
    Gene NEWLAND v. COMMISSIONER OF CORRECTION.
    No. 19381.
    Supreme Court of Connecticut.
    Argued Oct. 7, 2015. Decided Aug. 30, 2016.
    Michael J. Proto, assistant state's attorney, with whom, on the brief, was Patricia M. Froehlich, state's attorney, for the appellant (respondent).
    Stephen Lebedevitch, with whom were James J. Ruane, Bridgeport, and, on the brief, Grayson Colt Holmes and Stephanie M. O'Neil, for the appellee (petitioner).
    ROGERS, C.J., and PALMER, ZARELLA, EVELEIGH, McDONALD, ESPINOSA and ROBINSON, Js.
   ZARELLA, J.

This certified appeal involves two related claims raised by the petitioner, Gene Newland, for the first time during postconviction proceedings, namely, whether the trial court conducted an inadequate canvass prior to finding that he waived his right to counsel under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution, and whether the trial court erroneously concluded that the waiver was knowing, intelligent and voluntary. The respondent, the Commissioner of Correction, appeals from the judgment of the Appellate Court, which affirmed the judgment of the habeas court granting the petitioner a new trial on the ground that the Division of Public Defender Services (public defender's office) had erroneously determined that he was ineligible for the assistance of counsel. The respondent contends that the Appellate Court incorrectly concluded that the petitioner had raised a claim of public defender error in the habeas court and that the claim was not procedurally defaulted because the cause and prejudice necessary to excuse procedural default is presumed when the right to counsel has been violated. We agree with the respondent that the petitioner did not advance a claim of public defender error in the habeas court but, rather, claimed that the trial court had conducted an inadequate canvass and erroneously concluded that he knowingly, intelligently and voluntarily waived his right to counsel. We thus reverse the judgment of the Appellate Court and direct that court to remand the case to the habeas court to address these claims. We decline to consider whether the cause and prejudice necessary to excuse procedural default may be presumed in the context of the petitioner's claims of trial court error because the habeas court and the Appellate Court did not conclude that default was excused with respect to those claims, and, accordingly, the issue is not properly before this court.

I

FACTS AND PROCEDURAL HISTORY

The record reveals the following undisputed facts and procedural history. In 2007, the petitioner was charged with one count of sexual assault in the first degree in violation of General Statutes § 53a-70 (a)(2) and one count of risk of injury to a child in violation of General Statutes (Rev. to 2003) § 53-21(a)(2) in connection with an incident that occurred in 2003. At his arraignment in the judicial district of Windham in May, 2007, Assistant Public Defender Ernest Green, Jr., appeared on behalf of the petitioner for bond purposes only. The petitioner subsequently posted $1000 on a $10,000 bond with the partial help of a loan from a friend and was released from custody. At the next pretrial hearing in June, 2007, the petitioner appeared without counsel. The assistant state's attorney (prosecutor) informed the court that the petitioner had applied for a public defender but had been deemed ineligible. In accordance with the recommendation of the public defender's office, as represented by the prosecutor, the trial court continued the case for six weeks to allow the petitioner to retain private counsel.

Between July, 2007, and December, 2008, the petitioner appeared as a self-represented party for at least twelve pretrial scheduling hearings. At more than one of these hearings, the petitioner informed the court that the public defender's office had deemed him ineligible for appointed counsel due to his ownership of property, the house that his "family" was living in, but that he nonetheless was having difficulty securing an attorney because he could not afford to hire one. At one hearing, the petitioner indicated that he was in the process of trying to refinance his property to obtain the funds. The petitioner's case was repeatedly continued to allow him more time to secure counsel. No representative from the public defender's office ever appeared in court to address the denial of services.

At a hearing in October, 2008, the petitioner indicated that his situation had worsened because he had lost one of his jobs due to a lack of transportation and because his house was in foreclosure. He asked the court if someone could assist him in preparing his case. In response, the court stated: "I can't tell somebody to do that for you. You either qualify for the public defender services or you don't, and that's a determination made by them independent[ly] of the court." The court suggested that the petitioner reapply for a public defender if his financial situation worsened since he first applied.

At a December, 2008 hearing, the trial court informed the petitioner that it was scheduling the petitioner's case for a jury trial due to the fact that nearly two years had elapsed since his arrest. The court agreed not to put the case on the jury list until at least March, 2009, in order to allow the petitioner more time to retain counsel. The court warned the petitioner that trial would proceed regardless of whether he secured counsel at that time.

In April, 2009, the petitioner appeared as a self-represented party to commence jury selection. At the outset, the court stated that it assumed that the petitioner had had plenty of time by this point to retain counsel. In response, the petitioner indicated that his efforts had been unsuccessful because he could not afford the minimum payment that counsel demanded, he was facing foreclosure on his property, and he had twice been deemed ineligible for public defender services. He indicated that he had just learned that he might be able to "put some kind of attachment to the property for a lawyer, so it's [going to] hopefully aid me in getting counsel because I [did not have] any idea that I could do that before...." The following exchange then ensued:

"The Court: But you have been advised over the past two years on different occasions ... of your right to have an attorney represent you?

"[The Petitioner]: Yes, I have.

"The Court: Okay. And implicit in that right is the right to a public defender if you couldn't afford private counsel, but you say you've tried twice, and you've been deemed not to be qualified.

"[The Petitioner]: Due to the fact I own property. As soon as you ... state that you own property or have a mortgage on property, you're automatically disqualified for a public defender, they told me. So, because I have property in my name, I'm not qualified for a public defender.

"The Court: So implicit in what you're telling me is you're waiving your right to have counsel represent you.

"[The Petitioner]: At present, yes. Unfortunately, I have no other choice.

"The Court: All right. I'm going to ask you some questions to ensure that you know exactly what you're getting into."

In addition to addressing the petitioner with regard to matters required for a proper waiver of counsel under Practice Book § 44-3, the court inquired about the petitioner's circumstances. The petitioner informed the court that he was thirty-seven years old and had a tenth grade education. He also explained that he had limited income and no family members with means to assist him. He indicated that he was not familiar with the rules of criminal procedure but that he had been given the Code of Evidence and some basic advice by Assistant Public Defender Green, and hoped to become familiar with these rules and procedures before trial. In response to the question of whether he felt that he had the training, experience and skill to represent himself, he stated: "Honestly, no, I don't feel I possess that training.... But I'm at the point where I have no other choice." When the court asked the petitioner whether he thought he had been given a reasonable time in which to seek private counsel, he responded: "Yes, I have. I've done what I can with my means, unfortunately." An exchange then ensued about the petitioner's efforts to obtain counsel. The court noted that it had never had a defendant represent himself with charges as serious as those facing the petitioner but explained that justice demands that at some point the state have the right to try its case. At the conclusion of its canvass, the court stated: "I'm going to make a finding under the circumstances that the [petitioner] has waived his right to be represented by counsel. I'm disappointed that the court is asked to make this finding, but I don't see any alternative." The trial court made no express finding regarding whether the petitioner had the financial means to hire counsel or whether he had intentionally engaged in dilatory conduct. See, e.g., United States v. Bauer, 956 F.2d 693, 695 (7th Cir.) ("the combination of ability to pay for counsel plus refusal to do so does waive the right to counsel" [emphasis in original] ), cert. denied, 506 U.S. 882, 113 S.Ct. 234, 121 L.Ed.2d 169 (1992) ; see also Fischetti v. Johnson, 384 F.3d 140, 145 (3d Cir.2004) ("[a] defendant's right to counsel is not without limit and cannot be the justification for inordinate delay or manipulation of the appointment system" ); United States v. Mitchell, 777 F.2d 248, 256 (5th Cir.1985) ("The right to choose counsel may not be subverted to obstruct the orderly procedure in the courts or to interfere with the fair administration of justice. It is a right and a proper tool of the defendant; it cannot be used merely as a manipulative monkey wrench." [Internal quotation marks omitted.] ), cert. denied sub nom. Prado v. United States, 475 U.S. 1096, 106 S.Ct. 1493, 89 L.Ed.2d 895 (1986), and cert. denied, 476 U.S. 1184, 106 S.Ct. 2921, 91 L.Ed.2d 549 (1986). The court did not appoint standby counsel.

Following a jury trial, the defendant was found guilty of both the sexual assault and risk of injury counts. The trial court rendered judgment in accordance with the verdict and imposed a total effective sentence of ten years imprisonment followed by eight years of special parole, with conditions including registration as a sexual offender. The petitioner did not appeal from the judgment of conviction.

Thereafter, the petitioner, as a self-represented party, filed a petition for a writ of habeas corpus, alleging that he had wrongfully been denied counsel. The petitioner was referred to the public defender's office, which determined that the petitioner was indigent. Counsel filed an amended two count petition, claiming that the trial court had (1) inadequately canvassed the petitioner prior to finding that he had waived his right to counsel, and (2) incorrectly concluded that the petitioner knowingly, intelligently and voluntarily waived his right to counsel. The amended petition alleged, inter alia, that the claims were not procedurally defaulted because cause and prejudice is presumed when a petitioner's right to counsel has been violated.

The respondent thereafter filed a return asserting an affirmative defense of procedural default as to both counts, citing the petitioner's failure to raise these claims before the trial court and his failure to appeal from the judgment of conviction. The respondent then filed a motion for summary judgment on the basis of that defense, claiming that no presumption of cause and prejudice applies to claims of an inadequate waiver canvass. The habeas court denied the motion without prejudice.

During the evidentiary hearing on the petition, the petitioner introduced the transcripts of the criminal proceedings without objection. When the petitioner sought to introduce evidence regarding his bank account balances between June, 2007, and April, 2009, his efforts to obtain counsel, and the procedures for determining eligibility for public defender services, the respondent objected. The respondent claimed that this evidence was irrelevant because the petitioner had not advanced a challenge to the determination of the public defender's office that he was not indigent. The petitioner replied that the evidence was relevant to the claims that he had raised in his petition. The habeas court overruled the objection without prejudice to being renewed in the posttrial briefs. Thereafter, the petitioner testified that he had a minimal or negative bank account balance during this period, which he supported with bank account statements, and that he was working a low wage job in April, 2009. He testified that he had made numerous, unsuccessful efforts to obtain private counsel after he had been denied a public defender, and that no one had informed him that he had the right to appeal from the eligibility decisions of the public defender's office. The petitioner acknowledged that he had approximately $50,000 in equity in his property, based on the property's appraised value when he refinanced it in January, 2007, and the outstanding mortgage on the property. He offered evidence to establish that an action to foreclose the mortgage had been commenced in July, 2008.

The petitioner also proffered testimony from Ramon J. Canning, the Public Defender for the judicial district of Windham, where the petitioner filed his applications, and Brian S. Carlow, the Deputy Chief Public Defender in the Office of the Chief Public Defender. Neither had any knowledge of the petitioner's applications, which had been destroyed, and, therefore, they only offered testimony regarding application procedures and eligibility criteria generally. Although there was no dispute that, at the time of the waiver canvass in April, 2009, the petitioner would have met the income eligibility guidelines for public defender services on the basis of the income he reported to the trial court and the seriousness of the charges, there were some inconsistencies in Canning's and Carlow's testimony. Canning testified that equity in property could be a disqualifying factor, which would not be affected by a pending foreclosure because a property owner might still have considerable equity despite the pending foreclosure. By contrast, Carlow assumed that the equity in a property would not be readily accessible if the property was in foreclosure, barring unusual circumstances, and, therefore, property subject to foreclosure generally would not be a factor in assessing eligibility. Carlow further testified that, in the late 2000s, property ownership would not have been given significant weight in disqualifying an income eligible applicant because he assumed that relatively few people would have been able to easily access any equity due to the state of the economy at that time. In addition, Carlow testified that the eligibility decision of the public defender's office is only a recommendation, with the trial court having ultimate authority to decide whether a defendant is eligible, whereas Canning indicated that the eligibility decision is final unless challenged.

The habeas court thereafter granted the petition, concluding that the petitioner's sixth amendment right to counsel had been violated. In support of its decision, the habeas court made the following findings. At the time of his trial, the petitioner was making between $300 and $350 per week. He had no available funds in any bank accounts. He owned a residential property that was subject to a mortgage in the amount of approximately $117,000 and that had a fair market value of $168,000 prior to his 2007 arrest. As of July, 2008, and during the petitioner's criminal trial, the petitioner's property was subject to a foreclosure action based on his default on the mortgage. The petitioner had easily met the income eligibility requirements set by the Public Defender Services Commission for a serious felony charge and, therefore, was presumed to be eligible for services. The public defender's office erred in denying the petitioner's application on the basis of his property ownership because the equity was limited and not readily accessible, and because the property was subject to an ongoing foreclosure action.

With respect to the respondent's affirmative defense, the habeas court concluded that a claim of public defender error was not procedurally defaulted. It relied on Dennis v. Commissioner of Correction, 134 Conn.App. 520, 532, 536, 39 A.3d 799 (2012), for the proposition that a denial of counsel establishes the cause and prejudice necessary to excuse default. The habeas court further reasoned that, because neither the public defender's office nor the trial court had informed the petitioner that he had a right to appeal from the denial of his applications for public defender services, and because the petitioner had explained his financial situation to the trial court, he was not defaulted for failure to appeal from the denial of his applications to the trial court.

With respect to the merits of the petitioner's claim, the habeas court determined that "the correctness of the public defender's indigency determination goes directly to the petitioner's claim that he did not knowingly, intelligently and voluntarily waive his right to counsel and, thus, is properly before the court." Ultimately, the court concluded: "[T]he petitioner did not knowingly, intelligently and voluntarily waive his right to counsel because he mistakenly believed that he did not qualify for the public defender's services and only acquiesced to representing himself because he could not afford or otherwise retain private counsel. Had the petitioner been properly informed of his right to the services of a public defender, he would have accepted those services. Thus, but for the public defender's erroneous eligibility determination, the petitioner would not have implicitly or otherwise waived his right to counsel, and the trial court would not have accepted the implicit waiver had it known of the petitioner's eligibility." (Internal quotation marks omitted.) The habeas court rendered judgment granting the habeas petition, vacated the petitioner's conviction, and ordered that he be granted a new trial.

The respondent appealed from the judgment of the habeas court to the Appellate Court. On appeal, the respondent claimed that (1) the habeas court improperly denied his motion for summary judgment because the cause and prejudice necessary to overcome procedural default is not presumed in a claim that the trial court's canvass and determination of waiver were improper, (2) the habeas court improperly granted the petition on the basis of a claim that had not been raised in the petition, and (3) even if properly considered, the petitioner had not met his burden of proving that he had been deprived of counsel due to an error by the public defender's office. See Newland v. Commissioner of Correction, 151 Conn.App. 134, 146 and n. 1, 150, 152, 94 A.3d 676 (2014). The Appellate Court affirmed the judgment of the habeas court; id., at 153, 94 A.3d 676 ; relying on reasoning largely consistent with that of the habeas court. See id., at 146-53, 94 A.3d 676. The Appellate Court summarily rejected the respondent's contention that the petitioner's claim was procedurally defaulted by virtue of the petitioner's failure to appeal from the judgment of conviction, reasoning: "[B]ecause our resolution of the respondent's claim of procedural default is based upon the petitioner's claim of a violation of his right to counsel and whether cause and prejudice are presumed in the presence of such a violation, the procedural mechanism by which the petitioner perhaps should have raised his claims is immaterial." Id., at 146-47 n. 1, 94 A.3d 676.

We thereafter granted the respondent's petition for certification to appeal, limited to two issues: First, "[d]id the Appellate Court properly affirm the habeas court's determination that 'cause and prejudice' [are] presumed in a claim of trial court error?" Newland v. Commissioner of Correction, 314 Conn. 916, 917, 100 A.3d 406 (2014). Second, "[d]id the Appellate Court properly affirm the habeas court's determination that a claim of public defender error was properly before the habeas court, and, if so, did the Appellate Court properly determine that the habeas court correctly determined that the petitioner had met his burden of proof?" Id.

In resolving the respondent's claims, we are mindful that "[t]he underlying historical facts found by the habeas court may not be disturbed unless the findings were clearly erroneous.... Historical facts constitute a recital of external events and the credibility of their narrators.... Questions of law and mixed questions of law and fact [however, are subject to] plenary review." (Internal quotation marks omitted.) Crawford v. Commissioner of Correction, 294 Conn. 165, 174, 982 A.2d 620 (2009). Except as otherwise noted, the issues in the present case are subject to plenary review.

II

NATURE OF THE PETITIONER'S HABEAS CLAIMS

Ordinarily, our first task would be to consider whether the habeas court properly concluded that procedural default did not serve to bar the petitioner's claims. In the present case, however, the habeas court determined that there was no procedural default only after concluding that the petitioner had alleged public defender error. We thus begin with the respondent's contention that the petitioner did not advance a claim of public defender error. We conclude, following a close examination of the record, that the petitioner did not claim public defender error. Accordingly, the Appellate Court improperly upheld the habeas court's determination that a claim of public defender error was not procedurally defaulted.

"It is well settled that [t]he petition for a writ of habeas corpus is essentially a pleading and, as such, it should conform generally to a complaint in a civil action.... It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of his complaint.... While the habeas court has considerable discretion to frame a remedy that is commensurate with the scope of the established constitutional violations ... it does not have the discretion to look beyond the pleadings and trial evidence to decide claims not raised.... The purpose of the [petition] is to put the [respondent] on notice of the claims made, to limit the issues to be decided, and to prevent surprise.... [T]he [petition] must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded, and do substantial justice between the parties." (Citation omitted; internal quotation marks omitted.) Lebron v. Commissioner of Correction, 274 Conn. 507, 519-20, 876 A.2d 1178 (2005), overruled in part on other grounds by State v. Elson, 311 Conn. 726, 91 A.3d 862 (2014). In the present case, the habeas pleadings, the petitioner's filings in the habeas court, the respondent's procedural default defense and the parties' arguments at the evidentiary hearing all support the conclusion that the petitioner alleged error by the trial court and not by the public defender's office.

The petitioner's two count amended habeas petition alleged that (1) "[t]he trial court conducted an inadequate canvass of [the] petitioner prior to finding that [the] petitioner had waived his right to counsel," and (2) "[t]he trial court erroneously concluded that [the] petitioner had knowingly and intelligently waived his right to counsel." The amended petition also alleged that these errors occurred after the petitioner was twice denied access to the services of a public defender and before he was able to find private counsel. The pleadings contained no allegation that the decision of the public defender's office was incorrect or that the petitioner was indigent under General Statutes § 51-297, and the petitioner never attempted to amend his petition to include such allegations. See Practice Book § 23-32 ("The [habeas] petitioner may amend the petition at any time prior to the filing of the return. Following the return, any pleading may be amended with leave of the judicial authority for good cause shown."); see also Practice Book § 10-62 ("[i]n all cases of any material variance between allegation and proof, an amendment may be permitted at any stage of the trial"). Furthermore, because the petitioner did not allege public defender error, the respondent's return alleged procedural default based on the petitioner's failure to appeal the trial court's canvass and waiver determination to the Appellate Court, and not because he failed to appeal to the trial court from the eligibility determinations of the public defender's office under § 51-297(g).

Thereafter, the petitioner claimed in his pretrial brief to the habeas court that the canvass was inadequate and that "the [trial] court erroneously concluded that [he] had waived his right to counsel." In support of these claims, the petitioner specifically contended, inter alia, that the trial court had failed to obtain sufficient information on the record to determine that he knowingly, intelligently and voluntarily waived his right to counsel and that the court's determination of waiver was unreasonable in the absence of a clear and unequivocal request by the petitioner to represent himself.

Similarly, at the evidentiary hearing, the petitioner's counsel not only reiterated the petitioner's claims of trial court error but repeatedly denied that the petitioner was advancing a claim that the public defender's office had made an improper indigency determination leading to the denial of his application for trial counsel. When counsel for the respondent objected on relevancy grounds to the petitioner's testimony regarding his financial position at the time he first applied for the assistance of a public defender, the petitioner's counsel explained: "There are two counts in the petition. The first, as opposing counsel has stated, is an inadequate canvass. The second count, however, is that the court erroneously concluded that the petitioner waived his right [to counsel] knowingly and voluntarily. This evidence we're using to show that the petitioner did not waive his right to counsel, that he, in fact, could not afford private counsel after [he] was deemed ineligible by the public defender. It's highly relevant to the issue of voluntariness, and it shows that the petitioner did not have the means to hire counsel after he was denied access to the public defender, and, therefore, when he was forced to represent himself [at] trial, it was because he couldn't get another attorney." (Emphasis added.)

When the petitioner continued to testify regarding his financial status at the time he filed his original application, the respondent's counsel again objected, arguing that the financial testimony was relevant only to the indigency determination, which should have been considered in a different forum. The petitioner's counsel disagreed, explaining as follows: "[The petitioner's ] attempts to find counsel ... don't go to whether the public defender determined he was eligible or ineligible. We're just going into his attempts to find counsel, which again [go ] to the issue of voluntariness and do not really weigh on whether he was eligible or not. I mean it does sort of, you know, tangentially, but, specifically, his attempts to find counsel go to ... the issue of voluntariness and not to whether the public defender is-eligible or ineligible. " (Emphasis added.) The respondent's counsel then cited case law describing the criteria for determining whether there had been a knowing, intelligent and voluntary waiver and argued that the petitioner's financial testimony had no bearing on the trial court's waiver determination because it did not relate to the applicable criteria. The petitioner's counsel countered that the testimony was relevant because the petitioner's economic circumstances and his continuing efforts to obtain counsel had a direct bearing on whether the trial court could have concluded, in light of its inadequate canvass, that he knowingly, intelligently and voluntarily waived his right to counsel.

The habeas court subsequently observed that the evidence introduced by the petitioner, which the court had allowed over the objection of the respondent's counsel, was primarily about what the public defender's office did or did not do, whereas the habeas petition was about what the trial court did or did not do. In response, the petitioner's counsel reminded the court that the petitioner's two claims related to the trial court's inadequate canvass and improper waiver determination and that the petitioner's alleged waiver had not been clear and unequivocal, as required by law. Following a lengthy discussion between the court and counsel concerning the petitioner's financial circumstances when he applied for public defender assistance and the effect of the ineligibility determination on his right to counsel, the petitioner's counsel repeated: "[O]ur argument ... is that to waive counsel, [it ] doesn't really matter if you're indigent or not; you have to make a clear, unequivocal waiver of that, and [the petitioner] did not make that clear, unequivocal waiver." (Emphasis added.) Counsel also stated: "[T]he standard is knowingly, voluntarily, and intelligently. I don't think that indigency is something that the court has to determine ...." (Emphasis added.)

The habeas court finally acknowledged that the petitioner had pleaded his case as "an attack on the ... voluntariness of the [waiver]" but asked the respondent's counsel what would happen if the trial court had acted properly but the public defender's office had made an improper eligibility determination. The respondent's counsel replied that, because the petitioner had never made that claim, he was unprepared to address it. The court then asked him to address whether the court could consider such a claim, as well as its merits, in his posttrial brief, since the petitioner "didn't plead it ...."

The respondent stated at the outset of his posttrial brief that he first would argue that the petitioner's claims were barred by procedural default and then would argue the merits of the claims the petitioner actually had raised, "specifically, claims of error on the part of the trial court." The respondent also stated that he would address the claim of public defender error that had not been raised in the amended petition but in furtherance of which the petitioner had been allowed to present evidence over the objections of the respondent's counsel at the habeas hearing and to which the respondent continued to object. The respondent added that he would end his brief by addressing the specific questions posed by the habeas court.

On the issue of public defender error, the respondent objected and separately moved to strike all materials attached to or referenced in the petitioner's posttrial brief intended to support an argument that he was indigent at the time the public defender's office determined otherwise on the same relevancy grounds that the respondent's counsel had objected to similar evidence at the habeas hearing. The respondent also argued that these references constituted inadmissible hearsay that he had not been given an opportunity to challenge. In addition, the respondent argued that the evidence had closed when the parties rested their cases at the habeas hearing and that the petitioner had not sought permission to reopen the record for the admission of additional evidence. In response to the habeas court's query regarding its authority to decide a claim of public defender error, the respondent argued that the petitioner had raised no valid claim relating to the indigency determination by the public defender's office and that the petitioner's financial position thus was irrelevant and outside the scope of his habeas petition.

In his posttrial brief, the petitioner did not directly address whether the habeas court had the authority to consider a claim of public defender error but argued that there was no need for the habeas court to find that the petitioner was indigent in order to conclude that the trial court had conducted an inadequate canvass and made an improper waiver determination. The petitioner further argued that, even if there was such a need, the evidence introduced at the habeas hearing established his indigency at the time of the trial court's canvass and waiver determination. The petitioner concluded by citing case law from other jurisdictions and General Statutes § 51-296 for the proposition that a defendant has not necessarily waived his right to counsel when he is deemed ineligible for a public defender by the trial court and cannot afford the assistance of private counsel.

In addition to this direct and unequivocal evidence that the habeas court and the parties understood the petitioner's claims throughout the habeas proceedings as alleging trial court error, our review of the petitioner's presentation of his case also demonstrates that he did not intend to reconstruct the application process to prove public defender error in June, 2007, or in November or December, 2008, when his applications for a public defender were denied. Rather, he intended to prove trial court error in April, 2009, when the waiver canvass occurred. The petitioner did not offer copies of his applications for a public defender, testimony from the person in the public defender's office who denied either of his applications, or his own testimony regarding the interview conducted in connection with review of his financial affidavit. The petitioner did not attempt to fully reconstruct the substance of the applications; some significant information was never elicited, and other significant information was elicited only through cross-examination of the petitioner by the respondent's counsel and the habeas court's questions. For example, the petitioner offered evidence regarding his income in April, 2009, by way of his representation in the trial court waiver canvass but did not attempt to establish his income in 2007 and 2008. Although the petitioner offered evidence regarding his bank account balance in June, 2007, and December, 2008, through April, 2009, to prove that he lacked the funds to hire private counsel, information regarding the property (purchase price, fair market value, refinancing, etc.) and the posting of bond was elicited through questions by the respondent's counsel and the habeas court.

The evidence elicited regarding the procedures of the public defender's office also did not relate to the dates when the two applications were denied. The petitioner produced the 2009 public defender income guidelines; he did not produce the 2007 or 2008 guidelines. The petitioner likewise did not offer the policy manual for the public defender's office, which guides eligibility decisions, for any period. Canning offered only generalized testimony about public defender decision making and procedures, and nothing specific to 2007 or 2008. Carlow's testimony addressed 2007 through 2009 procedures generally, at the habeas court's request. The one hypothetical question regarding the petitioner's eligibility based solely on income and the criminal charges was framed in reference to April, 2009.

In sum, the record overwhelmingly supports the conclusion that the petitioner's theory of the case was grounded in trial court error and that the evidence elicited by counsel regarding the petitioner's trial testimony as to his limited income, his lack of financial resources, and his efforts to obtain counsel was intended to support his claims concerning the trial court's allegedly inadequate canvass and improper waiver determination. In addition, the petitioner's counsel specifically stated several times during the evidentiary hearing that the petitioner's testimony regarding his financial circumstances demonstrated that his waiver was not knowing, intelligent and voluntary, and that he had been compelled to represent himself in spite of his lack of adequate resources. Counsel thus suggested that, if the trial court had conducted a proper canvass, it would have recognized the petitioner's dire situation and appointed a public defender to represent him, or would have given him more time to obtain the resources he required to obtain private counsel. Accordingly, the habeas court ignored the pleadings and the petitioner's arguments during the habeas proceedings and redefined the petitioner's claims as alleging public defender error, and the Appellate Court improperly upheld the habeas court's conclusions that the petitioner's alleged claim of public defender error was not procedurally defaulted and that the erroneous ineligibility determination had resulted in a denial of his constitutional right to the assistance of counsel.

Thus, we must reverse the judgment of the Appellate Court and direct that court to remand the case to the habeas court for it to consider whether the petitioner's claims of trial court error, which he alleged in his original petition, are procedurally defaulted and, if they are not, to consider the claims on their merits. In addition, if counsel requests, the habeas court should consider allowing an amendment to the habeas petition to include a claim of public defender error, the issue the habeas court decided but the petitioner never alleged.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to remand the case to the habeas court for further proceedings in accordance with the preceding paragraph.

In this opinion ROGERS, C.J., and PALMER, EVELEIGH and ESPINOSA, Js., concurred.

McDONALD, J., with whom ROBINSON, J., joins, dissenting.

Prior to his criminal trial, the petitioner, Gene Newland, was a gas station employee making less than $10 per hour. His only asset was a piece of residential property with limited equity that was encumbered by a mortgage in default. Despite submitting two applications for legal representation to the public defender's office in Danielson, that office twice denied the petitioner its services because he owned real estate, even though there was no information to suggest his modest equity in the property was accessible to him while his mortgage was in default. Having been denied the services of a public defender, the petitioner attempted, over an extended period of time, to retain a private attorney who would agree to represent him against serious sexual assault charges. The petitioner repeatedly informed the trial court, over a period of two years, that he could not find an attorney who would represent him with the financial resources he had available to him. The trial court deemed the petitioner's inability to secure private counsel as an "implied waiver" of the petitioner's right to counsel, and compelled him to face the state's charges against him without legal representation. Applying an unduly rigid view of the record, the majority concludes that the petitioner was not entitled to habeas relief on the basis of public defender error.

This case reveals fundamental flaws in our procedures for protecting an indigent criminal defendant's constitutional right to appointed counsel. In light of those glaring shortcomings, I would exercise our supervisory authority to adopt a prophylactic procedural rule to ensure that such a fundamental miscarriage of justice does not recur.

I need not decide whether to apply this rule retrospectively to the present case, however, because I disagree with the majority's conclusion that public defender error was not a proper basis on which to grant habeas relief. Even under the majority's cramped view of the record, this case raises the essential question of whether it is preferable for our habeas courts to address a meritorious claim supported by the petitioner's evidence and filings, even if not squarely raised in the petition, as long as there is no prejudice to the respondent, the Commissioner of Correction, or whether those courts should ignore that basis for relief and leave that matter to a subsequent habeas petition alleging ineffective assistance of habeas counsel. Given the fundamental interests implicated and the substantial delay attendant to successive habeas proceedings, I believe that the former course of action is more jurisprudentially sound. The majority avoids these problems in the present case only because it remands the case to the habeas court to resolve the claims squarely raised in the petition and suggests the possibility of amending the petition to add a claim of public defender error. Such a remedy would not be available in most cases.

With respect to the merits of the claim of public defender error, I would conclude that the Appellate Court properly determined: (1) that the petitioner's claim was not barred by procedural default because, contrary to the respondent's position, the prejudice necessary to overcome such a default is presumed for claims of denial of counsel; and (2) that the evidence supported the habeas court's conclusion that the petitioner was entitled to prevail on this claim. Newland v. Commissioner of Correction, 151 Conn.App. 134, 148, 152-53, 94 A.3d 676 (2014).

I

I begin with the multiple procedural failures revealed by the record in this case. First, the petitioner was never informed that he had a statutory right to appeal the public defender's decisions deeming him ineligible for appointed counsel. See General Statutes § 51-297(g). As of the time of trial in this case, the Office of the Chief Public Defender had no formalized procedure for ensuring that such information was communicated to a defendant. The public defender's office in Danielson "almost universally," but not always, orally communicated that information.

Second, the trial court, Robaina, J., effectively informed the petitioner that he did not have a right to appeal the public defender's eligibility determination. The petitioner was told: "You either qualify for the public defender services or you don't, and that's a determination made by them independent of the court. " (Emphasis added.) There is currently no rule of practice or statute that requires the trial court to inform a defendant on the record of his statutory right to appeal such a determination to the trial court before which his case is pending. Nor is there any provision that prescribes either the procedure for initiating such an appeal or the obligations of the court in conducting such a proceeding. Nonetheless, the trial court's statement was at the very least misleading, and at best in direct conflict with the statute conferring a right of judicial review. See General Statutes § 51-297(g) ("[i]f the Chief Public Defender or anyone serving under the Chief Public Defender determines that an individual is not eligible to receive the services of a public defender under this chapter, the individual may appeal the decision to the court before which the individual's case is pending " [emphasis added] ).

Third, no one from the public defender's office ever offered, or was required by the trial court, to appear before the court to explain the basis of the denials, despite the numerous proceedings at which the petitioner told the court that he could not afford private counsel but had been deemed ineligible for a public defender. A survey of our appellate case law reveals no uniform procedure in such circumstances. In some cases, a representative from the local office of the public defender has appeared in court without being compelled to do so to explain on the record why the defendant was deemed ineligible, thus providing the defendant an opportunity to contest or explain the factual basis for the denial. See, e.g., State v. Henderson, 307 Conn. 533, 541-42, 55 A.3d 291 (2012) ; State v. Gamer, 152 Conn.App. 1, 10-11, 95 A.3d 1223 (2014) ; State v. Flemming, 116 Conn.App. 469, 476, 976 A.2d 37 (2009). In some cases, the defendant has been provided with a list of attorneys who might be available to provide representation. See, e.g., State v. Gamer, supra, at 11, 95 A.3d 1223 ; see also General Statutes § 51-291(11) (Chief Public Defender must "[m]aintain one or more lists of trial lawyers who may be available to represent persons in ... appropriate matters on a case by case basis, as needed, which lawyers shall be selected by a judge of the court before which the matter is to be heard"). In some cases, the court has appointed a public defender as standby counsel. See, e.g., State v. Henderson, supra, at 536, 55 A.3d 291. In others, like the present case, no such information or services was elicited or provided. Although I do not intend to suggest that any particular action is constitutionally mandated, the randomness of the process undermines the perception of fairness in our criminal justice system.

Given the fundamental interests at stake, however, I would exercise our supervisory powers over the administration of justice to adopt a prophylactic procedural rule: trial judges, upon being advised that a criminal defendant desires counsel and cannot afford a private attorney, but has been deemed ineligible for public defender services, would be precluded from trying that defendant as an unrepresented party unless a hearing is held at which: (1) a public defender appears before the trial court to explain why the defendant does not qualify for services under the applicable eligibility guidelines; (2) the defendant is apprised on the record of his statutory right under § 51-297(g) to an independent judicial determination as to his eligibility for appointed counsel; and (3) the trial court has conducted that independent review of the defendant's financial resources, either sua sponte or at the request of the defendant, to ascertain the defendant's financial ability to retain counsel. Only if the trial court finds that the defendant has the financial resources to retain competent private counsel at prevailing market rates in that judicial district should it decline to assign counsel to represent the defendant. The trial court, of course, retains discretion to hold against the defendant any failure to cooperate with that inquiry.

In my view, this procedure is consistent with the governing statutory scheme and the trial court's overarching responsibility to appoint counsel for indigent defendants under General Statutes § 51-296(a), insofar as the rules of practice are silent on this point and § 51-297(g) does not prescribe any particular procedure for the "appeal" to the trial court from an adverse indigency determination by the public defender. Needless to say, I do not object to any efforts by either the Rules Committee of the Superior Court or the legislature to effectuate this supervisory directive with greater specificity.

II

I need not decide whether this rule should be applied to the present case because, unlike the majority, I would conclude that the Appellate Court properly determined that the petitioner was entitled to prevail on a claim of public defender error. Nonetheless, the flaws revealed in this case that persuade me that we should adopt such a rule are relevant to my resolution of this issue.

I begin this part of this dissenting opinion by explaining why the habeas court properly could grant relief on a claim of public defender error. I then address why the habeas court properly rejected the respondent's affirmative defense of procedural default. Finally, I explain why the evidence was sufficient to support the claim of public defender error.

A

Public Defender Error As a Proper Basis for Relief

To place the record in this case in its proper context, we must be mindful of the underlying principles and parameters of our statutory scheme governing appointed counsel. "It is the duty of the state to provide adequate means to assure that no indigent accused lacks full opportunity for his defense.... The right to legal and financial assistance at state expense is, however, not unlimited. Defendants seeking such assistance must satisfy the court as to their indigency.... This has largely been accomplished through [public defender services] ... which has promulgated guidelines that are instructive as to the threshold indigency determination....

"[Section] 51-297(a) requires the public defender's office to investigate the financial status of an individual requesting representation on the basis of indigency, whereby the individual must, under oath or affirmation, set forth his liabilities, assets, income and sources thereof.... Upon a determination by the public defender that an individual is not eligible for its services, the individual may appeal the decision to the court before which his case is pending." (Internal quotation marks omitted.) State v. Henderson, supra, 307 Conn. at 540-41, 55 A.3d 291. "[Section] 51-296(a) requires that, [i]n any criminal action ... the court before which the matter is pending shall, if it determines after investigation by the public defender or his office that a defendant is indigent as defined under this chapter, designate a public defender ... to represent such indigent defendant ...." (Internal quotation marks omitted.) Id., at 541, 55 A.3d 291.

Under the chapter of our General Statutes governing public defender services, " 'indigent defendant' means ... a person who is formally charged with the commission of a crime punishable by imprisonment and who does not have the financial ability at the time of his request for representation to secure competent legal representation and to provide other necessary expenses of legal representation ...." (Emphasis added.) General Statutes § 51-297(f)(1). As our appellate courts noted long ago, "[i]ndigence must be conceived as a relative concept. An impoverished accused is not necessarily one totally devoid of means ... nor must one be absolutely destitute to enjoy the benefit of the statute.... The simple and direct characterization made by ... Justice Black in Gideon v. Wainwright, 372 U.S. 335, [344, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) ], is particularly apropos: an indigent is a person who is too poor to hire a lawyer." (Citations omitted; internal quotation marks omitted.) State v. Harris, 5 Conn.Cir.Ct. 313, 315, 250 A.2d 719 (App.Div.1968). Thus, a defendant who lacks the financial ability to secure competent legal representation when seeking the services of a public defender but is denied those services has wrongfully been denied such services.

In considering whether a claim of public defender error was properly before the habeas court in the present case, I am mindful that "the habeas court has considerable discretion to frame a remedy that is commensurate with the scope of the established constitutional violations ... [but] it does not have the discretion to look beyond the pleadings and trial evidence to decide claims not raised.... The purpose of the [petition] is to put the [respondent] on notice of the claims made, to limit the issues to be decided, and to prevent surprise.

... [T]he [petition] must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded, and do substantial justice between the parties." (Citation omitted; internal quotation marks omitted.) Lebron v. Commissioner of Correction, 274 Conn. 507, 519-20, 876 A.2d 1178 (2005), overruled on other grounds by State v. Elson, 311 Conn. 726, 747, 754, 91 A.3d 862 (2014).

It is conceded that the petition specifically alleged trial court error and not public defender error. Nonetheless, in a claim of trial court error for accepting an "implied waiver" based on an incorrect determination of the petitioner's eligibility for public defender services, the latter error would be subsumed under the former. Indeed, the entirety of the record-filings, evidence, and argument at the evidentiary hearing-clearly reflects a broader theory that implicates public defender error in relation to the claims in the petition. That theory was that the public defender's eligibility decision was improper because the petitioner was in fact indigent, but that he could prevail even without establishing that fact because his statements to the trial court: (1) should have compelled a conclusion that the petitioner did not voluntarily waive his right to counsel; and (2) should have prompted the trial court to conduct a further inquiry to determine whether the petitioner was entitled to appointed counsel. The petitioner, however, clearly argued that he was improperly denied appointed counsel. Specifically, in his reply to the respondent's return, in his pretrial brief, and in his opposition to the respondent's motion for summary judgment on the ground of procedural default, the petitioner asserted that he had been denied a public defender but nonetheless lacked sufficient funds to hire private counsel. Such statements are equivalent to the statutory definition of indigence, the standard that dictates whether the public defender's office and the court must assign a public defender. See General Statutes § 51-297(f)(1) (indigent defendant is one "who does not have the financial ability at the time of his request for representation to secure competent legal representation and to provide other necessary expenses of legal representation"); see also General Statutes §§ 51-296(a) and 51-297(a) (imposing duties on court and public defender to appoint counsel for indigent defendant). In his opposition to the respondent's motion for summary judgment, the petitioner unambiguously asserted that there was a material issue of fact as to whether he had voluntarily given up his right to counsel because he "was forced into this position, as he was inappropriately deemed ineligible for the assistance of a public defender. " (Emphasis added.)

In considering whether a claim is properly before the habeas court, we are obligated to consider whether it has been raised in such a way as to put the respondent on notice so that he can fairly and adequately respond to that claim. That requirement was met in the present case. The respondent had notice that this issue was implicated in the case and he has not established that the habeas court's shift in focus from trial error to public defender error prejudiced him. The respondent's return and motion for summary judgment argued that the petition must fail because the petitioner had not appealed from the public defender's decision or disputed the basis of that decision. As previously indicated, the petitioner's opposition to the motion unambiguously asserted that there had been public defender error. From the very commencement of the evidentiary hearing, the respondent's objections reflected his view that the petitioner's evidence related to the propriety of the public defender's decision, not the trial court's decision.

The only prejudice that the respondent claims arises from the habeas court's consideration of public defender error is that, if he had known that such a claim was being advanced, he would have alleged procedural default due to the petitioner's failure to appeal the public defender's decision. The habeas court, however, understood the respondent's affirmative defense of procedural default to extend to this claim, considered it, and squarely rejected it. Indeed, in response to the habeas court's directive that the respondent address in his posttrial brief whether a claim of public defender error properly could be considered, the respondent never claimed prejudice. He never argued that the evidence must be opened to allow him to present other evidence, or contended that he would be entitled to a continuance in order to respond to a claim of public defender error. Even in his appellate brief, the respondent makes no argument that he would have presented additional evidence or advanced a different litigation strategy. To the extent that the respondent implies that he was precluded from offering legal arguments in support of procedural default as to a claim of public defender error, it is unclear why such arguments could not have been presented in response to the habeas court's directive that the posttrial brief should address both whether that claim could be considered and whether the petitioner could prevail on that claim.

Accordingly, I am not only persuaded that the respondent was not unfairly surprised by the habeas court's consideration of public defender error, but that a contrary conclusion would not "do substantial justice between the parties." (Internal quotation marks omitted.) Lebron v. Commissioner of Correction, supra, 274 Conn. at 520, 876 A.2d 1178. Therefore, I would conclude that the habeas court properly considered whether the petitioner could prevail on this claim.

B

Whether a Claim of Public Defender Error Is Barred by Procedural Default

The respondent contends that the petitioner's claim is barred by procedural default because the petitioner did not establish both cause and prejudice to overcome the default. More specifically, the respondent contends that the Appellate Court improperly concluded that the presumption of prejudice that applies to a court's substantive determination that there has been a denial of counsel also applies to the procedural default inquiry that precedes a determination on the merits. I disagree.

I begin with the general principles governing procedural default. "Although this court is not compelled to conform state postconviction procedures to federal procedures"; Crawford v. Commissioner of Correction, 294 Conn. 165, 182, 982 A.2d 620 (2009) ; "our own jurisprudence concerning habeas corpus procedural defaults has developed in tandem with federal habeas corpus jurisprudence...." Id., at 180, 982 A.2d 620. This court has adopted the general rule in Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), requiring a habeas petitioner to "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" before a court will entertain the merits of the substantive claim. Crawford v. Commissioner of Correction, supra, at 191, 982 A.2d 620 ; see Johnson v. Commissioner of Correction, 218 Conn. 403, 409, 589 A.2d 1214 (1991). Actual prejudice in this context means "actual and substantial disadvantage, infecting [the criminal proceeding] with error of constitutional dimensions." (Emphasis omitted.) United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982) ; accord Johnson v. Commissioner of Correction, 285 Conn. 556, 570-71, 941 A.2d 248 (2008). The cause and prejudice standard "is designed to prevent full review of issues in habeas corpus proceedings that counsel did not raise at trial or on appeal for reasons of tactics, [inadvertence] or ignorance...." (Internal quotation marks omitted.) Crawford v. Commissioner of Correction, supra, at 191, 982 A.2d 620.

In many cases, the prejudice inquiry for procedural default can substantially overlap or merge with the showing of harm required to prevail on a claim of constitutional error. See, e.g., Johnson v. Commissioner of Correction, supra, 285 Conn. at 570-71, 941 A.2d 248 (concluding that similarity of prejudice necessary to prevail on claim of ineffective assistance of counsel to threshold showing of cause and prejudice to overcome procedural default makes it unnecessary to engage in latter inquiry). A claim of denial of counsel, however, is different.

It is a bedrock principle that "the right to counsel is the foundation for our adversary system. Defense counsel tests the prosecution's case to ensure that the proceedings serve the function of adjudicating guilt or innocence, while protecting the rights of the person charged. See, e.g., Powell v. Alabama, 287 U.S. 45, 68-69, 53 S.Ct. 55, 77 L.Ed. 158 (1932) ('[The defendant] requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence')." Martinez v. Ryan, ---U.S. ----, 132 S.Ct. 1309, 1317, 182 L.Ed.2d 272 (2012).

Accordingly, "[a]ctual or constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice." Strickland v. Washington, 466 U.S. 668, 692, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; see also United States v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984) (prejudice presumed when [1] counsel completely denied, [2] when counsel denied at critical stage of trial, and [3] when counsel "fails to subject the prosecution's case to meaningful adversarial testing"). This is an irrebuttable presumption.

See State v. Frye, 224 Conn. 253, 262, 617 A.2d 1382 (1992) ("right to counsel is so basic that its violation mandates reversal even if no particular prejudice is shown and even if there is overwhelming evidence of guilt" [internal quotation marks omitted] ).

Although the original rationale for this presumption was that prejudice "in these circumstances is so likely that case-by-case inquiry into prejudice is not worth the cost"; Strickland v. Washington, supra, 466 U.S. at 692, 104 S.Ct. 2052 ; a more constitutionally significant rationale later emerged as the United States Supreme Court's structural error jurisprudence developed. The Supreme Court explained that trial errors occur "during presentation of the case to the jury and their effect may be quantitatively assessed in the context of other evidence presented in order to determine whether [they were] harmless beyond a reasonable doubt.... These include most constitutional errors.... [S]tructural defects [however] ... defy analysis by harmless-error standards because they affec[t] the framework within which the trial proceeds, and are not simply an error in the trial process itself.... Such errors include the denial of counsel ... the denial of the right of self-representation ... the denial of the right to public trial ... and the denial of the right to trial by jury by the giving of a defective reasonable-doubt instruction...." (Citations omitted; footnote omitted; internal quotation marks omitted.) United States v. Gonzalez-Lopez, 548 U.S. 140, 148-49, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006).

Particularly telling for our purposes is the distinction that the United States Supreme Court has drawn between assessing prejudice when a defendant has been deprived of the counsel of his choice and when a defendant has received ineffective assistance of counsel: "[I]f and when counsel's ineffectiveness 'pervades' a trial, it does so (to the extent we can detect it) through identifiable mistakes. We can assess how those mistakes affected the outcome. To determine the effect of wrongful denial of choice of counsel, however, we would not be looking for mistakes committed by the actual counsel, but for differences in the defense that would have been made by the rejected counsel-in matters ranging from questions asked on voir dire and cross-examination to such intangibles as argument style and relationship with the prosecutors. We would have to speculate upon what matters the rejected counsel would have handled differently-or indeed, would have handled the same but with the benefit of a more jury-pleasing courtroom style or a [long-standing] relationship of trust with the prosecutors. And then we would have to speculate upon what effect those different choices or different intangibles might have had. The difficulties of conducting the two assessments of prejudice are not remotely comparable." Id., at 150-51, 126 S.Ct. 2557. The difficulties of assessing prejudice from a denial of counsel of choice would apply to an even greater extent when counsel is completely denied.

Thus, when a denial of counsel claim has been procedurally defaulted, these two lines of jurisprudence are ostensibly in tension. On the one hand, such a denial is legally presumed to result in prejudice. On the other hand, the general rule is that a petitioner is required to demonstrate prejudice to overcome a bar of procedural default. The question therefore is whether prejudice similarly should be presumed in the procedural default inquiry.

The courts that have addressed this question have universally resolved that question in the affirmative.

See Robinson v. Ignacio, 360 F.3d 1044, 1054-55 (9th Cir.2004) ; Shayesteh v. South Salt Lake, 217 F.3d 1281, 1284 (10th Cir.2000), cert. denied, 531 U.S. 1171, 121 S.Ct. 1139, 148 L.Ed.2d 1003 (2001) ;

Guzman v. United States, Docket No. C.A. 98-12086(MLW), 2004 WL 3710110, *8-9 (D.Mass. June 4, 2004) ; Coleman v. Ignacio, 164 F.R.D. 679, 684 (D.Nev.1996). Our Appellate Court has reached a similar conclusion. See Dennis v. Commissioner of Correction, 134 Conn.App. 520, 536-37, 39 A.3d 799 (2012).

I recognize that, in connection with structural errors other than denial of counsel, some courts have determined that prejudice should not be presumed for purposes of procedural default. See Jones v. Bell, 801 F.3d 556, 563 (6th Cir.2015) (denial of self-representation claim not entitled to presumption), cert. denied sub nom. Jones v. Smith, --- U.S. ----, 136 S.Ct. 878, 193 L.Ed.2d 735 (2016) ; Ambrose v. Booker, 684 F.3d 638, 649 (6th Cir.2012) (denial of claim that jury was not fair cross-section not entitled to presumption), cert. denied, --- U.S. ----, 133 S.Ct. 993, 184 L.Ed.2d 771 (2013) ; Purvis v. Crosby, 451 F.3d 734, 743 (11th Cir.) (denial of public trial claim not entitled to presumption), cert. denied sub nom. Purvis v. McDonough, 549 U.S. 1035, 127 S.Ct. 587, 166 L.Ed.2d 436 (2006) ; Commonwealth v. LaChance, 469 Mass. 854, 857, 17 N.E.3d 1101 (2014) (denial of public trial claim not entitled to presumption), cert. denied, --- U.S. ----, 136 S.Ct. 317, 193 L.Ed.2d 227 (2015) ; see also Perkins v. Hall, 288 Ga. 810, 829, 708 S.E.2d 335 (2011) ("[t]he general rule is that presumptions of harm that would have applied on direct appeal do not apply on habeas corpus to procedurally defaulted claims"). But see Owens v. United States, 483 F.3d 48, 64 (1st Cir.2007) ("a defendant who is seeking to excuse a procedurally defaulted claim of structural error need not establish actual prejudice"). The principal authority cited in those cases is Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973). See, e.g., Ambrose v. Booker, supra, at 649. In Davis, a federal prisoner collaterally attacked his conviction on grounds of unconstitutional discrimination in the composition of the grand jury that indicted him, after failing to comply with a federal rule deeming such claims waived unless raised before trial. Davis v. United States, supra, at 234-35, 93 S.Ct. 1577. In rejecting the petitioner's reliance on case law deeming such a violation inherently prejudicial, the court stated: "The presumption of prejudice which supports the existence of the right is not inconsistent with a holding that actual prejudice must be shown in order to obtain relief from a statutorily provided waiver for failure to assert it in a timely manner." Id., at 245, 93 S.Ct. 1577 ; see also Francis v. Henderson, 425 U.S. 536, 542, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976) (applying same rule to similar issue raised in collateral attack of state conviction).

I do not find this authority persuasive as applied to the present case for the following reasons. First, most of the courts that have refused to apply a presumption of prejudice to certain procedurally defaulted structural errors have indicated that a denial of counsel would be one of the limited circumstances in which such a presumption would still apply. See Ambrose v. Booker, supra, 684 F.3d at 652 ; Purvis v. Crosby, supra, 451 F.3d at 741 ; Upton v. Jones, 280 Ga. 895, 897, 635 S.E.2d 112 (2006) ; Commonwealth v. LaChance, supra, 469 Mass. at 860, 17 N.E.3d 1101. Indeed, the United States Supreme Court has recognized that "[i]t is only for certain structural errors undermining the fairness of a criminal proceeding as a whole that even preserved error requires reversal without regard to the mistake's effect on the proceeding. See Arizona v. Fulminante, 499 U.S. 279, [309-10, 111 S.Ct. 1246, 113 L.Ed.2d 302] (1991) (giving examples)."(Emphasis added.)

United States v. Dominguez Beni tez, 542 U.S. 74, 81, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004).

Second, Davis and Francis predate development of the United States Supreme Court's structural error jurisprudence, wherein the court emphasized the difficulty, if not impossibility, in certain cases of quantifying the prejudice arising from the constitutional violation. Indeed, as some courts rightly have pointed out, an assessment of prejudice becomes no more possible in one context than in the other. See, e.g., Owens v. United States, supra, 483 F.3d at 64-65. Although some errors are deemed structural for reasons other than that their impact on the reliability of the verdict cannot be ascertained; see J. Blume & S. Garvey, "Harmless Error in Federal Habeas Corpus after Brecht v. Abrahamson, " 35 Wm. & Mary L.Rev. 163, 185-87 (1993) ; it is clear that denial of counsel does not fall into this class of errors. See United States v. Gonzalez-Lopez, supra, 548 U.S. at 150-51, 126 S.Ct. 2557.

In the alternative, however, the respondent argues that no presumption of prejudice could apply to this case in any event because there has been no showing of a denial of counsel at the point of procedural default, namely, the failure to appeal the judgment of conviction. There is limited authority, not cited by the respondent, that lends some support to this position. See Stokes v. Scutt, 527 Fed.Appx. 358, 367-68 (6th Cir.2013) (recognizing that petitioner's failure to raise claim on appeal that he was forced to represent himself at trial in violation of sixth amendment right to counsel might have been excused had he timely raised claim of ineffective assistance of appellate counsel); Robinson v. Ignacio, supra, 360 F.3d at 1052-54 (petitioner established cause to excuse failure to raise claim of denial of sentencing counsel on direct appeal because stipulation had been entered into with state while that appeal was pending deemed such claim properly before habeas court in separate action).

This position ignores reality, especially in the present case. A defendant generally has twenty days to appeal a judgment of conviction. Practice Book § 63-1(a). It is trial counsel who advises a defendant whether there are legitimate grounds for appeal. Trial counsel is deemed to have appeared in the appeal unless he or she is granted permission to withdraw his or her appearance in the case or an in lieu of appearance has been filed by other counsel. Practice Book § 62-8. A self-represented defendant who has not chosen self-representation voluntarily and who challenges his denial of counsel should not be presumed to have sufficient knowledge and resources to ascertain within that period whether he has a legally tenable basis to appeal. Cf. Martinez v. Ryan, supra, 132 S.Ct. at 1317 ("[t]he prisoner, unlearned in the law, may not comply with the [s]tate's procedural rules or may misapprehend the substantive details of federal constitutional law"). Indeed, it seems wholly illogical to suggest that one who is presumed to have been prejudiced by the denial of counsel is somehow able to competently serve as his own counsel in deciding whether he has a tenable legal basis to appeal from the judgment in a trial in which he should not have been required to represent himself. Insofar as the respondent seems to suggest that the petitioner was required to apply for and be denied an appellate public defender, the petitioner had been told that his ownership of property was disqualifying. There is nothing in the record to indicate that this fact changed in the intervening period between the commencement and conclusion of the criminal trial. Accordingly, I would conclude that the Appellate Court properly determined that the habeas court properly presumed prejudice to excuse the procedural default.

C

Whether the Petitioner Established Public Defender Error

The respondent also claims that the habeas court improperly concluded that the petitioner met his burden of proof on a claim of public defender error. The respondent asserts three arguments: (1) the petitioner could not prevail without proving that the trial court's implicit determination that the petitioner did not prove his indigence was clearly erroneous; (2) the petitioner could not prevail without presenting his public defender applications because, in the absence of such evidence, the bases for the denial are unknown; and (3) even if the evidence that the petitioner presented could have been credited as having been presented to the public defender, it does not establish that the eligibility decision was improper. I disagree with each of these contentions.

Generally, "the trial court's assessment of the defendant's offer of proof pertaining to whether he was indigent and was, therefore, eligible for state funded expert assistance, is a factual determination subject to a clearly erroneous standard of review.... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." (Internal quotation marks omitted.) State v. Henderson, supra, 307 Conn. at 540, 55 A.3d 291.

In the present case, however, the respondent's arguments regarding the necessity of proving trial court error and of producing the public defender applications ignore the significance of a critical, unchallenged factual finding, as well as other facts plainly reflected in the record. The habeas court found that the petitioner had not been informed of his statutory right to appeal the public defender's decision. Judge Robaina advised the petitioner that the indigence determination is made by the public defender's office "independent of the court." Nothing that the trial court, Hon. Russell F. Potter, judge trial referee, said or did in conducting the waiver canvass would have disabused the petitioner of this notion. Judge Potter did not request that the public defender appear in court to explain the basis for the denials before making the implied waiver finding. The petitioner had no ground to dispute the factual basis for the denials, as he understood it. He believed that his mere ownership of property had automatically rendered him ineligible for public defender services.

We apply the deferential, clearly erroneous standard of review to a trial court's finding of indigence when a defendant has been given a reasonable opportunity to challenge the public defender's decision. For the reasons previously stated, that did not happen in this case. In the absence of a formal challenge to the public defender's decision, Judge Potter simply assumed the correctness of the determination of ineligibility.

I recognize that there is Appellate Court case law holding that, even when there is a question whether the defendant had notice of the right to appeal the public defender's decision, a trial court's determination that a defendant is not indigent may be upheld. See State v. Flemming, supra, 116 Conn.App. at 483, 976 A.2d 37 ("Although the defendant, representing himself, could not be expected to be aware of [the] specific statutory opportunity to appeal, neither did he at any point provide the court with notice that he disagreed with and did not accept the determination of the public defender. Absent any statutory or other duty to conduct further investigation into the public defender's indigency determination or any cognizable appeal of the determination by the defendant, the court was entitled to accept the report of the public defender and proceed with the violation of probation hearing as it did."). The circumstances of that case, however, are materially distinguishable from those in the present case. In Flemming, the public defender appeared in court and explained that the defendant's application had been denied because he previously had posted $200,000 in bonds and had not filled out the application completely. Id., at 475, 976 A.2d 37. The defendant did not contest these facts; id.; which clearly would have provided a proper presumptive basis to deem the defendant ineligible. See State v. Henderson, supra, 307 Conn. at 541, 55 A.3d 291 (defendant not entitled to public defender when $380,000 in bonds posted); State v. Gamer, supra, 152 Conn.App. at 5, 11, 95 A.3d 1223 (defendant not entitled to public defender when $200,000 surety bond posted, defendant appeared with private counsel, and public defender indicated that defendant had " 'considerable' " funds in bank account); see also State v. Martinez, 295 Conn. 758, 784, 991 A.2d 1086 (2010) (defendant not entitled to state funded DNA expert when defendant appeared with private counsel after refusing to permit public defender to represent him and failed to provide relevant information regarding assets); State v. Guitard, 61 Conn.App. 531, 539, 765 A.2d 30 (defendant not entitled to public defender when defendant appeared with counsel and admitted that he was not indigent), cert. denied, 255 Conn. 952, 770 A.2d 32 (2001). For similar reasons, the petitioner is not precluded from obtaining relief due to his failure to obtain copies of his applications for public defender services to vindicate his right to appeal the eligibility determination. By the time the petitioner obtained counsel who could inform him of his right to challenge that determination-at the commencement of his habeas proceedings-the public defender's office had destroyed his applications. Although the respondent suggests the possibility that, in the absence of the applications, we cannot be sure that the petitioner was not deemed ineligible because he failed to provide complete information to the public defender regarding his assets and liabilities; see, e.g., State v. Flemming, supra, 116 Conn.App. at 475, 976 A.2d 37 ; State v. Kennedy, 315 Wis.2d 507, 521-22, 762 N.W.2d 412 (2008) ; the record in the present case indicates otherwise. Raymond Canning, the Chief Public Defender for the judicial district of Windham at Danielson, testified that the procedure in the Danielson office, following the submission of an application, is to send a notice to the state's attorney, through the marshal, with one of three categories checked off: granted, denied, or further information needed. The record indicates that the state's attorney agreed that the petitioner's applications had been denied.

Having concluded that our review is focused on the propriety of the habeas court's conclusion that the public defender's eligibility determination was erroneous, I now turn to that question. Because there is no precedent for review of a habeas court's determination of public defender error, I first must determine the appropriate standard of review. I conclude that the habeas court's finding of indigence should be reviewed under the clearly erroneous standard, the same standard used to review a trial court's finding of indigence following an appeal of the public defender's decision of eligibility for services. State v. Henderson, supra, 307 Conn. at 540, 55 A.3d 291 ; see Sanchez v. Commissioner of Correction, 314 Conn. 585, 604, 103 A.3d 954 (2014) ("habeas court is afforded broad discretion in making its factual findings, and those findings will not be disturbed unless they are clearly erroneous" [internal quotation marks omitted] ). The habeas court, however, must consider all of the factors that would be relevant to a determination of eligibility for public defender services. In assessing all of those factors, it is important to underscore that "[t]he habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony." (Internal quotation marks omitted.) Id.

Under this standard of review, I conclude that the habeas court's finding that the petitioner was eligible for defender services from the time his second application was denied in December, 2008, through the waiver canvass in April, 2009, cannot be deemed clearly erroneous. The habeas court properly could credit the petitioner's testimony that all of the information provided to that court regarding his income, assets, and liabilities also had been provided to the public defender when he submitted his applications for services. The court credited the petitioner's testimony and documentary evidence regarding his low wage employment and lack of funds in any bank account. These factors made the petitioner presumptively income eligible for public defender services in light of the serious charges he faced.

The majority argues, however, that the petitioner neither established his income nor the public defender income guidelines for 2007 and 2008-proof that he did not intend to advance a claim of public defender error. The majority overlooks, however, evidence from which the habeas court could have drawn reasonable inferences as to the relevant facts. The petitioner introduced into evidence his bank account statements for 2007, 2008, and 2009. He testified before the habeas court that he had worked the third shift at the Xtra Mart Mobil station in Dayville in both December, 2008, and April, 2009. The transcript of the April, 2009 waiver canvass that was offered into evidence at the habeas court revealed that the petitioner cited the same shift and employer, along with his weekly wage ($300 to $350), when asked by the trial court about his current employment. Therefore, the habeas court logically would have inferred that the petitioner's income was the same or approximately the same four months earlier when he applied for a public defender. Similarly, with respect to the public defender income guidelines, in light of testimony establishing the basis of the modest annual adjustments to those guidelines, the habeas court reasonably would have inferred that the 2008 guidelines were not materially lower than those for the 2009 guidelines that the petitioner offered into evidence. Finally, public defender error in 2008 would have been the only denial logically relevant to the April, 2009 waiver canvass.

Having properly concluded that the petitioner was presumptively income eligible, the habeas court also credited evidence that supported its conclusion that the petitioner did not have other assets that properly would have rendered him ineligible. The habeas court credited evidence establishing that the petitioner's sole asset was residential property in which he had approximately $50,000 in equity based on a valuation performed by a bank in January, 2007. The habeas court credited testimony from Brian Carlow, the Deputy Chief Public Defender for the Office of the Chief Public Defender, that under public defender policies and guidelines, equity in an asset must be readily accessible to disqualify an otherwise income eligible applicant. It was within the habeas court's province to credit Carlow's testimony over Canning's testimony that it is the policy of the public defender's office that equity in real estate: is generally not viewed as accessible to the same extent as cash or other liquid assets; was not viewed as a significant eligibility factor in the relevant period due to the economic downturn; and, would not be a factor at all if the real property was in foreclosure, barring unusual circumstances. Accordingly, the habeas court's conclusion that there was public defender error was not clearly erroneous.

I therefore agree with the Appellate Court that the habeas court properly concluded that, " 'but for the public defender's erroneous eligibility determination, the petitioner would not have "implicitly" or otherwise waived his right to counsel, and the trial court would not have accepted the "implicit" waiver had it known of the petitioner's eligibility.' "

Newland v. Commissioner of Correction, 151 Conn.App. at 145, 94 A.3d 676. Accordingly, I respectfully dissent. 
      
      The child victim, who was related to both the petitioner and to the petitioner's then fiancée, resided with the petitioner and his fiancée in the petitioner's house. Following the allegations of sexual abuse, the petitioner moved out of the house and rented a place to live, while his former fiancée and the child remained in the house.
     
      
      This refinancing occurred eleven months before the petitioner represented to the trial court that he was "in the process of trying to refinance [his] property" to obtain the funds to hire counsel. In the habeas court, the petitioner testified that he had not tried to refinance the property after the January, 2007 refinancing because he "already knew that [he] ... had maxed out what [he] was able to refinance on a percentage of its value." When the habeas court questioned the petitioner about his contrary statement to the trial court, the petitioner replied that he had misstated what he had meant to say, which was simply that he was trying to "get something where I could use the property value," and that he "was probably trying to contact people to see if [he] could even get anything else out...."
     
      
      Canning testified that applicants who are deemed ineligible by the public defender's office are "almost universally" told of their right to appeal from that decision to the court.
     
      
      A more accurate representation of the Appellate Court's decision is that it upheld the habeas court's determination that cause and prejudice are presumed when a claim concerns public defender error.
     
      
      We note that, although the habeas court's decision rested on the propriety of the threshold determination by the public defender's office that the petitioner did not qualify under its guidelines and policies, and the petitioner's unawareness that this determination was clearly erroneous, there is no precedent for such a theory in our courts, and the petitioner has not cited any precedent from other jurisdictions that supports such a theory. Nevertheless, we need not consider whether such a theory is cognizable in light of the record in the present case, which reveals that the petitioner did not advance such a theory in the habeas court.
     
      
      The petitioner's counsel referred to State v. Coleman, 83 Conn.App. 672, 851 A.2d 329, cert. denied, 271 Conn. 910, 859 A.2d 571 (2004), cert. denied, 544 U.S. 1050, 125 S.Ct. 2290, 161 L.Ed.2d 1091 (2005), in which the Appellate Court observed that "[a] defendant has knowingly and intelligently waived the right to counsel if the trial judge finds that he: (1) [h]as been clearly advised of the right to the assistance of counsel, including the right to the assignment of counsel when so entitled; (2) [p]ossesses the intelligence and capacity to appreciate the consequences of the decision to represent oneself; (3) [c]omprehends the nature of the charges and proceedings, the range of permissible punishments, and any additional facts essential to a broad understanding of the case; and (4) [h]as been made aware of the dangers and disadvantages of self-representation." (Internal quotation marks omitted.) Id., at 685, 851 A.2d 329, quoting State v. Bangulescu, 80 Conn.App. 26, 42-43, 832 A.2d 1187, cert. denied, 267 Conn. 907, 840 A.2d 1171 (2003) ; see also Practice Book § 44-3.
     
      
      Although we acknowledge the complicated circumstances that led to the petitioner's lack of representation by counsel at trial, we do not endorse Justice McDonald's suggestion that the court exercise its supervisory powers over the administration of justice to adopt a prophylactic rule that would prevent trial courts from trying a defendant deemed ineligible for public defender services as an unrepresented party without first holding a hearing on the issue of indigency. Rather, we believe this issue should be addressed, if at all, by the Rules Committee of the Superior Court, which provides a more appropriate forum in which to fully and fairly consider any potential amendment to the procedural rules.
     
      
      I recognize that this supervisory directive would have the practical effect of overruling the Appellate Court's decisions in State v. Flemming, supra, 116 Conn.App. at 482, 976 A.2d 37, and State v. Guitard, 61 Conn.App. 531, 538-39, 765 A.2d 30, cert. denied, 255 Conn. 952, 770 A.2d 32 (2001). In those cases, the Appellate Court held that the trial court was not required to conduct an evidentiary hearing when the defendant raised the issue of indigency and that the office of the public defender is the only entity upon which a statutory duty is imposed to investigate a claim of indigency.
     
      
      There is a statutory mechanism to address circumstances in which it later becomes apparent that a defendant in fact has sufficient resources to obtain private counsel. See General Statutes § 51-298.
     
      
      The guidelines and policies promulgated by the Public Defender Services Commission are intended to assess whether a defendant is indigent. See General Statutes §§ 51-296(a) and 51-297(a). Indigence is statutorily defined to mean that the defendant lacks the financial resources to hire competent counsel. See General Statutes § 51-297(f). Therefore, if a defendant advances a claim that the public defender's office determined that he was not eligible for its services but he could not afford to hire private counsel, he is effectively asserting that the public defender determined that he is not indigent, when in fact he is indigent. In other words, the defendant is challenging the public defender's decision that he is not entitled to appointed counsel.
     
      
      Even if I were to assume that it is the petitioner's burden to prove that the respondent would not be, or was not, prejudiced by consideration of the issue of public defender error, I would conclude that the record establishes sufficient facts to make a prima facie showing.
     
      
      To the extent that the majority contends that evidentiary deficiencies in support of a claim of public defender error demonstrate that the petitioner did not advance such a claim at the habeas trial, I address those matters in part II C of this dissenting opinion.
     
      
      It is telling that this claim of prejudice was advanced in a footnote in the respondent's brief, appended to a single sentence in the body of the brief asserting that "[s]uch a shift constituted surprise to the respondent, and much of the evidence in that regard was admitted over the respondent's objection." I note that the respondent has not claimed on appeal that the evidence on which the habeas court based its decision was admitted in violation of any rule of evidence or that the respondent was in any way impaired in responding to a claim of public defender error other than his purported inability to assert a procedural default defense. Indeed, the respondent conducted a vigorous cross-examination of the petitioner's witnesses.
      The majority notes that the respondent filed an objection to certain materials appended to the petitioner's posttrial brief regarding the state of the housing market during the relevant period. The habeas court did not rule on the objection, but never cited those materials in its decision. The habeas court exclusively relied on the testimony of Brian Carlow, the Deputy Chief Public Defender for the Office of the Chief Public Defender, as the basis for its conclusion that the public defender's office would have given little weight to equity in real estate, absent unusual circumstances, given the state of the housing market. Had the court decided to rely on the materials appended to the petitioner's posttrial brief, it presumably would have explained why it properly could do so in light of the respondent's objection.
     
      
      The respondent does not separately challenge the cause prong, perhaps assuming that this prong also turns on whether a presumption applies. To the extent that the petitioner would be required to demonstrate such cause, I have no doubt that Judge Robaina's statement, which effectively communicated that there was no judicial review of the public defender's decision, would constitute such cause.
     
      
      Although these cases did not involve a claim that the denial of counsel resulted from an improper decision by the public defender's office, but rather an improper trial court decision, l see no meaningful basis on which they should be distinguished since the resulting constitutional violation is the same, no matter its source.
     
      
      This argument appears more directed to a claim of trial court error than public defender error. Nonetheless, because the public defender's error gave rise to the denial of counsel at trial, I address it for the sake of completeness.
     
      
      The respondent suggests that Judge Potter could have found the petitioner not to be credible. I note, however, that, in addition to the fact that Judge Potter made no such finding, the record strongly suggests a contrary conclusion. The numerous continuances that were granted to the petitioner would have suggested to Judge Potter that the other trial judges had credited the petitioner's good faith efforts to obtain private counsel. In addition, Judge Potter's expression of regret at having to find an implied waiver suggests that he too credited the petitioner's representations.
     
      
      That being said, the petitioner could have done more to corroborate his testimony regarding his income and his inability to refinance his property or obtain loans on the basis of equity in the property. Nonetheless, it was within the province of the habeas court to determine whether the petitioner's testimony, in and of itself, was sufficiently credible as to these matters.
     
      
      The habeas court did not determine specifically whether the petitioner was indigent when he first was denied public defender services in 2007. I therefore limit my review to the period between the denial of the second application for public defender services and the waiver canvass.
     
      
      The habeas court made no express findings regarding the petitioner's testimony that none of that equity was accessible because a January, 2007 refinancing was for the maximum amount that the lender would allow.
     
      
      At oral argument before this court, Justice Zarella questioned the respondent as to whether it would have been appropriate for the trial court to take judicial notice of the fact that the foreclosure action, which was commenced in June, 2008, had been dismissed in December, 2008, several months before the waiver canvass. See Citibank, N.A. v. Newland, Superior Court, judicial district of Windham, Docket No. CV-08-5003211-S (December 15, 2008). The respondent was apparently unaware of this fact, but nonetheless agreed that it would have been proper for the trial court to have done so. See Ajadi v. Commissioner of Correction, 280 Conn. 514, 522 n. 13, 911 A.2d 712 (2006) (judicial notice of court records proper). I am not inclined to consider this fact for the following reasons. First, the respondent could have brought this fact to the habeas court's attention in his posttrial brief, thereby allowing the petitioner to address the significance of the dismissal. Factors that could be relevant would be the accessibility of the equity in light of the still existing default on the mortgage and the threat of recommencement of foreclosure proceedings, which in fact later did occur. In addition, the habeas court may have expressly credited the petitioner's testimony that he could not access the equity because he had refinanced the property in 2007 for the maximum amount that the lender would allow. See footnote 13 of this dissenting opinion. Second, Carlow's testimony, credited by the habeas court, provided an independent reason why the equity in the property would not be deemed readily accessible, namely, the economic downturn during the relevant period.
     