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      PATRICK NEMHARD v. COMMISSIONER
               OF CORRECTION
                  (AC 35681)
                 Beach, Keller and Pellegrino, Js.
        Argued January 21—officially released May 19, 2015

   (Appeal from Superior Court, judicial district of
               Tolland, Sferrazza, J.)
  Cameron R. Dorman, assigned counsel, for the appel-
lant (petitioner).
   Michele C. Lukban, senior assistant state’s attorney,
with whom, on the brief, were John C. Smriga, state’s
attorney, and Craig P. Nowak, senior assistant state’s
attorney, for the appellee (respondent).
                          Opinion

   PELLEGRINO, J. The petitioner, Patrick Nemhard,
appeals from the judgment of the habeas court dismiss-
ing his petition for a writ of habeas corpus. On appeal,
the petitioner claims that the court improperly dis-
missed his claim on the ground that his witness in
support of his claim of duress1 does not constitute newly
discovered evidence.2 We disagree and, accordingly,
affirm the judgment of the court.
   The petitioner was convicted of rioting in a correc-
tional institution in violation of General Statutes § 53a-
179b (a),3 for which he was sentenced to twenty years
incarceration, execution suspended after fifteen years,
and five years of probation. On his direct appeal, the
judgment of conviction was affirmed by this court in a
per curiam decision; State v. Nemhard, 39 Conn. App.
930, 667 A.2d 571 (1995); and at least three habeas
petitions have been rejected regarding this conviction.
See, e.g., Nemhard v. Rodriguez, United States District
Court, Docket No. 3:01-cv-1700 (JCH) (D. Conn. Sep-
tember 20, 2004); Nemhard v. Commissioner of Correc-
tion, 63 Conn. App. 906, 773 A.2d 1002, cert. denied,
257 Conn. 906, 777 A.2d 193 (2001); Nemhard v. Com-
missioner of Correction, 56 Conn. App. 527, 745 A.2d
190 (2000).
   This habeas petition, filed August 5, 2010, and
amended on June 11, 2012, claims actual innocence on
the basis of newly discovered evidence of a witness
who claimed the petitioner had acted under duress.4
The petitioner at the habeas trial called Raphael Ortiz,
an inmate in the same correctional institution as the
petitioner at the time of the incident, who testified that,
prior to the rioting, he observed some gang members,
one of whom was a person named Buddy, tell the peti-
tioner that he had to do what he was told to do or
otherwise he would get hurt. Ortiz spoke with the peti-
tioner at that time and advised him not to get involved.
Ortiz never mentioned what he saw because he feared
for his own safety and did not know the petitioner’s
name. Further, Ortiz testified that in the morning after
the riot, when prison staff members asked him if he
knew anything, he told them that he had ‘‘seen some
kid getting pressured earlier’’ and did not know if that
was part ‘‘of what was going on.’’ As a result of that
statement, Ortiz was placed in segregation and initially
suspected of having participated in a planned escape.
Sometime thereafter, at another correctional institu-
tion, Ortiz recognized the petitioner and passed him a
note about the events prior to the riot and regarding
the encounter with Buddy.
   At the conclusion of Ortiz’ testimony and after the
petitioner rested his case, the respondent, the Commis-
sioner of Correction, orally moved to dismiss the peti-
tion for failure of the petitioner to state a claim. Then,
the respondent, in elaborating on his oral motion,
focused on the evidence that the petitioner presented
at the habeas trial, namely, Ortiz’ testimony, and not
on the petitioner’s pleadings. Thereafter, the court dis-
missed the petitioner’s amended petition in an oral deci-
sion. Regarding the petitioner’s actual innocence claim,
the court stated the following with respect to the appli-
cability of the newly discovered evidence standard: ‘‘I
have to apply the newly discovered evidence standard,
and newly discovered evidence is such that it couldn’t
have been discovered, despite the exercise of due dili-
gence. . . .
  ‘‘And due diligence is reasonable. It doesn’t require
everything possible, but the question . . . to be
answered is, what evidence would have been discov-
ered by a reasonable criminal defense attorney by perse-
vering application and untiring efforts in good
earnest . . . .
  ‘‘[Y]ou can’t describe as newly discovered evidence
evidence which the petitioner had at the time of his
criminal trial. . . .
  ‘‘And I think that’s what we have in this case. The
petitioner knew that he was under duress. . . . He
would have been able to tell his attorneys and share
that information.
   ‘‘He would have known who . . . were witnesses to
that duress, including [Ortiz], who apparently had a
conversation with the petitioner at the time before the
events that occurred . . . and the only evidence I have
in front of me is that [Ortiz] recommended to the peti-
tioner that he stay in his cell and not join in; and the
petitioner indicated that he was perhaps down with it
or he understood and everything would be okay.
  ‘‘So, under those circumstances, there’s no way to
characterize this evidence and this duress defense as
newly discovered . . . .’’ Thereafter, the court granted
the respondent’s motion to dismiss, and on April 25,
2013, the court granted the petition for certification to
appeal to this court.
  On appeal, the petitioner claims that the court
improperly dismissed his claim on the ground that the
evidence to support his claim of duress, namely, Ortiz’
testimony, does not constitute newly discovered evi-
dence. We disagree.
   It is clear from the foregoing that the court based its
decision not on the petitioner’s failure to state a claim in
his petition, but on the basis of the evidence presented
during the petitioner’s case-in-chief. Therefore, despite
the respondent’s characterization that the petitioner
failed to state a claim, we believe this matter is before
us on the ground that the court granted the respondent’s
motion to dismiss on the basis of the petitioner’s failure
to present a prima facie case, which, under Practice
Book § 15-8,5 is appropriate given the timing of the
motion, which occurred after the petitioner rested his
case and before the respondent presented any evidence.
We set forth the applicable standard of review for a
motion to dismiss for failure to present a prima facie
case. ‘‘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.’’ (Internal quotation
marks omitted.) McMillion v. Commissioner of Correc-
tion, 151 Conn. App. 861, 869–70, 97 A.3d 32 (2014).
   ‘‘The legal principles governing a trial court’s decision
to dismiss a claim for failure to present a prima facie
case pursuant to Practice Book § 15-8 are well settled.
A prima facie case, in the sense in which that term is
relevant to this case, is one sufficient to raise an issue
to go to the trier of fact. . . . In order to establish a
prima facie case, the proponent must submit evidence
which, if credited, is sufficient to establish the fact or
facts which it is adduced to prove. . . . In evaluating
the [granting of] a motion to dismiss, [t]he evidence
offered by the plaintiff is to be taken as true and inter-
preted in the light most favorable to [the plaintiff], and
every reasonable inference is to be drawn in [the plain-
tiff’s] favor. . . . Whether the plaintiff has established
a prima facie case entitling the plaintiff to submit a
claim to a trier of fact is a question of law over which
[this court’s] review is plenary.’’ (Citations omitted;
internal quotation marks omitted.) Id., 870–71.
   To prove actual innocence the petitioner must be
able ‘‘to show that based on proffered newly discovered
evidence and the entire record before the jury that
convicted him, no rational trier of fact could [find] proof
of guilt beyond a reasonable doubt.’’ (Internal quotation
marks omitted.) Williams v. Commissioner of Correc-
tion, 240 Conn. 547, 548, 692 A.2d 1231 (1997). ‘‘Actual
innocence, also referred to as factual innocence . . .
is different than legal innocence. Actual innocence is
not demonstrated merely by showing that there was
insufficient evidence to prove guilt beyond a reasonable
doubt. . . . Rather, actual innocence is demonstrated
by affirmative proof that the petitioner did not commit
the crime. . . .
  ‘‘[T]he proper standard for evaluating a freestanding
claim of actual innocence . . . is twofold. First, the
petitioner must establish by clear and convincing evi-
dence that, taking into account all of the evidence—
both the evidence adduced at the original criminal trial
and the evidence adduced at the habeas corpus trial—
he is actually innocent of the crime of which he stands
convicted. Second, the petitioner must also establish
that, after considering all of that evidence and the infer-
ences drawn therefrom as the habeas court did, no
reasonable fact finder would find the petitioner guilty of
the crime.’’ (Citation omitted; internal quotation marks
omitted.) Jackson v. Commissioner of Correction, 149
Conn. App. 681, 706, 89 A.3d 426, cert. granted on other
grounds, 313 Conn. 901, 96 A.3d 558 (2014).
   Further, we note: ‘‘To permit a petitioner to bring a
substantial claim of actual innocence based on evidence
that is not newly discovered would be inconsistent with
our Supreme Court’s conclusion that the standard gov-
erning a claim of actual innocence should be more
demanding than the standard used for determining
whether a new trial should be granted because of newly
discovered evidence. . . . We view this holding as one
that balances the societal interests of finality, comity,
and conservation of scarce judicial resources, against
the benefit of ‘dispos[ing] of the case as law and justice
require.’ General Statutes § 52-470 (a). Entertaining
claims of actual innocence that are not based on newly
discovered evidence would have a disruptive effect on
the finality of judgments because it would permit a
petitioner to raise allegations that, absent proof of an
antecedent constitutional violation that affected the
result of his criminal trial, could have been raised at
the criminal trial.’’ (Citation omitted.) Williams v. Com-
missioner of Correction, 41 Conn. App. 515, 526–27,
677 A.2d 1 (1996), appeal dismissed, 240 Conn. 547, 692
A.2d 1231 (1997) (certification improvidently granted).
‘‘This evidentiary burden is satisfied if a petitioner can
demonstrate, by a preponderance of the evidence, that
the proffered evidence could not have been discovered
prior to the petitioner’s criminal trial by the exercise
of due diligence.’’ (Internal quotation marks omitted.)
Johnson v. Commissioner of Correction, 101 Conn.
App. 465, 471, 922 A.2d 221 (2007).
   Here, the petitioner argues that what is newly discov-
ered is the fact that Ortiz, now identified, overheard
the threats. Yet, according to Ortiz, he and the petitioner
conversed regarding the initial threats from ‘‘Buddy.’’
He did not only overhear them, but the petitioner also
told Ortiz to mind his own business. Therefore, the
evidence demonstrates that, despite perhaps not know-
ing the identity of Ortiz, the petitioner did know at the
time of his criminal trial that a fellow inmate with whom
he had conversed had overheard the alleged threats.
Given this undisputed factual background, the peti-
tioner cannot refute the habeas court’s determination
that Ortiz’ identity was not newly discovered because
it could have been discovered prior to the criminal trial
by the exercise of due diligence. It is also undisputed
that the petitioner never advised his attorneys at the
time of his criminal trial that he had been under duress.
The consequence of his failure to raise this issue with
his trial attorneys is that no effort was made to explore
his theory of duress or discover the identity of Ortiz.
Therefore, the petitioner cannot succeed on his actual
innocence claim because actual innocence alleged in a
habeas petition must be premised on newly discovered
evidence that could not have been discovered by the
exercise of due diligence prior to his criminal trial.
Accordingly, we conclude that the court properly dis-
missed the petition for a writ of habeas corpus.
      The judgment is affirmed.
      In this opinion the other judges concurred.
  1
      Duress is a statutorily defined defense. ‘‘In any prosecution for an offense,
it shall be a defense that the defendant engaged in the proscribed conduct
because he was coerced by the use or threatened imminent use of physical
force upon him or a third person, which force or threatened force a person
of reasonable firmness in his situation would have been unable to resist.
The defense of duress as defined in this section shall not be available to a
person who intentionally or recklessly places himself in a situation in which
it is probable that he will be subjected to duress.’’ General Statutes § 53a-14.
    2
      The petitioner also asserts that the court improperly concluded that a
claim of actual innocence must be predicated on newly discovered evidence
and that we should overrule this court’s decision in Williams v. Commis-
sioner of Correction, 41 Conn. App. 515, 677 A.2d 1 (1996), appeal dismissed,
240 Conn. 547, 692 A.2d 1231 (1997) (certification improvidently granted).
It is well established that ‘‘this court’s policy dictates that one panel should
not, on its own, [overrule] the ruling of a previous panel. The [overruling]
may be accomplished only if the appeal is heard en banc.’’ (Internal quotation
marks omitted.) Diaz v. Commissioner of Correction, 125 Conn. App. 57,
68 n.9, 6 A.3d 213 (2010), cert. denied, 299 Conn. 926, 11 A.3d 150 (2011).
We decline to depart from Williams and, therefore, do not analyze this claim.
    3
      General Statutes § 53a-179b provides: ‘‘(a) A person is guilty of rioting
at a correctional institution when he incites, instigates, organizes, connives
at, causes, aids, abets, assists or takes part in any disorder, disturbance,
strike, riot or other organized disobedience to the rules and regulations of
such institution.
    ‘‘(b) Rioting at a correctional institution is a class B felony.’’
    4
      The petitioner also initially claimed ineffective assistance of trial counsel
and ineffective assistance of habeas counsel. The petitioner later sought
to withdraw these counts, whereas the respondent, the Commissioner of
Correction, asked that these counts be dismissed with prejudice. Thereafter,
the court dismissed these counts, and they are not the subject of this appeal.
    5
      Practice Book § 15-8 provides: ‘‘If, on the trial of any issue of fact in a
civil matter tried to the court, the plaintiff has produced evidence and rested,
a defendant may move for judgment of dismissal, and the judicial authority
may grant such motion if the plaintiff has failed to make out a prima facie
case. The defendant may offer evidence in the event the motion is not
granted, without having reserved the right to do so and to the same extent
as if the motion had not been made.’’
