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                         APPENDIX
       EARL THOMPSON v. COMMISSIONER
              OF CORRECTION*
           Superior Court, Judicial District of Tolland
                     File No. CV-12-4004330
               Memorandum filed August 4, 2014

                          Proceedings

  Memorandum of decision on petitioner’s petition for
writ of habeas corpus. Petition denied.
  W. Theodore Koch III, for the petitioner.
   Lisamaria T. Proscino, special deputy assistant
state’s attorney, and Michael J. Proto, assistant state’s
attorney, for the respondent.
                         Opinion

   FUGER, J. The petitioner, Earl Thompson, inmate #
305523, alleges in his petition for a writ of habeas cor-
pus, initially filed on August 31, 2011, and amended for
the final time on June 10, 2014, that his confinement
under the custody of the respondent, the Commissioner
of Correction, is illegal. Specifically, the petitioner in
the three count complaint alleges that: (1) he is actually
innocent of the crimes of which he was convicted; (2)
his trial defense counsel, Attorney Gerald Beaudoin,
was ineffective in his representation of the petitioner
at his criminal trial; and (3) that his appellate counsel,
Attorney Beaudoin, was ineffective.
   During the July 29, 2014 trial on the merits of this
habeas petition, the court received testimony from the
petitioner, his trial defense counsel, Attorney Beaudoin,
Attorney John Walkley, inmate Stephen Nelson, and
inmate Ian Wright. Finally, the court received various
pieces of documentary evidence, including the petition-
er’s criminal trial transcript, into evidence.
                 FINDINGS OF FACT
  1. The petitioner was a defendant in a criminal case
proceeding in the judicial district of Hartford under
Docket No. CR-08-06918868T in which, after a trial to
a jury on October 22, 2009, he was found guilty of
robbery in the first degree in violation of General Stat-
utes § 53a-134a (4), conspiracy to commit robbery in
the first degree in violation of General Statutes §§ 53a-
48 and 53a-134a (4), as well as kidnapping in the first
degree in violation of General Statutes §§ 53a-92 (a) (2)
(B) and 53a-8.
  2. These charges arose out of a home invasion that
took place in Bloomfield on August 10, 2004.
   3. The jury could reasonably find the following facts
to be true. ‘‘At approximately 11:30 p.m. on August 10,
2004, Stephan Julian arrived at her home in Bloomfield.
At that time, her son, Damien Gardner, resided with
her but was not present that night. As Julian entered
the house, she was confronted by a man with a gun. A
second man, also armed with a gun, quickly emerged.
Because the faces of both men were covered, Julian
could not recognize them, but she was able to determine
that they were both dark skinned with Jamaican
accents. The men repeatedly asked Julian where money
was located in the house and forced her to lie on the
floor in a downstairs bathroom while they searched the
house. The men periodically checked on Julian, and
she could hear them going up and down the stairs of
her home. At one point, she heard an upstairs toilet
flush. Eventually, when Julian no longer heard the men
in her home, she peeked out of the bathroom and saw
that it was light outside. She exited the bathroom and
called the police.
  4. ‘‘Detective Eric Kovanda was primarily responsible
for processing the crime scene. In addition to other
forensic evidence, Kovanda collected two urine sam-
ples from the rim of the toilet located in one of the
upstairs bathrooms. The DNA profile developed from
the urine swabs did not match any in the existing
offender databases. In 2006, two jailhouse informants
identified the [petitioner] as a suspect, and, conse-
quently, on February 11, 2008, the police collected a
DNA sample from the [petitioner] for comparison to
the DNA profile developed from the urine samples that
had been collected from the crime scene.
   5. ‘‘On February 28, 2008, Kovanda met with the [peti-
tioner] to discuss the August 11, 2004 incident. The
[petitioner] indicated that he knew Julian’s son, Gard-
ner, and that he had been at their house a week or a
few days prior to August 11, 2004.’’1
   6. The petitioner was sentenced by the court (Dewey,
J.) to a prison term of twenty years on the charge of
robbery in the first degree, twenty years to run concur-
rent on the conspiracy to commit robbery in the first
degree, and twenty-five years, to run consecutive on
the count of kidnapping in the first degree. The total
effective sentence was a commitment to the custody
of the respondent for forty-five years.
  7. Additional facts will be discussed, as necessary,
in subsequent portions of this decision.
                       DISCUSSION
   The petitioner now comes before this court seeking
to have this court order that the petitioner’s conviction
be set aside and the matter returned to the docket for
further proceedings. The petitioner’s major argument
is that his trial defense counsel was constitutionally
deficient in his performance of duties and that there-
fore, the petitioner was deprived of the assistance of
the competent counsel guaranteed to him by the sixth
amendment to the United States constitution, thereby
rendering his confinement by the respondent illegal.
While there are other claims, the petitioner mounts his
primary attack upon his trial defense counsel for his
failure to file a motion for a finding of not guilty as to
the charge of kidnapping.
  It is important to understand that this instant pro-
ceeding is an action seeking the issuance of a writ of
habeas corpus. This case is now in what is often termed
the ‘‘court of last resort.’’ A petition for a writ of habeas
corpus is, therefore, an application for extraordinary
judicial relief in which, contrary to the criminal trial
court, the burden rests with the petitioner.2
  Notwithstanding the arguments raised by counsel and
the petitioner, the court disagrees with the position of
the petitioner and will deny the petition for a writ of
habeas corpus.
   At the outset, one must understand that there is a
critical difference between the legal status of a person
who has been accused of a crime as opposed to one
who has been convicted of a crime. While the person
who has been accused of a crime is entitled to a pre-
sumption of his or her innocence, the petitioner in a
habeas corpus petition is not. ‘‘It is undoubtedly true
that ‘[a] person when first charged with a crime is enti-
tled to a presumption of innocence, and may insist that
his guilt be established beyond a reasonable doubt. In
re Winship, 397 U.S. [358, 90 S. Ct. 1068, 25 L. Ed. 2d
368 (1970)].’ Herrera v. Collins, 506 U.S. 390, [398, 113
S. Ct. 853], 122 L. Ed. 2d 203 (1993). . . . The presump-
tion of innocence, however, does not outlast the judg-
ment of conviction at trial.’’ (Citations omitted.)
Summerville v. Warden, 229 Conn. 397, 422–23, 641
A.2d 1356 (1994). Consequently, the burden of proving
entitlement to the grant of a writ rests with the peti-
tioner. ‘‘Thus, in the eyes of the law, [the] petitioner
does not come before the Court as one who is innocent,
[but, on the contrary, as] one who has been convicted
by due process of law . . . .’’ (Internal quotation marks
omitted.) Id., 423. The petitioner is not, therefore, in
the role of a ‘‘defendant,’’ but is instead, a ‘‘convict.’’
   The writ of habeas corpus is an ancient and time-
honored component of our Anglo-American jurispru-
dence. ‘‘We do well to bear in mind the extraordinary
prestige of the Great Writ, habeas corpus ad subjicien-
dum, in Anglo-American jurisprudence: ‘the most cele-
brated writ in the English law.’ 3 Blackstone
Commentaries 129. It is ‘a writ antecedent to statute,
and throwing its root deep into the genius of our com-
mon law. . . . It is perhaps the most important writ
known to the constitutional law of England, affording
as it does a swift and imperative remedy in all cases
of illegal restraint or confinement. It is of immemorial
antiquity, an instance of its use occurring in the thirty-
third year of Edward I.’ ’’3 (Emphasis omitted; footnote
omitted.) Fay v. Noia, 372 U.S. 391, 399–400, 83 S. Ct.
822, 9 L. Ed. 2d 837 (1963). When the United States
achieved independence from England, the writ made
the transatlantic voyage and became embodied in our
law as well. ‘‘Received into our own law in the colonial
period, given explicit recognition in the Federal Consti-
tution, Art. I, § 9, cl. 2, incorporated in the first grant
of federal court jurisdiction, Act of September 24, 1789,
c. 20, § 14, 1 Stat. 81–82, habeas corpus was early con-
firmed by Chief Justice John Marshall to be a ‘great
constitutional privilege.’ Ex parte Bollman and
Swartwout, 4 Cranch 75, 95.’’ (Footnotes omitted.) Fay
v. Noia, supra, 400.
   Issuance of a writ of habeas corpus is a remedy whose
‘‘most basic traditions and purposes’’; O’Neal v. McAn-
inch, 513 U.S. 432, 443, 115 S. Ct. 992, 130 L. Ed. 2d
947 (1995); are to ‘‘avoid a grievous wrong—holding a
person in custody in violation of the [federal] constitu-
tion,’’ and thereby to protect ‘‘individuals from unconsti-
tutional convictions and helps to guarantee the integrity
of the criminal process by assuring that trials are funda-
mentally fair.’’ Id., 442. Moreover, when a court reviews
a petition for habeas corpus, ‘‘it must decide whether
the petitioner is in custody in violation of the Constitu-
tion or laws or treaties of the United States. . . . The
court does not review a judgment, but the lawfulness of
the petitioner’s custody simpliciter.’’ (Citation omitted;
emphasis omitted; internal quotation marks omitted.)
Coleman v. Thompson, 501 U.S. 722, 730, 111 S. Ct.
2546, 115 L. Ed. 2d 640 (1991).4 So, the writ of habeas
corpus ‘‘has been for centuries esteemed the best and
only sufficient defense of personal freedom . . . .’’
(Citation omitted; internal quotation marks omitted.)
Lonchar v. Thomas, 517 U.S. 314, 324, 116 S. Ct. 1293,
134 L. Ed. 2d 440 (1996).
   A criminal defendant, of course, has an absolute con-
stitutional right to persist in a plea of not guilty, even
in the face of what some might think to be seemingly
insurmountable obstacles and overwhelming evidence.
He or she has an absolute right to hold the government
to its justifiably high burden of proof and take the matter
to a jury of his or her peers. The constitution of the
United States, the Bill of Rights, and the constitution
of the state of Connecticut collectively guarantee the
fundamental right of a person to plead not guilty and
have his or her case decided before a jury of his or her
peers. Our common law has interpreted these constitu-
tional guarantees as requiring that the government seek-
ing to deprive a person of freedom must first prove that
person’s guilt beyond all reasonable doubt.5 Moreover,
all criminal defendants are entitled to the representa-
tion of counsel. The sixth amendment to the United
States constitution provides in relevant part: ‘‘In all
criminal prosecutions, the accused shall enjoy the right
. . . to be confronted with the witnesses against him
. . . and to have the assistance of counsel for his
defense.’’ The sixth amendment right of confrontation
and right to counsel is made applicable to the states
through the due process clause of the fourteenth
amendment. See Pointer v. Texas, 380 U.S. 400, 403, 85
S. Ct. 1065, 13 L. Ed. 2d 923 (1965), and Gideon v.
Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d
799 (1963), respectively. The sixth amendment right to
counsel is necessarily the right to an effective counsel.
Notwithstanding, our constitutions do not require that
a criminal defendant receive perfect representation.
   It is not, and never has been, for the trial defense
counsel to make the decisions that a client must make.
The defendant decides how to plead, whether to testify,
whether to waive the right to trial by jury, etc. Neverthe-
less, effective representation by counsel is crucial.
‘‘Because a defendant often relies heavily on counsel’s
independent evaluation of the charges and defenses,
the ‘right to effective assistance of counsel includes an
adequate investigation of the case to determine facts
relevant to the merits or to the punishment in the event
of conviction.’ Copas v. Commissioner of Correction,
234 Conn. 139, 154, 662 A.2d 718 (1995).’’ Baillargeon
v. Commissioner of Correction, 67 Conn. App. 716, 721,
789 A.2d 1046 (2002). Consequently, an attorney who
fails to offer his or her client proper counsel at critical
junctures in the trial may well be providing ineffective
representation.
   In order that a petitioner prevail in a claim of ineffec-
tive assistance of counsel, the proof must satisfy both
prongs of the test set forth by the United States Supreme
Court in Strickland v. Washington, 466 U.S. 668, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984), before the court
can grant relief. Specifically, the petitioner must first
show ‘‘that counsel’s performance was deficient. This
requires showing that counsel made errors so serious
that counsel was not functioning as the ‘counsel’ guar-
anteed the defendant by the Sixth Amendment.’’ Id.,
687. If, and only if, the petitioner manages to get over the
first hurdle, then the petitioner must clear the second
obstacle by proving ‘‘that the deficient performance
prejudiced the defense. This requires showing that
counsel’s errors were so serious as to deprive the defen-
dant of a fair trial, a trial whose result is reliable. Unless
a defendant makes both showings, it cannot be said
that the conviction . . . resulted from a breakdown in
the adversary process that renders the result unrelia-
ble.’’ Id. In short, the petitioner must show both defi-
ciency and prejudice. A failure to prove both, even
though counsel’s trial performance may have been sub-
standard, will result in denial of the petition.
   As already noted, a criminal defendant is entitled
to the representation of trained and competent legal
counsel. Notwithstanding, ‘‘[t]he Sixth Amendment
guarantees reasonable competence, not perfect advo-
cacy judged with the benefit of hindsight. See Bell v.
Cone, 535 U.S. [685, 702, 122 S. Ct. 1843, 152 L. Ed. 2d
914 (2002)]; Kimmelman v. Morrison, 477 U.S. 365, 382
[106 S. Ct. 2574, 91 L. Ed. 2d 305] (1986); Strickland
v. Washington, [supra, 466 U.S. 689]; United States v.
Cronic, 466 U.S. 648, 656 [104 S. Ct. 2039, 80 L. Ed. 2d
657] (1984).’’ Yarborough v. Gentry, 540 U.S. 1, 8, 124
S. Ct. 1, 157 L. Ed. 2d 1 (2003). ‘‘[T]o prove that his
counsel’s performance was deficient, the petitioner
must demonstrate that trial counsel’s representation
fell below an objective standard of reasonableness.
. . . Because of the difficulties inherent in making the
evaluation, a court must indulge a strong presumption
that counsel’s conduct falls within the wide range of
reasonable professional assistance; that is, the [peti-
tioner] must overcome the presumption that, under the
circumstances, the challenged action might be consid-
ered sound trial strategy.’’ (Internal quotation marks
omitted.) Smith v. Commissioner of Correction, 148
Conn. App. 517, 524, 85 A.3d 1199, cert. denied, 312
Conn. 901, 91 A.3d 908 (2014).
   Trial in this court of a habeas petition is not an oppor-
tunity for a new counsel to attempt to relitigate a case
in a different manner. A habeas court ‘‘may not indulge
in hindsight to reconstruct the circumstances sur-
rounding the challenged conduct, but must evaluate the
acts or omissions from trial counsel’s perspective at
the time of the trial.’’ Beasley v. Commissioner of Cor-
rection, 47 Conn. App. 253, 264, 704 A.2d 807 (1997),
cert. denied, 243 Conn. 967, 707 A.2d 1267 (1998). ‘‘A
fair assessment of attorney performance requires that
every effort be made to eliminate the distorting effects
of hindsight, to reconstruct the circumstances of coun-
sel’s challenged conduct, and to evaluate the conduct
from counsel’s perspective at the time. Because of the
difficulties inherent in making the evaluation, a court
must indulge a strong presumption that counsel’s con-
duct falls within the wide range of reasonable profes-
sional assistance . . . .’’ (Internal quotation marks
omitted.) Henry v. Commissioner of Correction, 60
Conn. App. 313, 317, 759 A.2d 118 (2000).
   Turning now to the specific complaints of the peti-
tioner and the specific deficiencies alleged in the com-
plaint, this habeas court will find that there is no merit
to any of the points raised by the petitioner.
   The petitioner was charged with both kidnapping and
the felony of robbery. It is axiomatic that at the time
of the petitioner’s criminal trial, ‘‘to commit a kidnap-
ping in conjunction with another crime, a defendant
must intend to prevent the victim’s liberation for a
longer period of time or to a greater degree than that
which is necessary to commit the crime.’’ State v. Sala-
mon, 287 Conn. 509, 542, 949 A.2d 1092 (2008). ‘‘[A]
defendant may be convicted of both kidnapping and
another substantive crime if, at any time prior to, during
or after the commission of that other crime, the victim
is moved or confined in a way that has independent
criminal significance, that is, the victim was restrained
to an extent exceeding that which was necessary to
accomplish or complete the other crime. Whether the
movement or confinement of the victim is merely 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 defendant,
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 defendant’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 altered; footnote omit-
ted.) Id., 547–48.
   The petitioner’s theory of defense at his trial was
that he did not commit these crimes, which, given the
inability of the victim to identify the perpetrators, was
not an altogether bad decision. The petitioner com-
plains in his habeas petition that his trial defense coun-
sel was deficient in his performance by neither raising
the Salamon defense in a motion for a finding of not
guilty before the trial judge and by failing to make that
argument to the jury. It is uncontested that the trial
defense counsel did neither, and this court makes that
specific finding of fact. It is also uncontested that in
her instructions to the jury, the trial court correctly and
clearly gave a proper Salamon instruction.6 The issue
having been submitted to the jury after having received
appropriate instructions, of course, left the determina-
tion as to whether the restraint involved in this case
was incidental to the robbery as a question of fact to
be made by the jury.
   Notwithstanding, the issue as to whether this factual
determination should have been presented to the jury
was not resolved at the petitioner’s criminal trial. Trial
defense counsel never moved for a finding of not guilty
on the kidnapping charge on this basis, nor did he make
such an argument to the jury. At the habeas trial, coun-
sel clearly explained that he made the conscious deci-
sion not to do so because he did not want to lose
credibility with the judge or the jury. Although it is
clear that lawyers are free to make conflicting, mutually
exclusive arguments to juries, there is the inherent risk
that in so doing the credibility of a defense could suffer.
In this case, the defense strategy was that the petitioner
did not commit the crime. To make the argument to
the jury, even though he was not the perpetrator, that
the restraint involved in the case was merely incidental
to the robbery was a risky strategy. Even though such
an argument would be permissible, trial defense coun-
sel was correct in believing that doing so could cause
him to lose credibility with the jury and thereby harm
the petitioner’s case. Consequently, he made the strate-
gic decision to eschew such an argument. This court
cannot find that this strategic decision was unwarranted
or unsound and, therefore, will not find that the failure
on the part of trial defense counsel to do so was defi-
cient performance.
  The same finding cannot be made in regard to the
decision not to move for a finding of not guilty with
the trial judge before the case even went to the jury.
This court will find it was deficient performance on the
part of trial defense counsel not to raise such a motion
with the trial judge. The main distinction between rais-
ing the motion to the judge and making a similar argu-
ment to the jury is that the judge would be deciding
the motion as a matter of law, while jury would be
finding facts. Simply put, while there could be some
blowback from making a seemingly incongruous argu-
ment to the jury, there was no risk of that in presenting
the motion for a finding of not guilty to the judge.
Consequently, this court finds that the trial defense
counsel was deficient in his performance of duty to the
petitioner by not raising the motion to the trial court
judge. This finding is but the first hurdle the petitioner
must clear in order to prove ineffective assistance of
counsel.
   This court must now evaluate whether the deficient
performance by trial defense counsel prejudiced the
petitioner. In other words, is it reasonably probable
that the deficient performance caused the result of the
trial to be unreliable. The answer to this will turn upon
a determination by this habeas court as to whether it
is reasonably probable that had the trial court judge
been presented with that motion, would she have
granted it? To answer that question, this court has care-
fully [reviewed] all of the testimony in the petitioner’s
criminal trial focusing on the issue of whether there
was any evidence that a reasonably prudent jury might
use to decide the restraint issue adversely to the govern-
ment. First of all, we have the fact that the jury did not
make such a finding. Moreover, there is nothing in the
record that in any way makes that finding clearly errone-
ous or unreasonable. In other words, a reading of the
transcript clearly shows that the facts surrounding the
movement and restraint of the victim in this case shows
that there is more than ample evidence by which any
reasonable jury could conclude that ‘‘that the restraint
was not merely incidental to the commission of some
other, separate crime.’’ It is expressly found that any
reasonable jurist, and in particular, the trial judge in
the petitioner’s criminal case, would agree with that
assessment and would deny a motion for a finding of
not guilty and allow the factual issue to go to the jury.
Consequently, the petitioner has failed to show the sec-
ond prong of Strickland, that is, prejudice, and relief
shall not be forthcoming.7
          CLAIM OF ACTUAL INNOCENCE
   In count one of the amended petition, the petitioner
has alleged a claim of actual innocence. This claim shall
fail as well for the following reasons. The Supreme
Court in Summerville discussed the differences
between a petition for a new trial, which has a three
year statute of limitations, except when premised on
newly discovered DNA evidence, and a petition for a
writ of habeas corpus, for which there is no applicable
statute of limitations.8 Summerville v. Warden, supra,
229 Conn. 426–27; General Statutes § 52-582.9
   ‘‘Principally because of the absence of any statute of
limitations governing the writ of habeas corpus . . .
the standards governing the issuance of the writ based
on a claim of actual innocence are not, however, neces-
sarily the same as those governing a petition for a new
trial based upon newly discovered evidence. Employing
the same standard for both petitions would ignore the
legislative determination embodied in the statute of
limitations. The principal purpose of the writ of habeas
corpus is to serve as a bulwark against violations of
fundamental fairness. . . . Whether there has been
such a violation must be determined, not only with
regard to the petitioner’s claim, but also with regard to
the effect of the issuance of the writ on the strong
interest in the finality of judgments . . . and the other
interests embodied in the statute of limitations. . . .
  ‘‘[The Supreme Court has], therefore, imposed on
a habeas corpus petitioner certain requirements that
reflect these policy interests. For example, [it has]
imposed a heavy burden of proof on the petitioner to
establish that he is entitled to a new trial. . . . [The
Supreme Court has] also adopted the ‘cause and preju-
dice’ standard for the reviewability in a habeas corpus
proceeding of constitutional claims not adequately pre-
served at trial . . . .
   ‘‘Those requirements, which stem largely from the
fact that a habeas corpus petition may properly be
brought at any time, rest in significant part on the costs
to the public interests that are incurred when the state
is required to retry a defendant many years after the
events in question. . . . The wholesale transplanting
of the petition for a new trial standard to a habeas
corpus petition based on a claim of actual innocence
would not give due respect to those considerations.
The petitioner who thinks that there is newly discovered
evidence sufficient to overturn his verdict would have
no incentive to bring that evidence before the court
within the three year limitations period, and there
would be no consequence of his failure to do so.10 . . .
Thus, just as a habeas corpus petition may not be
employed as a substitute for a direct appeal . . . a
habeas corpus petition is not a surrogate for a time
barred petition for a new trial.’’ (Citations omitted; foot-
note omitted.) Summerville v. Warden, supra, 229
Conn. 427–29.
  Several years after Summerville, the Supreme Court
decided Miller v. Commissioner of Correction, 242
Conn. 745, 700 A.2d 1108 (1997). Miller ‘‘present[ed]
a question that [the court had] found unnecessary to
answer in Summerville, namely, what is the legal stan-
dard [of persuasion] that must be met by a habeas
corpus petitioner claiming actual innocence in order to
gain a new trial at which his guilt or innocence will
again be determined?’’ (Internal quotation marks omit-
ted.) Id., 746.
   The Miller court began its consideration of the stan-
dard of proof with the following remark: ‘‘In doing so,
we assume without deciding that the petitioner’s claim
must be based on ‘new evidence,’ that is, evidence that
is not cumulative, was not available to the petitioner
at his criminal trial, and could not have been discovered
by him at that time through due diligence. See Sum-
merville v. Warden, supra, 229 Conn. 426. We make
this assumption for the purposes of the present case
because: (1) the habeas court applied that requirement
to the petitioner in this case, and determined that the
petitioner’s evidence met that requirement; (2) the peti-
tioner agreed that this should be one of the components
of his burden; and (3) the parties do not dispute that the
petitioner’s evidence is newly discovered. We recently
certified for appeal the specific question of whether a
freestanding claim of actual innocence must be based
on new evidence. Williams v. Commissioner of Correc-
tion, 240 Conn. 547, 548, 692 A.2d 1231 (1997). We
subsequently dismissed that certified appeal as having
been improvidently granted, however, because the peti-
tioner in that case also agreed with the ‘new evidence’
requirement. Id., 548–49.’’ (Emphasis omitted.) Miller
v. Commissioner of Correction, supra, 242 Conn.
789–90 n.29.
   Now, more than a decade after deciding Miller, the
Supreme Court still has not had occasion to address
the ‘new evidence’ requirement. Even as recently as
2009, the court observed that it had ‘‘stated [in Clarke
v. Commissioner of Correction, 249 Conn. 350, 358,
732 A.2d 754 (1999)], that whether a claim of actual
innocence must be based on newly discovered evidence
is still an open question in our habeas jurisprudence.
In the present case, both parties and the habeas court
acknowledge, explicitly and implicitly, that our appel-
late courts do require a claim of actual innocence to
be based on newly discovered evidence. See Johnson
v. Commissioner of Correction, 101 Conn. App. 465,
470–71, 922 A.2d 221 (2007). Because the respondent
does not challenge the petitioner’s claim on those
grounds and the habeas court proceeded as if the evi-
dence was newly discovered, we are not called upon
to resolve this question. See Miller v. Commissioner
of Correction, supra, 242 Conn. 789 n.29 (assuming,
without deciding, that actual innocence claim must be
based on new evidence).’’ Mozell v. Commissioner of
Correction, 291 Conn. 62, 81 n.10, 967 A.2d 41 (2009).
  The Appellate Court, unlike our Supreme Court, has
held that newly discovered evidence is necessary to
pursue an actual innocence claim via a habeas corpus
petition. ‘‘[A] claim of actual innocence must be based
on newly discovered evidence. Clarke v. Commissioner
of Correction, 43 Conn. App. 374, 379, 682 A.2d 618
(1996), appeal dismissed, 249 Conn. 350, 732 A.2d 754
(1999). [A] writ of habeas corpus cannot issue unless
the petitioner first demonstrates that the evidence put
forth in support of his claim of actual innocence is
newly discovered. Williams v. Commissioner of Cor-
rection, 41 Conn. App. 515, 530, 677 A.2d 1 (1996),
appeal dismissed, 240 Conn. 547, 692 A.2d 1231 (1997).
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. . . . Batts v. Commissioner of Cor-
rection, [85 Conn. App. 723, 726–27, 858 A.2d 856, cert.
denied, 272 Conn. 907, 863 A.2d 697 (2004)].’’ (Internal
quotation marks omitted.) Johnson v. Commissioner
of Correction, supra, 101 Conn. App. 470. Consequently,
even though the final resolution of the newly discovered
evidence standard has yet to be addressed by the
Supreme Court, it is beyond argument that insofar as
any Superior Court considering a [claim] of actual inno-
cence in a habeas petition, the matter is closed. The
Appellate Court has spoken, and that precedent is bind-
ing in Superior Court unless and until changed by the
Supreme Court.
   To summarize, then, the newly discovered evidence
requirement is satisfied if the evidence is: (1) not cumu-
lative; (2) was not available to the petitioner at the
time of his criminal trial; and (3) could not have been
discovered by him at that time through the exercise of
due diligence.
   The newly discovered evidence in these petitions that
has been alleged by the petitioner consists entirely of
the testimony of one Ian Wright, currently an inmate
in the Department of Correction and a self-styled ‘‘jail-
house lawyer.’’ Mr. Wright, a convicted felon, testified
in the instant habeas case and reported that, about one
year ago, he engaged inmate Stephen ‘‘Sticky’’ Nelson
in conversation and that Mr. Nelson admitted he had
lied in his testimony before the petitioner’s trial. Putting
aside the obvious credibility issues inherent with this
testimony, it is arguable that the testimony of Mr. Wright
was not available to the petitioner at his trial and, since
the alleged conversation took place some four years
after the conclusion of the petitioner’s trial, could not
have been discovered by him at that time even with the
exercise of due diligence. However, the evidence is
certainly cumulative and cannot be considered newly
discovered.
  The discrediting of the testimony of Mr. Nelson was
a key component of the trial strategy of trial defense
counsel, and he did so in a highly professional manner.
Indeed, the cross-examination went a long way to dis-
credit the testimony of Mr. Nelson at trial. Notwith-
standing, the petitioner was convicted in large part
because there was DNA evidence linking him to the
crime, cell phone records linking him to the crime and
his evasive answers given to the police as to his location
at the time of the crime. Had inmate Wright been avail-
able for trial and testified as he did in the habeas trial,
his testimony, even if deemed credible by the jury (a
most unlikely event, given everything surrounding it)
would not have been likely to have swayed the jury to
an acquittal. Moreover, while inmate Wright’s hearsay
testimony was admissible under § 8-6 (4) of the Con-
necticut Code of Evidence at the habeas trial only
because inmate Nelson exercised his fifth amendment
right to silence, Nelson did testify at the petitioner’s
criminal trial, so Wright’s testimony would not have
been admissible. Consequently, the ‘‘evidence’’ would
have been cumulative, and the actual innocence claim
falls on that basis.
  As a result of all of the foregoing, the petition for
a writ of habeas corpus is, therefore, denied and the
petition dismissed.
   * Affirmed. Thompson v. Commissioner of Correction, 172 Conn. App.
139,       A.3d      (2017).
   1
     State v. Thompson, 128 Conn. App. 296, 298–99, 17 A.3d 488 (2011), cert.
denied, 303 Conn. 928, 36 A.3d 241 (2012).
   2
     This may seem to be difficult for a layman to accept, given the oft-
repeated phrase that ‘‘one is innocent until proven guilty.’’ However, in a
habeas proceeding, the petitioner is not innocent and has, in fact, been
already proven guilty beyond all reasonable doubt. Moreover, a habeas
petitioner has more likely than not had the opportunity to have at least one
appellate court review the case to determine if there have been any errors
of law that were made by the trial court. Given that a habeas petition is
often called the ‘‘court of last resort,’’ it should not be unexpected that the
burden of showing an irregularity must now rest with the petitioner.
   3
     Edward I reigned in England in the late thirteenth century A.D.
   4
     This is a particularly important consideration in the instant case. The
petitioner has had his case reviewed by both the state Appellate and Supreme
Courts. [State v. Thompson, 128 Conn. App. 296, 17 A.3d 488 (2011), cert.
denied, 303 Conn. 928, 36 A.3d 241 (2012).] The majority of the evidence
presented to the court during the habeas trial revolved around what took
place on the evening of [August 10, 2004]. The petitioner was, in essence,
attempting to relitigate matters that have been previously litigated and
affirmed on appeal.
   5
     ‘‘The requirement that guilt of a criminal charge be established by proof
beyond a reasonable doubt dates at least from our early years as a Nation. The
demand for a higher degree of persuasion in criminal cases was recurrently
expressed from ancient times, [though] its crystallization into the formula
beyond a reasonable doubt seems to have occurred as late as 1798. It is
now accepted in common law jurisdictions as the measure of persuasion
by which the prosecution must convince the trier of all the essential elements
of guilt.’’ (Internal quotation marks omitted.) In re Winship, supra, 397
U.S. 361.
   6
     There is a very recent Appellate Court decision, Hinds v. Commissioner
of Correction, 151 Conn. App. 837, 97 A.3d 986 (Official Release Date: August
5, 2014), that affirmed a decision by a habeas court that ordered a new trial
for a petitioner where the trial court failed to give a Salamon instruction
to the jury. It is this key difference between the instant case and the Hinds
case that does not require this court to follow Hinds.
   7
     The same line of reasoning shall be applied to the argument that the
petitioner’s appellate counsel was ineffective, thereby causing count three
to fail.
   8
     Although there is a sort of de facto statute of limitations in that a habeas
petitioner must be ‘‘in the custody of the commissioner’’ in order for the
court to have jurisdiction. See Lebron v. Commissioner of Correction, 274
Conn. 507, 876 A.2d 1178 (2005).
   9
     General Statutes § 52-582 mandates that: ‘‘No petition for a new trial in
any civil or criminal proceeding shall be brought but within three years
next after the rendition of the judgment or decree complained of, except
not discoverable or available at the time of the original trial may be brought
at any time after the discovery or availability of such new evidence.’’
   Interestingly, the first clause does not mention newly discovered evidence.
   10
      Accordingly, the requirement in actual innocence claims raised via
habeas corpus of ‘newly discovered’ evidence may be viewed as another
requirement that reflects the same policy reasons. Section 52-582 does not
state that non-DNA based claims must be premised on newly discovered
evidence. Thus, the petition for a new trial with the three year statute of
limitations does not require newly discovered evidence; the petition for a
writ of habeas corpus with no statute of limitations requires newly discov-
ered evidence.
