-
ino will have no deterrent value, will make the retrial
of cases that originally were tried up to three decades
ago difficult to replicate, and may force victims who
have recovered in part from the original crime and the
first trial to reexperience their former pain and suf-
fering.
   Absent reconsideration by this court of the retroactiv-
ity issue, I would limit retroactive application of Sala-
mon and Sanseverino to cases tried before Luurtsema
in which a defendant, unlike the petitioner in the pre-
sent case, either sought a Salamon-type instruction at
trial, as counsel did in Luurtsema’s case; Luurtsema
v. Commissioner of Correction, supra, 299 Conn. 774
(plurality opinion); or raised a claim on direct appeal
relating to the omission of such an instruction, as the
defendant did in State v. Hampton, 293 Conn. 435, 455,
978 A.2d 1089 (2009), and Luurtsema also did in his
direct appeal. See State v. Luurtsema, 262 Conn. 179,
200, 811 A.2d 223 (2002). I take this position because
a criminal defendant who is convicted under the law
in effect at the time he committed the crime cannot be
said to suffer any harm from this limited application of
Salamon and Sanseverino, having been put on notice
of the consequences of his conduct. To the extent peti-
tioners raise Salamon claims for the first time in habeas
proceedings, however, I believe it is absolutely neces-
sary to apply the procedural default rule when determin-
ing whether these claims are reviewable out of respect
for the consistency of our procedural default law and
for the principle of the finality of judgments.
   In rejecting a per se rule against retroactivity, the
court in Luurtsema left open several potential options
for reviewing such claims, there being no majority in
favor of any particular approach. Among these options
are (1) a per se rule in favor of full retroactivity, as
advocated by Justice Katz; id., 791; (2) a general pre-
sumption in favor of full retroactivity subject to a few
limited exceptions, as advocated by the plurality; see
id., 764; or (3) an approach that allows for the limited
retroactivity of Salamon and Sanseverino under an
appropriate standard of review.
   The majority in the present case appears to reject
the first two options in favor of the third option of
limited retroactivity, but under a newly created and
simplified standard that requires a reviewing court to
consider whether omission of the instruction was ‘‘not
harmless beyond a reasonable doubt.’’ Like the major-
ity, I also reject the first two options. I nonetheless
disagree with the majority’s decision to create an
entirely new standard because it represents a significant
and unjustifiable departure from Connecticut’s well
established procedural default rule, which is the stan-
dard that is generally applied by reviewing courts in
these circumstances.
   The procedural default rule provides that the peti-
tioner in a habeas proceeding ‘‘must demonstrate good
cause for his failure to raise a claim at trial or on direct
appeal and actual prejudice resulting from the impropri-
ety claimed in the habeas petition.’’ (Emphasis omitted.)
Johnson v. Commissioner of Correction, 285 Conn. 556,
567, 941 A.2d 248 (2008). Thus, to the extent a petitioner
does not seek or object to the lack of a Salamon instruc-
tion at trial or raise the issue on direct appeal, his claim
is subject to procedural default unless he is able to
demonstrate good cause and actual prejudice for his
failure to do so. See, e.g., id. We have stated that ‘‘[t]he
existence of cause for a procedural default must ordi-
narily turn on whether the [petitioner] can show that
some objective factor external to the defense impeded
counsel’s efforts to comply with the [s]tate’s procedural
rule.’’ (Internal quotation marks omitted.) Id., 568. For
example, ‘‘a showing that the factual or legal basis for
a claim was not reasonably available to counsel . . .
or . . . some interference by officials . . . would con-
stitute cause under this standard.’’ (Internal quotation
marks omitted.) Id. With respect to actual prejudice, a
petitioner must show ‘‘not merely that the errors at
. . . trial created a possibility of prejudice, but that
they worked to his actual and substantial disadvantage,
infecting his entire trial with error of constitutional
dimensions.’’ (Emphasis omitted; internal quotation
marks omitted.) Murray v. Carrier, 477 U.S. 478, 494,
106 S. Ct. 2639, 91 L. Ed. 2d 397 (1986).
   Although it may be difficult for habeas petitioners
who raise Salamon claims to establish the good cause
and actual prejudice required to overcome procedural
default, it is not impossible. Moreover, application of
the procedural default rule when reviewing Salamon
claims in habeas proceedings is consistent with our
traditional respect for the finality of judgments and the
purpose and policies underlying the Great Writ. As the
state notes, the writ of habeas corpus is intended as ‘‘a
special and extraordinary writ.’’ McClain v. Robinson,
189 Conn. 663, 668, 457 A.2d 1072 (1983). It is thus
available to address ‘‘fundamental unfairness or miscar-
riage of justice’’; Bunkley v. Commissioner of Correc-
tion, 222 Conn. 444, 461, 610 A.2d 598 (1992), overruled
in part on other grounds by Small v. Commissioner of
Correction, 286 Conn. 707, 946 A.2d 1203, cert. denied
sub nom. Small v. Lantz, 555 U.S. 975, 129 S. Ct. 481,
172 L. Ed. 2d 336 (2008); and ‘‘not merely an error
which might entitle [the petitioner] to relief on appeal.’’
(Internal quotation marks omitted.) Safford v. Warden,
223 Conn. 180, 190, 612 A.2d 1161 (1992). The habeas
petitioner ‘‘does not come before the [c]ourt as one
who is innocent, but on the contrary as one who has
been convicted by due process of law . . . .’’ (Internal
quotation marks omitted.) Summerville v. Warden, 229
Conn. 397, 423, 641 A.2d 1356 (1994). Accordingly, the
petitioner ‘‘bears a heavy burden of proof’’ when
attacking a presumptively valid conviction. Lubesky v.
Bronson, 213 Conn. 97, 110, 566 A.2d 688 (1989). Lastly,
because this court has recognized that a ‘‘habeas . . .
petition may not be employed as a substitute for a direct
appeal’’; Summerville v. Warden, supra, 429; it makes
no sense to abandon the cause and prejudice standard
in favor of a harmless error standard generally applica-
ble to a direct appeal in the relatively narrow category
of cases involving Salamon claims.
   I fully appreciate the liberty interests of petitioners
who believe that they have been unfairly convicted and
incarcerated for crimes they did not commit. The proce-
dural default rule, however, provides an appropriate
mechanism for reviewing Salamon claims because it
does not forbid petitioners from bringing these claims.
It simply requires petitioners to establish good cause
and actual prejudice for failing to raise the claims at
trial or on direct appeal. Furthermore, the cause and
prejudice standard has been applied consistently in
habeas proceedings without any apparent problem for
more than two and one-half decades. See Crawford v.
Commissioner of Correction, 294 Conn. 165, 186, 982
A.2d 620 (2009) (‘‘[s]ince Jackson [v. Commissioner of
Correction, 227 Conn. 124, 629 A.2d 413 (1993)], this
court consistently and broadly has applied the cause
and prejudice standard to trial level and appellate level
procedural defaults in habeas corpus petitions’’). Thus,
abandoning that standard in favor of a different stan-
dard for the specific purpose of deciding Salamon
claims would create an incongruity in our law that
would encourage other petitioners to seek exceptions
to, and potentially undermine, the procedural default
rule.
   The majority’s only justifications for abandoning the
rule are derived from reasoning in Luurtsema that did
not reflect the views of a majority of this court. The
first justification is that ‘‘application of the procedural
default bar to protect finality of judgments seems incon-
sistent with the reasoning in [Luurtsema] that ‘the inter-
ests of finality must give way to the demands of liberty
and a proper respect for the intent of the legislative
branch.’ ’’ Text accompanying footnote 8 of the majority
opinion, quoting Luurtsema v. Commissioner of Cor-
rection, supra, 299 Conn. 766 (plurality opinion). As
previously discussed, however, the court in Luurtsema
did not adopt a per se rule in favor of full retroactivity.
The court merely held that Salamon and Sanseverino
should apply retroactively in answering ‘‘yes’’ to both
reserved questions because it was unable to achieve a
majority consensus on the scope of its holding. Insofar
as there was any agreement whatsoever on the issue,
a plurality of three justices concluded that, although
there should be a general presumption in favor of full
retroactivity, ‘‘there are various situations in which to
deny retroactive relief may be neither arbitrary nor
unjust’’; Luurtsema v. Commissioner of Correction,
supra, 299 Conn. 760; and, accordingly, the court should
grant only limited exceptions to this general presump-
tion. See id., 764.
  The majority next observes that Salamon claims
should not be subject to procedural default in habeas
proceedings because Luurtsema did not cite proce-
dural default as a limitation on its retroactivity ruling,
which the majority claims would have been a ‘‘natural
response to the state’s floodgates argument . . . .’’
This justification is equally unpersuasive. The failure
of the court in Luurtsema to consider the procedural
default bar indicates nothing about its views on the
subject because procedural default was not an issue in
that case, Luurtsema’s counsel having sought a Sala-
mon type instruction at Luurtsema’s trial. There is thus
no support for the majority’s speculation that the plural-
ity’s failure to discuss procedural default in Luurtsema
meant that it did not view procedural default as a limita-
tion on a habeas court’s review of a Salamon claim. If
that had been the case, the plurality surely would have
expressed its view directly.
   The majority’s final justification for abandoning the
procedural default rule is that ‘‘[t]he court [in Luurt-
sema] cited the harmless error standard for direct
appeal . . . as the limiting mechanism for colorable
but ultimately nonmeritorious claims.’’ The plurality in
Luurtsema, however, was not discussing the issue of
whether harmless error or the procedural default rule
should be applied to Salamon claims in habeas proceed-
ings when it made a passing reference to the harmless
error standard. Rather, the plurality was considering the
state’s policy argument that ‘‘a finding of retroactivity
would flood the court system with habeas petitioners
seeking to overturn kidnapping convictions . . . .’’
(Internal quotation marks omitted.) Luurtsema v. Com-
missioner of Correction, supra, 299 Conn. 769. In
responding to that argument, the plurality cited State
v. Hampton, supra, 293 Conn. 463–64, in which the
defendant had raised a Salamon claim in his direct
appeal, to make the point that there was no evidence
that the court would be flooded with petitioners seeking
new trials, but, instead, ‘‘courts [would] be able to dis-
pose summarily of many cases where it is sufficiently
clear from the evidence presented at trial that the peti-
tioner was guilty of kidnapping, as properly defined,
[and] that any error arising from a failure to instruct
the jury in accordance with the rule in Salamon was
harmless.’’ Luurtsema v. Commissioner of Correction,
supra, 769–70. As a consequence, the plurality’s refer-
ence to harmless error in this completely different con-
text cannot be taken as its considered view regarding
the standard that should be applied in reviewing Sala-
mon claims in habeas proceedings.
                           IV
   Applying the procedural default rule in the present
case, I would conclude that the petitioner has not dem-
onstrated good cause for or actual prejudice from his
failure to seek a Salamon-type instruction at trial or to
raise the issue on direct appeal. This court has stated
that ‘‘[t]he cause and prejudice test is designed to pre-
vent full review of issues in habeas . . . proceedings
that counsel did not raise at trial or on appeal for rea-
sons of tactics, inadvertence or ignorance . . . .’’
(Internal quotation marks omitted.) Johnson v. Com-
missioner of Correction, supra, 285 Conn. 567–68. In
addition, ‘‘[b]ecause [c]ause and prejudice must be
established conjunctively, [the court] may dispose of
[the procedurally defaulted] claim if the petitioner fails
to meet either prong.’’ (Internal quotation marks omit-
ted.) Thorpe v. Commissioner of Correction, 73 Conn.
App. 773, 780, 809 A.2d 1126 (2002).
    With respect to the first prong of the test, the peti-
tioner alleged in his habeas pleadings that his claim
of an improper jury instruction was not procedurally
defaulted because ‘‘futility provided him good cause
for not previously raising the claim’’ and because he
‘‘lacked a reasonable basis for raising the . . . claim
at either the trial or appellate level based on a long line
of consistently adverse case law, beginning with State
v. Chetcuti, 173 Conn. 165 [377 A.2d 263] (1977), which
adopted the definition of kidnapping that the petitioner
was convicted under.’’ The petitioner also alleged that
his ‘‘criminal trial and direct appeal were both decided
before the Salamon decision in 2008, and he had no
reason to believe that a challenge to the kidnapping
instruction held any merit before that [decision].’’
Although the Appellate Court agreed with this reason-
ing; see Hinds v. Commissioner of Correction, supra,
151 Conn. App. 854–55; I do not.
   As previously explained, ‘‘[t]he existence of cause for
a procedural default must ordinarily turn on whether
the [petitioner] can show that some objective factor
external to the defense impeded counsel’s efforts to
comply with the [s]tate’s procedural rule.’’ (Internal
quotation marks omitted.) Johnson v. Commissioner
of Correction, supra, 285 Conn. 568. Thus, for example,
‘‘a showing that the factual or legal basis for a claim
was not reasonably available to counsel . . . or . . .
some interference by officials . . . would constitute
cause under this standard.’’ (Internal quotation marks
omitted.) Id.
   Mindful of these principles, I do not believe that futil-
ity is a persuasive argument because Connecticut’s deci-
sional law interpreting the kidnapping statutes was not
settled at the time of the petitioner’s trial in 2002 and
his direct appeal in 2004. In Salamon, this court
observed that it ‘‘never [had] undertaken an extensive
analysis of whether our kidnapping statutes warrant
the broad construction that [the court had] given them.’’
State v. Salamon, supra, 287 Conn. 524. Justice Katz
likewise explained in her concurring opinion in Luurt-
sema that ‘‘Salamon rested on grounds that never had
been considered by this court. Not only was it the first
time that this court examined the intent element of the
kidnapping statutes and the first time that we examined
the circumstances surrounding the statutes’ enactment,
but it also was the first time that this court considered
the meaning of the statute en banc. . . . Our reexami-
nation was prompted in part by an issue expressly left
open in our prior decisions regarding whether the
existing interpretation could lead to bizarre, and there-
fore legislatively unintended, results.’’ (Citation omit-
ted.) Luurtsema v. Commissioner of Correction, supra,
299 Conn. 786 (Katz, J., concurring). Accordingly, there
was no reason for the petitioner to believe that it would
have been futile to raise such a claim.
   There also was a reasonable basis at the time of the
petitioner’s trial and direct appeal on which to challenge
this court’s interpretation of the kidnapping statutes
because, even though the court had supported a broad
interpretation of the statutes on a number of occasions
over a lengthy period of time, defendants continued to
challenge it, and at least two members of the court
expressed contrary views in concurring and dissenting
opinions issued around the time of the petitioner’s trial
and direct appeal in 2002 and 2004, respectively. See
State v. Luurtsema, supra, 262 Conn. 208–209, 211
(Katz, J., dissenting in part) (noting that, although kid-
napping did not merge with sexual assault under Con-
necticut law, court had indicated that ‘‘there may be
factual situations in which charging a defendant with
kidnapping based upon the most minuscule movement
would result in an absurd and unconscionable result,’’
such as when kidnapping is ‘‘integral or incidental to
the crime of rape’’ [internal quotation marks omitted]);
State v. Niemeyer, 258 Conn. 510, 528, 529, 782 A.2d
658 (2001) (McDonald, C. J., concurring) (expressing
view that kidnapping statute should apply only ‘‘to true
kidnapping situations and not . . . to crimes . . . in
which some confinement or asportation occurs as a
subsidiary incident,’’ and that evidence of restraint by
defendant in that case supported kidnapping conviction
because ‘‘[t]he jury could find that restraint was not
merely incidental to the assault’’ [internal quotation
marks omitted]); but see, e.g., State v. Vass, 191 Conn.
604, 614, 469 A.2d 767 (1983) (rejecting defendant’s
claim that court improperly denied request to charge
jury that he could not be convicted on kidnapping count
if jury found kidnapping was ‘‘ ‘integral or incidental’ ’’
to crime of rape because ‘‘[t]hat [was] not the law in
this state’’); State v. Briggs, 179 Conn. 328, 338, 426
A.2d 298 (1979) (rejecting defendant’s request to adopt
‘‘merger doctrine’’ that would preclude prosecution for
kidnapping that is ‘‘ ‘merely incidental’ ’’ to sexual
assault), cert. denied, 447 U.S. 912, 100 S. Ct. 3000, 64
L. Ed. 2d 862 (1980); State v. Chetcuti, supra, 173 Conn.
168–69 (rejecting challenge to kidnapping statutes as
unconstitutional on ground they can be applied to other
criminal activity to which kidnapping is only incidental
and subsidiary).4
  Rather than view this history of continuing challenges
to the court’s interpretation of the kidnapping statutes
as a reason to conclude that there was no reasonable
basis to raise a Salamon claim or that such a claim
would be futile, the petitioner should have understood
the dissenting opinion of Justice Katz in 2002 and the
concurring opinion of Chief Justice McDonald in 2001,
in which they questioned this court’s broad interpreta-
tion of the kidnapping statutes, as an invitation to raise
the claim again in the hope that the court would revisit
the issue and alter its interpretation, as it did in Salamon
only a few years later. As this court has previously
stated, ‘‘[t]he mere fact that counsel failed to recognize
the factual or legal basis for a claim, or failed to raise
the claim despite recognizing it, does not constitute
cause for a procedural default.’’ (Internal quotation
marks omitted.) Johnson v. Commissioner of Correc-
tion, supra, 218 Conn. 422, quoting Murray v. Carrier,
supra, 477 U.S. 486–87. A habeas petitioner also ‘‘may
not bypass the state courts simply because he thinks
they will be unsympathetic to the claim. Even a state
court that has previously rejected a constitutional argu-
ment may decide, upon reflection, that the contention
is valid.’’ (Internal quotation marks omitted.) Johnson
v. Commissioner of Correction, supra, 218 Conn. 422.
I would therefore conclude that the petitioner did not
establish good cause for failing to seek a Salamon type
instruction at trial or for failing to raise a claim on
direct appeal regarding the trial court’s failure to give
such an instruction, as other defendants had done.
  In light of this conclusion, there is no need to address
whether the petitioner satisfied the second prong of
the test required under the procedural default rule. I
nonetheless agree with Justice Eveleigh’s thorough
analysis of this issue in his dissenting opinion and with
his conclusion that the petitioner did not demonstrate
that he suffered actual prejudice because of the trial
court’s failure to give the jury a Salamon instruction.
      For all of the foregoing reasons, I respectfully dissent.
  1
     The petitioner makes this relatively brief argument in the middle of his
twenty-one page discussion of the procedural default rule and the conclusion
of the habeas court and the Appellate Court that the petitioner had demon-
strated the good cause and actual prejudice required under the rule to bar
a procedural default.
   2
     The majority describes the parties’ failure to raise such a claim as ‘‘beside
the point.’’ Footnote 4 of the majority opinion. I strongly disagree with this
cavalier dismissal of such an obvious and important omission. If the majority
wishes to address whether the procedural default rule should be replaced
by a different standard in the context of a Salamon claim, it must do so
by following the court’s routine practice of ordering the parties to file
supplemental briefs on the issue, as we have done when reexamining the
standard of review for resolving habeas claims alleging ineffective assistance
of counsel; see, e.g., Small v. Commissioner of Correction, 286 Conn. 707,
715 n.5, 946 A.2d 1203 (2008) (ordering supplemental briefing on issue of
appropriate standard of review in habeas proceedings for claims of ineffec-
tive assistance of counsel premised on failure of trial and appellate counsel
to raise, at trial and on direct appeal, respectively, issue of lack of instruction
on essential element of crime charged), cert. denied sub nom. Small v.
Lantz, 555 U.S. 975, 129 S. Ct. 481, 172 L. Ed. 2d 336 (2008); Ghant v.
Commissioner of Correction, 255 Conn. 1, 11 n.7, 761 A.2d 740 (2000)
(ordering supplemental briefing on standard to be applied in assessing inef-
fective assistance of counsel claim); and in numerous other cases involving
a wide variety of issues. See, e.g., In re Shane M., 318 Conn. 569, 587
and n.16, 122 A.3d 1247 (2015) (ordering supplemental briefing to consider
appropriate standard of review of trial court’s finding that parent has failed
to achieve sufficient rehabilitation); State v. Kalphat, 285 Conn. 367, 374
and n.11, 939 A.2d 1165 (2008) (ordering supplemental briefing concerning
standing of defendant to challenge legality of search); Brown v. Soh, 280
Conn. 494, 500, 909 A.2d 43 (2006) (ordering supplemental briefing on impact
of prior decision on exculpatory contracts signed by public users of commer-
cial recreational services); State v. DeCaro, 280 Conn. 456, 468–69, 908 A.2d
1063 (2006) (ordering supplemental briefing regarding whether, in light of
trial court’s finding regarding compliance with subpoena, judgment should
be affirmed); State v. Kirby, 280 Conn. 361, 387, 908 A.2d 506 (2006) (ordering
supplemental briefing on whether certain statements properly admitted at
trial); Dark-Eyes v. Commissioner of Revenue Services, 276 Conn. 559, 568
n.9, 887 A.2d 848 (ordering supplemental briefing on impact of United States
Supreme Court decision involving city’s assessment of property taxes against
Indian tribe), cert. denied, 549 U.S. 815, 127 S. Ct. 347, 166 L. Ed. 2d 26
(2006); Almada v. Wausau Business Ins. Co., 274 Conn. 449, 454–55, 876
A.2d 535 (2005) (ordering supplemental briefing on impact of prior decision
on claim of tortious processing of workers’ compensation claim); Location
Realty, Inc. v. General Financial Services, Inc., 273 Conn. 766, 771, 873
A.2d 163 (2005) (ordering supplemental briefing on applicability of particular
statute to issue on appeal); Bloom v. Gershon, 271 Conn. 96, 105–106, 856
A.2d 335 (2004) (ordering supplemental briefing on impact of prior decision
on whether Claims Commissioner had authority to permit apportionment
complaint against state); Nussbaum v. Kimberly Timbers, Ltd., 271 Conn.
65, 70, 856 A.2d 364 (2004) (ordering supplemental briefing on whether
enforceability of arbitration provision in contract is question to be decided
in first instance by arbitrator); Pikulski v. Waterbury Hospital Health Center,
269 Conn. 1, 6 n.3, 848 A.2d 373 (2004) (ordering supplemental briefing on
applicability of recent decision to issue raised on appeal); Mandell v. Gavin,
262 Conn. 659, 662 n.3, 816 A.2d 619 (2003) (ordering supplemental briefing
on meaning of statutory term); Cox Cable Advisory Council v. Dept. of
Public Utility Control, 259 Conn. 56, 62 n.8, 788 A.2d 29 (ordering supplemen-
tal briefing on whether federal legislation preempted action of advisory
council to local cable television company), cert. denied, 537 U.S. 819, 123
S. Ct. 95, 154 L. Ed. 2d 25 (2002); Darien v. Estate of D’Addario, 258 Conn.
663, 670, 784 A.2d 337 (2001) (ordering supplemental briefing on meaning
of statutory terms and relationship of certain statutes to one another);
Quarry Knoll II Corp. v. Planning & Zoning Commission, 256 Conn. 674,
699–700, 780 A.2d 1 (2001) (ordering supplemental briefing on whether
statutory amendment should be retroactively applied); Oxford Tire Supply,
Inc. v. Commissioner of Revenue Services, 253 Conn. 683, 689, 755 A.2d
850 (2000) (ordering supplemental briefing on whether statutory amendment
should be retroactively applied); State v. Hart, 221 Conn. 595, 607–608 n.10,
605 A.2d 1366 (1992) (ordering supplemental briefing on whether, after
defendant has raised issue of drug dependency, state or defendant has
burden of proof under statutory scheme and what standard applies).
   3
     The majority states that the plurality opinion in Luurtsema has preceden-
tial value because Justice Katz ‘‘agree[d] with the plurality’s thoughtful
explanation as to why we should reject the state’s call to adopt a per se
rule against retroactivity and its equally persuasive rejection of the state’s
arguments against affording relief to [Luurtsema],’’ her ‘‘sole disagreement
[being] with the [plurality’s] resolution of [the retroactivity] issue . . . [and]
its recognition of the possibility of unusual circumstances in which retroac-
tivity would not apply.’’ (Internal quotation marks omitted.) Footnote 7 of
the majority opinion. The majority, however, misses the point that a majority
of the panel members in Luurtsema failed to reach agreement on the crucial
issue of how the retroactivity decision of the court should be applied. As
previously discussed, Justice Katz supported a per se rule in favor of full
retroactivity; Luurtsema v. Commissioner of Correction, supra, 299 Conn.
791; the plurality supported a general presumption in favor of retroactivity
subject to certain qualifications that Justice Katz deemed unworkable; id.,
764 (plurality opinion); see id., 791 (Katz, J., concurring); Justice Palmer
expressed his hesitation to support a per se rule in favor of full retroactivity
at that time; see id., 797–98; and Justice McLachlan concurred in the judg-
ment with little explanation. See id., 798–99. Given these differing views, it
cannot be said that Luurtsema has any precedential value with respect to
the critical question before this court of the standard that should be applied
when considering the retroactive application of Salamon in a habeas pro-
ceeding. The fact that Justice Katz may have agreed with the plurality’s
explanation as to why it rejected the state’s policy arguments in favor of a
per se rule against retroactivity simply does not relate to this question.
Moreover, even if it did, our well established law provides that the holding
of a fragmented court ‘‘may be viewed [only] as the position taken by those
[m]embers who concurred in the judgments on the narrowest grounds
. . . .’’ (Emphasis added; internal quotation marks omitted.) State v. Ross,
supra, 272 Conn. 604 n.13. Accordingly, the majority cannot view Justice
Katz’ concurring opinion, together with the opinion of the plurality, as
supporting the conclusion that the procedural default rule does not apply
to Salamon claims because Justice Katz had the broadest view of retroactiv-
ity, not the narrowest, which means that the plurality opinion in Luurtsema
has no legal effect, contrary to what the majority would like to believe.
   4
     In Correia v. Rowland, 263 Conn. 453, 820 A.2d 1009 (2003), this court
also recognized the United States Supreme Court’s holding in the context
of procedural default that, ‘‘where a constitutional claim is so novel that
its legal basis is not reasonably available to counsel, a defendant has cause
for his failure to raise the claim in accordance with applicable . . . proce-
dures.’’ (Internal quotation marks omitted.) Id., 463, quoting Reed v. Ross,
468 U.S. 1, 16, 104 S. Ct. 2901, 82 L. Ed. 2d 1 (1984). Even if the present
claim was a constitutional claim, however, the frequency with which prior
defendants raised it or this court discussed it prior to or around the time
of the trial and direct appeal of the petitioner in the present case clearly
demonstrates that it is not a novel claim.
