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KEVIN EPPS v. COMMISSIONER OF CORRECTION
                 (AC 35259)
                Gruendel, Sheldon and Mullins, Js.
     Argued September 9—officially released November 18, 2014

   (Appeal from Superior Court, judicial district of
                Tolland, Newson, J.)
   Leon F. Dalbec, Jr., senior assistant state’s attorney,
with whom, on the brief, were David I. Cohen, state’s
attorney, and Erika L. Brookman, assistant state’s
attorney, for the appellant (respondent).
  Adele V. Patterson, senior assistant public defender,
for the appellee (petitioner).
                          Opinion

   SHELDON, J. In this habeas corpus action, the peti-
tioner, Kevin Epps, who had been convicted of assault
in the first degree in violation of General Statutes § 53a-
59 (a) (2), and kidnapping in the first degree in violation
of General Statutes § 53a-92 (a) (2) (A) and (C), chal-
lenged his kidnapping conviction on the ground that
the trial court had failed to instruct the jury that in
order to find him guilty of both assault and kidnapping
in the first degree, it had to find that he intended to
restrain the victim to a greater degree than was neces-
sary to commit the assault, in accordance with State v.
Salamon, 287 Conn. 509, 949 A.2d 1092 (2008). The
respondent, the Commissioner of Correction (commis-
sioner), argued to the habeas court, as he does here,
that the petitioner’s claim of instructional error was
procedurally defaulted because he failed to raise the
claim during the criminal trial or on direct appeal, and
failed to demonstrate good cause for, and prejudice
resulting from, the failure to do so. The habeas court
found that the petitioner had proved both cause and
prejudice, and thus concluded that his claim was not
procedurally defaulted. Accordingly, the habeas court
granted the petition for a writ of habeas corpus, vacated
the kidnapping conviction, and remanded the matter
for a new trial on that charge. The commissioner claims
in this appeal that the habeas court erred in rendering
judgment in favor of the petitioner as aforesaid. We
disagree, and thus affirm the judgment of the habeas
court.
   In addressing the petitioner’s claims on direct appeal,
this court set forth the following relevant facts. ‘‘The
victim and the [petitioner] dated on and off for about
five years, beginning in 1999, and ending at the time of
the incident in question on January 10, 2004. In Decem-
ber, 2003, the victim and the [petitioner] became
engaged. Three days prior to the incident in question,
the [petitioner] informed the victim that he had tested
positive for the sexually transmitted disease, chlamydia.
The chlamydia diagnosis sparked several arguments
between the victim and the [petitioner].
   ‘‘The victim’s relationship with the [petitioner] was
a ‘cycle,’ in which they fought, she got upset and stayed
away from him for a short time but eventually took him
back. The victim had had enough of the circular pattern.
After learning that the [petitioner] had contracted a
sexually transmitted disease, the victim decided that
the relationship had to end because she believed the
[petitioner] was not being faithful to her. She tele-
phoned the [petitioner] on January 10, 2004, and told
him that they needed to talk because their relationship
was over. On that day, the [petitioner] met the victim
after work at the Stamford train station. The victim
wanted to end the relationship with the [petitioner] that
night. They stopped at a couple of bars in the vicinity
of the train station before the [petitioner] drove them
to Rosa Hartman Park in Stamford.
   ‘‘When they arrived at the park, the victim told the
[petitioner] that she did not want to marry him and that
she did not love him, and, in response, the [petitioner]
punched her in the face. The [petitioner] subsequently
pulled her into the backseat of the van and attempted
to choke her several times. Eventually, the victim sat
in the front seat to talk to the [petitioner] in an attempt
to calm him down. At that point, she felt her pants
become wet. She then looked down and saw a gasoline
can and a book of matches in his hands. The [petitioner]
then struck a match and set her on fire.
   ‘‘The [petitioner’s] version of events was different.
He denied that the chlamydia diagnosis caused any
disagreements. According to him, the couple went to
the park and started talking and being intimate. He took
several telephone calls on his cellular phone while the
victim was in the van, and she became jealous that he
might have been talking to females during his telephone
conversations. At that point, the [petitioner] told her
they needed to separate for a little while because she
was unnecessarily jealous. Upon hearing this, the victim
attacked him, scratching his face and telling him she
was going to kill him. The [petitioner] admitted that he
hit the victim at least once, though possibly two or
three times. Because the victim was attacking him, the
[petitioner] decided to get out of the van and to walk
away to gather his thoughts. While he was walking
around the van, he saw a flash and then he noticed that
the victim was on fire.’’ State v. Epps, 105 Conn. App.
84, 86–87, 936 A.2d 701 (2007), cert. denied, 286 Conn.
903, 943 A.2d 1102 (2008).
   The petitioner was convicted, following a jury trial,
of assault in the first degree and kidnapping in the first
degree,1 and was sentenced to twenty years incarcera-
tion on the assault charge and fifteen years on the
kidnapping charge, to be served consecutively, for a
total effective sentence of thirty-five years. This court
affirmed the petitioner’s conviction. See id.
   The petitioner thereafter filed this habeas action by
way of an amended petition alleging that the trial court
erred in failing to instruct the jury that to find him guilty
of the crime of kidnapping in the first degree, it must
find that he had intended ‘‘to prevent the victim’s libera-
tion for a longer period of time or to a greater degree
than that which is necessary to commit [the underlying]
crime.’’ State v. Salamon, supra, 287 Conn. 542. In
response, the commissioner filed a return in which he
contended that the petitioner’s claim was procedurally
defaulted on the basis of the petitioner’s failure to raise
the claim of instructional error at trial and on direct
appeal. In reply to the return, the petitioner asserted
that his claim was not procedurally defaulted because
he had good cause for not raising that claim previously
and he had been prejudiced by the trial court’s failure
to instruct the jury properly on the kidnapping charge.
   Following a trial, the habeas court granted the peti-
tion, vacated the petitioner’s conviction and sentence
on the kidnapping charge and remanded the case to
the trial court for a new trial on that charge. The com-
missioner filed a petition for certification to appeal,
which the habeas court granted, and this appeal
followed.
   It is undisputed that the trial court did not instruct the
jury in this case in accordance with Salamon. Salamon,
which substantively changed the previously settled
interpretation of our kidnapping statutes, had not yet
been decided at the time of the petitioner’s trial. The
court in Salamon explained: ‘‘Our legislature, in replac-
ing a single, broadly worded kidnapping provision with
a gradated scheme that distinguishes kidnappings from
unlawful restraints by the presence of an intent to pre-
vent 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 kid-
napping in conjunction with another crime, a [peti-
tioner] 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.’’ Id.
When, as in the present case, a defendant is charged
with kidnapping in conjunction with other crimes, ‘‘the
jury must be instructed that, if it finds that the [petition-
er’s] restraint of the victim was merely incidental to
the [petitioner’s] commission of another crime against
the victim . . . then it must find the [petitioner] not
guilty of the crime of kidnapping.’’ Id., 550.
   The court in Salamon further explained that ‘‘a [peti-
tioner] 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 inci-
dental to and necessary for another crime will depend
on the particular facts and circumstances of each case.
Consequently, when the evidence reasonably supports
a finding that the restraint was not merely incidental
to the commission of some other, separate crime, the
ultimate factual determination must be made by the
jury. For purposes of making that determination, the
jury should be instructed to consider the various rele-
vant factors, including the nature and duration of the
victim’s movement or confinement by the [petitioner],
whether that movement or confinement occurred dur-
ing the commission of the separate offense, whether
the restraint was inherent in the nature of the separate
offense, whether the restraint prevented the victim from
summoning assistance, whether the restraint reduced
the [petitioner’s] risk of detection and whether the
restraint created a significant danger or increased the
victim’s risk of harm independent of that posed by the
separate offense.’’ (Emphasis omitted; footnote omit-
ted.) Id., 547–48. Our Supreme Court later ruled that
its holding in Salamon is retroactive. Luurtsema v.
Commissioner of Correction, 299 Conn. 740, 764, 12
A.3d 817 (2011).
   On the basis of the court’s rulings in Salamon and
Luurtsema, and the undisputed fact that the trial court
did not instruct the jury that if it found that the restraint
of the victim was merely incidental to the petitioner’s
commission of the assault, it could not find him guilty
of kidnapping, the petitioner would be entitled to a new
trial on the basis of that instructional infirmity unless,
in the context of this habeas action, it was determined
that his claim was procedurally defaulted.
   On appeal, the commissioner claims that the habeas
court erred in concluding that the petitioner’s instruc-
tional claim had not been procedurally defaulted.2
We disagree.
   Our review of a determination of the application of
procedural default involves a question of law over
which our review is plenary. Johnson v. Commissioner
of Correction, 285 Conn. 556, 566, 941 A.2d 248 (2008).
‘‘In discussing the principles that govern review of a
commissioner’s affirmative defense that a habeas claim
is procedurally defaulted . . . as a general rule, [t]he
appropriate standard for reviewability of habeas claims
that were not properly raised at trial . . . or on direct
appeal . . . because of a procedural default is the
cause and prejudice standard. Under this standard, the
petitioner must demonstrate good cause for his failure
to raise a claim at trial or on direct appeal and actual
prejudice resulting from the impropriety claimed in the
habeas petition. . . . [T]he cause and prejudice test is
designed to prevent full review of issues in habeas cor-
pus proceedings that counsel did not raise at trial or
on appeal for reasons of tactics, inadvertence or igno-
rance. . . . [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. . . . [For example] a showing
that the factual or legal basis for a claim was not reason-
ably available to counsel . . . or . . . some interfer-
ence by officials . . . would constitute cause under
this standard.’’ (Citations omitted; emphasis in original;
internal quotation marks omitted.) Id., 567–68. The bur-
den of demonstrating cause and prejudice is on the
petitioner. Brown v. Commissioner of Correction, 141
Conn. App. 251, 260, 61 A.3d 554, cert. denied, 308 Conn.
941, 66 A.3d 883 (2013).
   Here, the petitioner does not dispute the commission-
er’s allegation that the claim of instructional error was
not raised at trial or on direct appeal. The petitioner thus
bore the burden to demonstrate cause and prejudice—a
burden the habeas court determined that he had met.
In his appellate brief, the commissioner claimed that
the petitioner failed to prove both cause and prejudice.
At oral argument, however, the commissioner conceded
that this court’s recent decision in Hinds v. Commis-
sioner of Correction, 151 Conn. App. 837, 97 A.3d 986
(2014), is dispositive on the issue of cause. In Hinds,
this court noted that there was no basis for counsel to
have asked the trial court to give, or for the trial court
to have given, an instruction that, at that time, was
not only not permitted by law, but had been expressly
rejected by our Supreme Court. The court in Hinds
concluded that ‘‘[b]ecause there was no reasonable
basis for trial counsel to have asked for a Salamon type
charge, and, indeed, strong reason for counsel not to
seek such a charge in light of the then prevailing judicial
gloss on the kidnapping statute, we agree with the
habeas court’s conclusion that the petitioner satisfied
the cause prong of the cause and prejudice standard.’’
Id., 855. The court in Hinds thus determined that the
petitioner’s instructional claim was predicated on a
legal basis that was not available at the time of trial or
on appeal. As that is the same situation with which
we are now confronted, we likewise conclude that the
habeas court properly determined that the petitioner
satisfied his burden of proving the cause component
of the cause and prejudice standard in this case.
  We next turn to the commissioner’s claim that the
habeas court improperly determined that the petitioner
proved that he was prejudiced by the inadequate kid-
napping instruction. In order to demonstrate prejudice,
the 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 in original.) United States v.
Frady, 456 U.S. 152, 170, 102 S. Ct. 1584, 71 L. Ed. 2d
816 (1982).
  The commissioner argues that ‘‘because the evidence
in this case clearly shows that the confinement of the
victim was not merely incidental to the assaults that
the petitioner inflicted upon the victim, and thus that
the victim was restrained for a longer period of time,
[and] to a greater degree than that necessary to commit
the assaults, the petitioner cannot sustain his burden
of demonstrating that actual prejudice resulted from
the failure of the trial court to provide the jury with a
Salamon type instruction.’’3 (Internal quotation marks
omitted.)
   The court in Salamon explained that ‘‘[w]hether the
movement or confinement of the victim is merely inci-
dental to and necessary for another crime will depend
on the particular facts and circumstances of each case.
Consequently, when the evidence reasonably supports
a finding that the restraint was not merely incidental
to the commission of some other, separate crime, the
ultimate factual determination must be made by the
jury. For purposes of making that determination, the
jury should be instructed to consider the various rele-
vant factors, including the nature and duration of the
victim’s movement or confinement by the [petitioner],
whether that movement or confinement occurred dur-
ing the commission of the separate offense, whether
the restraint was inherent in the nature of the separate
offense, whether the restraint prevented the victim from
summoning assistance, whether the restraint reduced
the [petitioner’s] risk of detection and whether the
restraint created a significant danger or increased the
victim’s risk of harm independent of that posed by the
separate offense.’’ (Emphasis in original.) State v. Sala-
mon, supra, 287 Conn. 547–48. In other words,
‘‘[w]hether the [petitioner’s] conduct constituted a kid-
napping . . . is a factual question for determination by
a properly instructed jury.’’ Id., 550.
   Our Supreme Court has contemplated, however, that
there will be instances in which those determinations
may be made without a remand for a new trial for
consideration by a jury. It has stated that ‘‘[o]f the 1.5
percent of department of correction inmates incarcer-
ated for kidnapping or unlawful restraint, one can rea-
sonably assume that only a small subset will fall within
the ambit of Salamon. Of those, we expect that courts
will be able to dispose summarily of many cases where
it is sufficiently clear from the evidence presented at
trial that the petitioner was guilty of kidnapping, as
properly defined, that any error arising from a failure
to instruct the jury in accordance with the rule in Sala-
mon was harmless. . . . Likewise, we doubt the state
will expend the resources to retry cases where it is
reasonably clear that a petitioner could not have been
convicted of kidnapping under the correct interpreta-
tion of the statute.’’ (Citation omitted; footnote omit-
ted.) Luurtsema v. Commissioner of Correction, supra,
299 Conn. 769–70.
   Reading Salamon and Luurtsema together, and
although the directive by the court in Salamon is consis-
tent with long-standing legal principles mandating a
jury’s determination of factual issues, there are
instances in which the evidence will be so clear that
consideration by a jury is unnecessary. Thus, the stan-
dard is akin to that applied in analyses of prejudice in
ineffective assistance of counsel claims that are based
on counsel’s failure to request or ensure that a jury is
instructed on all of the essential elements of the crimes
with which a defendant is being charged. Our Supreme
Court has declared: ‘‘[T]he omission of an . . . essen-
tial element [of an offense] from the court’s charge . . .
almost invariably satisf[ies] the second, prejudice prong
of Strickland v. Washington, [466 U.S. 668, 687, 104 S.
Ct. 2052, 80 L. Ed. 2d 674 (1984)], because in the absence
of any alternative way for the jury to learn the require-
ments of the law, the giving of such an incomplete
instruction will invariably lead the jury to deliberate on
the charged offense without determining if the state
has proved the omitted element beyond a reasonable
doubt. The only exceptional situation in which a differ-
ent finding as to prejudice may be justified, on the
theory of harmless error, is when the reviewing court,
in examining the entire record, is ‘‘satisfied beyond a
reasonable doubt that the omitted element was uncon-
tested and supported by overwhelming evidence, such
that the jury verdict would have been the same absent
the [error . . . .]’’ (Emphasis in original; internal quota-
tion marks omitted.) State v. Padua, 273 Conn. 138,
170, 869 A.2d 192 (2005).
   This is not a case in which the allegations that gave
rise to the kidnapping charge, or any of the charges,
were uncontested and supported by overwhelming evi-
dence. Although the incident endured longer than it
took to commit the assault, the evidence is not undis-
puted or overwhelming that the victim’s movements
were restricted by the petitioner during all or portions
of that incident, if at all. The victim testified that the
petitioner repeatedly held her down, by sitting on top
of her and pinning her down with his knees to restrain
her, even when he was not hitting or choking her. The
petitioner disputed those allegations. In proceeding
through an iteration of the evidence presented at trial,
and the permissible inferences that may be drawn from
that evidence, concerning the duration of the subject
incident, the actions of the petitioner and the actions
of the victim, the commissioner is asking this court to
weigh that evidence, little of which was undisputed,
and the majority of which consisted of the testimony
of the petitioner versus the testimony of the victim.
Such is not a task that is properly ours to undertake.
  Moreover, the assault conviction was based upon
the petitioner’s alleged act of pouring gasoline on and
igniting the victim.4 The court instructed the jury that
the state claimed that the petitioner committed the
crime of kidnapping5 when he ‘‘grabbed [the victim]
and pulled her in the backseat area [of the van], and
sat on her and choked her one or more times. He would
not let her out of the van, and he poured gas on her,
igniting her.’’ On the basis of that instruction, the jury
could have found the petitioner guilty of kidnapping as
a result of the alleged conduct of holding down and
choking the victim, or the restraint that was associated
with and incidental to pouring gasoline on and igniting
her, the same conduct for which he was convicted of
assault in the first degree. In the absence of a Salamon
instruction, we have no reasonable assurance that the
kidnapping conviction was not based on restraint of
the victim that was incidental to the assault of which
the petitioner was convicted.
   On the basis of the foregoing, we conclude that the
petitioner proved that he was prejudiced by the instruc-
tional error on the kidnapping charge, and thus that
the habeas court properly vacated his kidnapping con-
viction and remanded the case for a new trial on that
charge.
      The judgment is affirmed.
      In this opinion the other judges concurred.
  1
    The petitioner was acquitted of attempted murder.
  2
    The commissioner also claims that ‘‘[t]he habeas court erred when it
ruled that the petitioner’s jury instruction claim was not subject to the
procedural default rules.’’ Although the habeas court stated that ‘‘this is not
a claim subject to being procedurally defaulted,’’ which can be interpreted
in several ways, it properly proceeded to conduct a procedural default
analysis. The commissioner’s claim in this regard is thus of no moment.
  3
    The commissioner also claims that the habeas court improperly placed
the burden on him to show that the petitioner was not prejudiced by the
lack of a Salamon instruction. Because our review of the commissioner’s
procedural default claim is plenary, we need not address this claim.
  4
    The attempted murder charge was based upon the same conduct.
  5
    The court’s instructions as to the factual bases for the two alternate
theories the state alleged in the kidnapping charge were identical.
