Opinion
BORDEN, J.
In this case, we granted certification to appeal from the judgment of the Appellate Court in order to consider the important question of whether a habeas coipus petitioner who claims actual innocence of the crime of which he stands convicted must establish that his claim of innocence is sustained by newly discovered evidence. The Appellate Court had concluded that the petitioner, Winston Clai ke, was required to establish his innocence by such evidence, and that the evidence that he had put forth in support of his claim of innocence did not meet that standard. Clarke v. Commissioner of Correction, 43 Conn. App. 374, 384, 682 A.2d 618 (1996). Accordingly, the Appellate Court affirmed the habeas court’s denial of the writ. Id. We then granted certification to appeal, limited to that issue.1 We conclude, however, after having examined the record on appeal and considered the briefs and oral arguments of the parties, that the appeal should be dismissed on the ground that certification to appeal was improvidently granted.
[352] After a jury trial in November, 1990, the petitioner was convicted of possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b),2 and of possession of a controlled substance with intent to sell in violation of General Statutes § 21a-277 (b).3 The petitioner, however, faded to appear for the last day of [353] the jury trial and for the sentencing in February, 1991. Accordingly, he was sentenced in absentia to an effective term of thirteen years incarceration on both convictions. Although the record of this appeal does not disclose precisely when and how, it is obvious that he subsequently was apprehended and remanded to the custody of the respondent, the commissioner of correction.
In October, 1994, the petitioner filed an amended petition claiming actual innocence of the offenses of [354] which he stood convicted.4 After a trial, the habeas court, applying the standard for proving actual innocence articulated by Justice White in his concurring opinion in Herrera v. Collins, 506 U.S. 390, 429, 113 S. Ct. 853, 122 L. Ed. 2d 203 (1993) (based on newly discovered evidence and entire record of original trial, no rational trier of fact could find proof beyond reasonable doubt), found that “a rational trier of fact could find proof of the petitioner’s guilt beyond a reasonable doubt.” Thus, although the habeas court referred to the “newly discovered evidence” requirement, it did not employ that requirement in rejecting the petitioner’s claim. Instead, the court addressed the claim of actual innocence and rejected the claim on its merits.
After a grant of certification to appeal to the Appellate Court; see General Statutes § 52-470 (b);5 the petitioner appealed to that court. The Appellate Court, however, did not address the petitioner’s claim regarding his actual innocence. Instead, relying on that court’s decision in Williams v. Commissioner of Correction, 41 Conn. App. 515, 677 A.2d 1, appeal dismissed, 240 Conn. 547, 692 A.2d 1231 (1997), the Appellate Court determined that the evidence on which the petitioner relied for that claim was not “newly discovered,” within the [355] meaning of that phrase in habeas corpus parlance, and affirmed the judgment of the habeas court on that basis. Clarke v. Commissioner of Correction, supra, 43 Conn. App. 384. Thus, the Appellate Court did not review the merits of the petitioner’s actual innocence claim. This certified appeal followed.
In Summerville v. Warden, 229 Conn. 397, 422, 641 A.2d 1356 (1994), this court held for the first time that “a substantial claim of actual innocence is cognizable by way of a petition for a writ of habeas corpus, even in the absence of proof by the petitioner of an antecedent constitutional violation that affected the result of his criminal trial.” Such a claim is known as a Treestanding claim of actual innocence. Miller v. Commissioner of Correction, 242 Conn. 745, 788 n.28, 700 A.2d 1108 (1997). In Summerville, however, it was not necessary for us to reach the question of “the legal standard [of persuasion] that must be met by a habeas corpus petitioner claiming actual innocence in order to gain a new trial at which his guilt or innocence will again be determined . . . .” Summerville v. Warden, supra, 432.
Thereafter, in Miller v. Commissioner of Correction, supra, 242 Conn. 745, we resolved the question that we had left unanswered in Summerville. We held “that the proper standard for evaluating a freestanding claim of actual innocence, like that of the petitioner, is twofold. First, the petitioner must establish by clear and convincing evidence that, taking into account all of the evidence — both the evidence adduced at the original criminal trial and the evidence adduced at the habeas corpus trial — he is actually innocent of the crime of which he stands convicted. Second, the petitioner must also establish that, after considering all of that evidence and the inferences drawn therefrom as the habeas court did, no reasonable fact finder would find the petitioner guilty of the crime.” Id., 747.
[356] In so holding, however, “we assume [d] without deciding that the petitioner’s claim must be based on ‘new evidence,’ that is, evidence that is not cumulative, was not available to the petitioner at his criminal trial, and could not have been discovered by him at that time through due diligence. See Summerville v. Warden, supra, 229 Conn. 426.” Miller v. Commissioner of Correction, supra, 242 Conn. 789 n.29. We engaged in that assumption for three explicitly stated reasons: “(1) the habeas court applied that requirement to the petitioner in [that] case, and determined that the petitioner’s evidence met that requirement; (2) the petitioner agreed that this should be one of the components of his burden; and (3) the parties [did] not dispute that the petitioner’s evidence is newly discovered.” (Emphasis in original.) Id., 789-90 n.29.6
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Opinion
BORDEN, J.
In this case, we granted certification to appeal from the judgment of the Appellate Court in order to consider the important question of whether a habeas coipus petitioner who claims actual innocence of the crime of which he stands convicted must establish that his claim of innocence is sustained by newly discovered evidence. The Appellate Court had concluded that the petitioner, Winston Clai ke, was required to establish his innocence by such evidence, and that the evidence that he had put forth in support of his claim of innocence did not meet that standard. Clarke v. Commissioner of Correction, 43 Conn. App. 374, 384, 682 A.2d 618 (1996). Accordingly, the Appellate Court affirmed the habeas court’s denial of the writ. Id. We then granted certification to appeal, limited to that issue.1 We conclude, however, after having examined the record on appeal and considered the briefs and oral arguments of the parties, that the appeal should be dismissed on the ground that certification to appeal was improvidently granted.
[352] After a jury trial in November, 1990, the petitioner was convicted of possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b),2 and of possession of a controlled substance with intent to sell in violation of General Statutes § 21a-277 (b).3 The petitioner, however, faded to appear for the last day of [353] the jury trial and for the sentencing in February, 1991. Accordingly, he was sentenced in absentia to an effective term of thirteen years incarceration on both convictions. Although the record of this appeal does not disclose precisely when and how, it is obvious that he subsequently was apprehended and remanded to the custody of the respondent, the commissioner of correction.
In October, 1994, the petitioner filed an amended petition claiming actual innocence of the offenses of [354] which he stood convicted.4 After a trial, the habeas court, applying the standard for proving actual innocence articulated by Justice White in his concurring opinion in Herrera v. Collins, 506 U.S. 390, 429, 113 S. Ct. 853, 122 L. Ed. 2d 203 (1993) (based on newly discovered evidence and entire record of original trial, no rational trier of fact could find proof beyond reasonable doubt), found that “a rational trier of fact could find proof of the petitioner’s guilt beyond a reasonable doubt.” Thus, although the habeas court referred to the “newly discovered evidence” requirement, it did not employ that requirement in rejecting the petitioner’s claim. Instead, the court addressed the claim of actual innocence and rejected the claim on its merits.
After a grant of certification to appeal to the Appellate Court; see General Statutes § 52-470 (b);5 the petitioner appealed to that court. The Appellate Court, however, did not address the petitioner’s claim regarding his actual innocence. Instead, relying on that court’s decision in Williams v. Commissioner of Correction, 41 Conn. App. 515, 677 A.2d 1, appeal dismissed, 240 Conn. 547, 692 A.2d 1231 (1997), the Appellate Court determined that the evidence on which the petitioner relied for that claim was not “newly discovered,” within the [355] meaning of that phrase in habeas corpus parlance, and affirmed the judgment of the habeas court on that basis. Clarke v. Commissioner of Correction, supra, 43 Conn. App. 384. Thus, the Appellate Court did not review the merits of the petitioner’s actual innocence claim. This certified appeal followed.
In Summerville v. Warden, 229 Conn. 397, 422, 641 A.2d 1356 (1994), this court held for the first time that “a substantial claim of actual innocence is cognizable by way of a petition for a writ of habeas corpus, even in the absence of proof by the petitioner of an antecedent constitutional violation that affected the result of his criminal trial.” Such a claim is known as a Treestanding claim of actual innocence. Miller v. Commissioner of Correction, 242 Conn. 745, 788 n.28, 700 A.2d 1108 (1997). In Summerville, however, it was not necessary for us to reach the question of “the legal standard [of persuasion] that must be met by a habeas corpus petitioner claiming actual innocence in order to gain a new trial at which his guilt or innocence will again be determined . . . .” Summerville v. Warden, supra, 432.
Thereafter, in Miller v. Commissioner of Correction, supra, 242 Conn. 745, we resolved the question that we had left unanswered in Summerville. We held “that the proper standard for evaluating a freestanding claim of actual innocence, like that of the petitioner, is twofold. First, the petitioner must establish by clear and convincing evidence that, taking into account all of the evidence — both the evidence adduced at the original criminal trial and the evidence adduced at the habeas corpus trial — he is actually innocent of the crime of which he stands convicted. Second, the petitioner must also establish that, after considering all of that evidence and the inferences drawn therefrom as the habeas court did, no reasonable fact finder would find the petitioner guilty of the crime.” Id., 747.
[356] In so holding, however, “we assume [d] without deciding that the petitioner’s claim must be based on ‘new evidence,’ that is, evidence that is not cumulative, was not available to the petitioner at his criminal trial, and could not have been discovered by him at that time through due diligence. See Summerville v. Warden, supra, 229 Conn. 426.” Miller v. Commissioner of Correction, supra, 242 Conn. 789 n.29. We engaged in that assumption for three explicitly stated reasons: “(1) the habeas court applied that requirement to the petitioner in [that] case, and determined that the petitioner’s evidence met that requirement; (2) the petitioner agreed that this should be one of the components of his burden; and (3) the parties [did] not dispute that the petitioner’s evidence is newly discovered.” (Emphasis in original.) Id., 789-90 n.29.6
The certified question in the present case is very important — to habeas corpus petitioners, to the state as the respondent to such petitions, and to the judicial system in general. Our final answer will have serious implications for all three groups. Furthermore, it is a very difficult question, with powerful and appealing arguments on both sides.
When faced with a question of this magnitude and difficulty, a court performs its function best when it is presented with a concrete factual situation that compels it to focus on those facts and the rule of law that applies to them because the outcome of the case is likely to depend on the answer to the question. To be sure, there are times when we have considered questions that did [357] not absolutely need to be answered by the facts of the case at hand. Undoubtedly, there will be others as well. When, however, we realize that we are confronted with a case involving a legal question of the order of magnitude of the nature of the evidence that the law requires a habeas corpus petitioner to produce in order to prove his actual innocence, prudence strongly suggests that, if possible, we postpone our determination until we are presented with facts that squarely and necessarily require us to address the question. We are more likely to answer the question soundly when the actual outcome of the case is likely to depend on the answer to the legal question. This is not such a case.
The habeas court rejected the claim of actual innocence on its merits. The Appellate Court did not review that determination. Thus, there is as yet no adjudication in this case suggesting that there is a substantial basis for the petitioner’s claim of actual innocence. Moreover, our review of the record does not suggest that, independent of any such adjudication, there is such a substantial basis in this case.7 It would, therefore, be prudent for us to await a case in which there is a substantial basis for the claim of actual innocence. When and if we are presented with such a case, we will undertake to decide the question of the “new evidence” requirement in that context because that will give us a compelling context in which to resolve the question. Therefore, we conclude that this appeal should be dismissed on the ground that certification to appeal was improvidently granted.
We reiterate that, as we indicated in Miller v. Commissioner of Correction, supra, 242 Conn. 789-90 n.29, [358] we have not decided whether a habeas petitioner’s claim of actual innocence must be based on new evidence, and that, therefore, it should be regarded as an open question in our habeas jurisprudence. We also reiterate that, just as a denial by us of certification to appeal from a judgment of the Appellate Court in any given case should not be understood as either approval or disapproval of the opinion of that court; State v. Doscher, 172 Conn. 592, 376 A.2d 359 (1977); similarly, a dismissal of a certified appeal on the ground that certification was improvidently granted should not be understood as either approval or disapproval of the decision from which certification to appeal was originally granted.
The appeal is dismissed.
In this opinion NORCOTT and KATZ, Js., concurred.