Robles v. Commissioner of Correction , 169 Conn. App. 751 ( 2016 )

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ROLANDO ROBLES v. COMMISSIONER
OF CORRECTION
(AC 37686)
DiPentima, C. J., and Alvord and Pellegrino, Js.
Argued September 12—officially released December 20, 2016
(Appeal from Superior Court, judicial district of
Tolland, Oliver, J.)
Naomi T. Fetterman, for the appellant (petitioner).
Lisa A. Riggione, senior assistant state’s attorney,
with whom, on the brief, were Gail P. Hardy, state’s
attorney, and Jo Anne Sulik, supervisory assistant
state’s attorney, for the appellee (respondent).
Opinion
DiPENTIMA, C. J. The petitioner, Rolando Robles,
appeals from the judgment of the habeas court denying
his petition for a writ of habeas corpus. On appeal,
the petitioner argues that the habeas court improperly
denied his petition because his guilty pleas, made pursu-
ant to the Alford doctrine,1 were not made knowingly,
intelligently and voluntarily as a result of the new inter-
pretation of our kidnapping statutes as detailed in State
v. Salamon, 287 Conn. 509, 949 A.2d 1092 (2008), and
its progeny. We conclude that the petitioner’s specific
claim regarding the knowing and intelligent nature of
his pleas was not raised to or decided by the habeas
court. Accordingly, we decline to review his appellate
claim and affirm the judgment of the habeas court.
The following facts and procedural history underlie
our discussion. The state charged the petitioner with
kidnapping in the first degree in violation of General
Statutes § 53a-92 (a) (2) (A), attempt to commit kidnap-
ping in the first degree in violation of General Statutes
§§ 53a-49 and 53a-92 (a) (2) (A) (kidnapping offenses)
and sexual assault in the fourth degree in violation of
General Statutes § 53a-73a (a) (2). See State v. Robles,
169 Conn. App. 127, 128–29, A.3d (2016). On
August 29, 2007, the petitioner appeared before the trial
court, Miano, J., to enter guilty pleas to these charges.
Id., 129. After some discussion, the court accepted the
petitioner’s guilty pleas pursuant to the Alford doctrine.
Id., 129–30.
During the plea proceeding, the prosecutor set forth
the following factual bases underlying the charges
against the petitioner. ‘‘[T]hat’s an incident that hap-
pened on December 15, 2005, and it was in the area of
Sigourney Street and Russ Street. The complainant, the
victim, was a seventeen year old female. She was on
her way to school at Hartford Public High School when
[the petitioner] came up from behind her. He grabbed
her and had sexual contact placing his hand on her
buttocks area and genital area and that was over her
clothing. She was able to push him away.
‘‘He followed her. A short distance later he pulled
her by the jacket. He attempted to pull her back behind
the apartment building, and these were her words, she
was able to break free. Her jacket did rip. And she was
able to gain freedom. A later identification was made
after she filed this complaint and told family members.
One family member had seen him. And she ultimately
positively identified the [petitioner] as the person who
had done this to her.
‘‘The next incident . . . that happened five days later
on December 20, 2005, in the morning hours, 8:40 in
the a.m., near the intersection of Capitol Avenue and
Laurel Street. This [incident] involved a sixteen year
old female. She was walking to school. She observed
the [petitioner] following her. He did catch up with her
in that area of Capitol Avenue and Laurel Street. He
grabbed her from behind and attempted to pull her or
drag her into a fenced area. She also fought back and
freed herself after a short scuffle with him.’’ (Internal
quotation marks omitted.) Id., 129 n.2. Following his
conviction, the court sentenced the petitioner to fifteen
years incarceration, execution suspended after time
served, and twenty years of probation.2 Id., 130.
Following the petitioner’s conviction, our Supreme
Court reinterpreted the intent element of our kidnap-
ping statutes. In State v. Salamon, supra, 287 Conn.
542, it stated: ‘‘Our legislature, in replacing a single,
broadly worded kidnapping provision with a gradated
scheme that distinguishes kidnappings from unlawful
restraints by the presence of an intent to prevent a
victim’s liberation, intended to exclude from the scope
of the more serious crime of kidnapping and its accom-
panying severe penalties those confinements or move-
ments of a victim that are merely incidental to and
necessary for the commission of another crime against
that victim. Stated otherwise, to commit a kidnapping
in conjunction with another crime, a defendant must
intend to prevent the victim’s liberation for a longer
period of time or to a greater degree than that which
is necessary to commit the other crime.’’
Our Supreme Court further noted that ‘‘[w]hen that
confinement or movement is merely incidental to the
commission of another crime, however, the confine-
ment or movement must have exceeded that which was
necessary to commit the other crime. [T]he guiding
principle is whether the [confinement or movement]
was so much the part of another substantive crime that
the substantive crime could not have been committed
without such acts . . . . In other words, the test . . .
to determine whether [the] confinements or movements
involved [were] such that kidnapping may also be
charged and prosecuted when an offense separate from
kidnapping has occurred asks whether the confine-
ment, movement, or detention was merely incidental to
the accompanying felony or whether it was significant
enough, in and of itself, to warrant independent prose-
cution. . . . Conversely, a defendant may be convicted
of both kidnapping and another substantive crime if,
at any time prior to, during or after the commission of
that other crime, the victim is moved or confined in a
way that has independent criminal significance, that is,
the victim was restrained to an extent exceeding that
which was necessary to accomplish or complete the
other crime.’’ (Citations omitted; internal quotation
marks omitted.) Id., 546–47.
In January, 2012, the petitioner commenced the pre-
sent action. On February 21, 2014, the petitioner filed an
amended petition for a writ of habeas corpus (operative
petition). In count one, he alleged illegal confinement
because his conviction for the kidnapping offenses was
unconstitutional. Specifically, he argued that § 53a-92
was unconstitutional under both the federal and state
constitutions and that our Supreme Court’s decisions
in Salamon and its progeny3 were subject to retroactive
application as set forth in Luurtsema v. Commissioner
of Correction, 299 Conn. 740, 12 A.3d 817 (2011).4 The
petitioner then iterated the general claim that his con-
viction for the kidnapping offenses was based on a
violation of the federal and state constitutions. In count
two of the operative petition, the petitioner alleged inef-
fective assistance of his counsel, Attorney Robert Mere-
dith. There was no allegation in this count that his pleas
were not knowing, intelligent and voluntary.
The habeas court conducted a trial on June 30, 2014.
Meredith and the petitioner were the only witnesses to
testify at the trial. The parties filed posttrial briefs on
August 6, 2014. On December 16, 2014, the habeas court,
Oliver, J., issued a written memorandum of decision
denying the petition for a writ of habeas corpus. With
respect to the claim of illegal confinement, the court
rejected the special defense of procedural default
advanced by the respondent, the Commissioner of Cor-
rection. The court noted that Salamon’s reinterpreta-
tion of our kidnapping jurisprudence arose in the
context of an improper jury instruction. In an attempt
to reconcile the posture of that case with that of the
petitioner’s guilty pleas, the court determined that ‘‘the
petitioner would need to establish the probability that
not a single reasonable juror, properly instructed as to
the elements of kidnapping under Salamon, would have
voted to find him guilty of the challenged charges had
the case gone to trial.’’5 The court, after reviewing the
record, and discrediting the petitioner’s testimony,6 con-
cluded that at least one juror, properly instructed,
would have voted to convict him of the kidnapping
charges. The court also rejected the petitioner’s ineffec-
tive assistance of counsel claim, and denied the petition
for a writ of habeas corpus.7 On December 23, 2014,
the court granted the petition for certification to appeal.
On appeal, the petitioner claims that his pleas to the
kidnapping charges were invalid. Specifically, he argues
that his pleas were not knowing, intelligent and volun-
tary because the retroactive application of Salamon
required a factual basis,8 absent from the record in this
case, that he had intended to prevent the liberation of
the victims for a longer period of time, or to a greater
degree, than that which was necessary to commit the
sexual assault. In turn, the respondent argues that, to
the extent that the petitioner had raised a due process
challenge based on the sufficiency of the evidence, this
claim was waived by operation of his guilty plea. The
respondent further contends that, to the extent that the
petitioner had raised an actual innocence claim, the
habeas court properly rejected it.
We conclude that the respondent has misidentified
or misinterpreted the petitioner’s appellate claim. We
further conclude, however, that the claim raised in this
appeal was not presented to or decided by the habeas
court. As a result, we decline to consider its merits.
Accordingly, we affirm the judgment of the habeas
court.
A brief discussion of the relevant law on whether a
plea was made knowingly, intelligently and voluntarily
will facilitate our discussion. ‘‘[I]f a defendant’s guilty
plea is not equally voluntary and knowing, it has been
obtained in violation of due process and is therefore
void.’’ (Internal quotation marks omitted.) Paulsen v.
Manson, 203 Conn. 484, 489, 525 A.2d 1315 (1987); see
also State v. Niblack, 220 Conn. 270, 278, 596 A.2d 407(1991). A determination of whether a plea was know-
ingly and voluntarily made requires an examination of
all the relevant circumstances. State v. Wright, 207
Conn. 276, 287, 542 A.2d 299 (1988); State v. Velez, 30
Conn. App. 9, 21, 618 A.2d 1362, cert. denied, 225 Conn.
907, 621 A.2d 289 (1993). ‘‘In choosing to plead guilty,
the defendant is waiving several constitutional rights,
including his privilege against self-incrimination, his
right to trial by jury, and his right to confront his accus-
ers.’’ (Internal quotation marks omitted.) State v.
Greene, 274 Conn. 134, 144, 874 A.2d 750 (2005), cert.
denied, 548 U.S. 926, 126 S. Ct. 2981, 165 L. Ed. 2d 988(2006); see also Boykin v. Alabama, 395 U.S. 238, 243,
89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969); State v. Carter,
243 Conn. 392, 397, 703 A.2d 763 (1997).
In State v. Niblack, supra, 220 Conn. 281, our Supreme
Court iterated that ‘‘our state courts are under no consti-
tutionally imposed duty to establish a factual basis for
a guilty plea prior to its acceptance unless the judge is
put on notice that there may be some need for such an
inquiry.’’ See also State v. Greene, supra, 274 Conn. 149;
State v. Velez, supra, 30 Conn. App. 21. This rule was
applied in the context of an Alford plea in Ghant v.
Commissioner of Correction, 255 Conn. 1, 14–15, 761
A.2d 740 (2000); see also Baillargeon v. Commissioner
of Correction, 67 Conn. App. 716, 730, 789 A.2d 1046(2002) (our procedural rules do not require factual basis
for court to accept Alford plea).9 Put another way, a
factual basis is but one way of satisfying the require-
ment that a plea be knowing and voluntary. Paulsen v.
Manson, supra, 203 Conn. 491.
In the present case, the operative petition alleged a
broad claim of illegal confinement as a result of the
petitioner’s conviction for the kidnapping offenses that
was obtained in violation of his federal and state consti-
tutional rights. The petitioner, however, failed to
include a specific claim that his pleas were not made
knowingly, intelligently and voluntarily as a result of
the subsequent modification to the intent requirement
for kidnapping charges as set forth in Salamon. ‘‘In a
writ of habeas corpus alleging illegal confinement the
application must set forth specific grounds for the issu-
ance of the writ including the basis for the claim of
illegal confinement. . . . [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.’’ (Internal quotation marks omitted.)
Thiersaint v. Commissioner of Correction, 316 Conn.
89, 125, 111 A.3d 829 (2015); Zuberi v. Commissioner
of Correction, 140 Conn. App. 839, 844–45, 60 A.3d 337,
cert. denied, 308 Conn. 931, 64 A.3d 330 (2013).
During the habeas trial, the petitioner’s counsel asked
Meredith if he was aware that cases regarding the kid-
napping statutes were before our Supreme Court at
the time he had advised the petitioner and when the
petitioner entered his pleas. Meredith responded in the
negative. The petitioner testified that he questioned
Meredith as to how his conduct could have fallen within
the statutory parameters of kidnapping. The petitioner
further stated that he was willing to challenge the law
and file an appeal if necessary. He indicated that as a
result of Meredith’s indifference to his circumstances,
the petitioner felt ‘‘helpless [and] powerless . . . .’’
After further testimony, the petitioner indicated that he
had agreed to the Alford pleas because he ‘‘believed
at the time that [his] conduct constituted the charge
of kidnapping.’’
The issue of whether the petitioner’s pleas were not
knowingly and voluntarily entered and, therefore, a vio-
lation of due process, was not addressed at any point
during the habeas trial.10 There was no indication at the
habeas trial that the petitioner raised the specific legal
claim that his Alford pleas were not knowing, intelligent
and voluntary, and therefore a violation of due process.
At no point did the petitioner raise the issue of the need
for an inquiry into the factual basis of the pleas. The
petitioner did indicate that, if he had known of the
pending cases before our Supreme Court at the time
of his pleas, he would have insisted on going to trial even
if he had been sentenced to more than eight decades of
incarceration. This statement, however, applied to his
claim of ineffective assistance of counsel and did not
alert the habeas court to the due process claim that he
subsequently has raised in this appeal.
In his posttrial brief, the petitioner argued that § 53a-
92 was held to be unconstitutional by our Supreme
Court in State v. Salamon, supra, 287 Conn. 509, and
its progeny, and that those decisions could be applied
retroactively pursuant to Luurtsema v. Commissioner
of Correction, supra, 299 Conn. 740. He then asserted
that ‘‘[u]nder the Salamon-Sanseverino interpretation
of the kidnapping statute, and the following case law,
no reasonable interpretation of the facts alleged here
can constitute the basis of a kidnapping conviction
under current law, and as such the convictions for kid-
napping [in the first degree], and [attempt to commit
kidnapping in the first degree] should be vacated, and
the petitioner argues, dismissed a matter of law.’’ Essen-
tially, the posttrial brief clarified his argument to the
habeas court that there was insufficient evidence, fol-
lowing Salamon, to sustain his conviction of the kidnap-
ping offenses.
The failure of the petitioner to raise the due process
claim that his pleas were not knowing and voluntary
before the habeas court is fatal to his appeal. It is well
established that ‘‘this court is not bound to consider
any claimed error unless it appears on the record that
the question was distinctly raised at trial and was ruled
upon and decided by the court adversely to the appel-
lant’s claim. . . . It is equally well settled that a party
cannot submit a case to the trial court on one theory
and then seek a reversal in the reviewing court on
another.’’ (Citations omitted; internal quotation marks
omitted.) Mitchell v. Commissioner of Correction, 156
Conn. App. 402, 408–409, 114 A.3d 168, cert. denied,
317 Conn. 904, 114 A.3d 1220 (2015); see also Greene
v. Commissioner of Correction, 131 Conn. App. 820,
822, 29 A.3d 171 (2011) (having not raised issue before
habeas court petitioner was barred from raising it on
appeal), cert. denied, 303 Conn. 936, 36 A.3d 695 (2012);
Lewis v. Commissioner of Correction, 117 Conn. App.
120, 126, 977 A.2d 772 (to review claim not raised before
and decided by habeas court adversely to appellant
would amount to ambuscade of habeas judge), cert.
denied, 294 Conn. 904, 982 A.2d 647 (2009); see generally
Thiersaint v. Commissioner of Correction, supra, 316
Conn. 126–28.
In the present case, the petitioner alleged in the oper-
ative petition a broad claim of a constitutional violation
but did not include a distinct allegation that his pleas
were not knowing, intelligent and voluntary as a result
of Salamon. See, e.g., Davis v. Commissioner of Cor-
rection, 160 Conn. App. 444, 451, 124 A.3d 992, cert.
denied, 319 Conn. 957, 125 A.3d 1012 (2015). The ambi-
guity of the pleading failed to place the habeas court
on notice of this specific claim. Id., 452–53; see also
Newland v. Commissioner of Correction, 322 Conn.
664, 678–79, 142 A.3d 1095 (2016) (habeas petition con-
tained no allegation of claim raised on appeal and peti-
tioner never attempted to amend petition to include
such allegation pursuant to Practice Book § 23-32). Fur-
ther, during the trial, the petitioner did not notify or
advise the habeas court that his due process claim of
pleas that were not knowing, intelligent and voluntary
was imbedded within the allegations of the operative
petition. See Davis v. Commissioner of Correction,
supra, 453–54. Simply put, the claim raised in this appeal
was not distinctly raised before the habeas court. On
that basis, we are unable to review it. See, e.g., Hender-
son v. Commissioner of Correction, 129 Conn. App.
188, 198, 19 A.3d 705, cert. denied, 303 Conn. 901, 31
A.3d 1177 (2011).
The judgment is affirmed.
In this opinion the other judges concurred.
1
‘‘Under North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed.
2d 162 (1970), a criminal defendant is not required to admit his guilt . . .
but consents to being punished as if he were guilty to avoid the risk of
proceeding to trial. . . . A guilty plea under the Alford doctrine is a judicial
oxymoron in that the defendant does not admit guilt but acknowledges that
the state’s evidence against him is so strong that he is prepared to accept
the entry of a guilty plea nevertheless.’’ (Internal quotation marks omitted.)
State v. Robles, 169 Conn. App. 127, 128 n.1, A.3d (2016). A defendant
often pleads guilty under the Alford doctrine ‘‘to avoid the imposition of a
possibly more serious punishment after trial.’’ (Internal quotation marks
omitted.) State v. Peterson, 51 Conn. App. 645, 647 n.1, 725 A.2d 333, cert.
denied, 248 Conn. 905, 731 A.2d 310 (1999).
2
At the time of sentencing, the petitioner had been incarcerated for
approximately twenty months.
3
See State v. Sanseverino, 287 Conn. 608, 949 A.2d 1156 (2008), overruled
in part by State v. DeJesus, 288 Conn. 418, 437, 953 A.2d 45 (2008), and
superseded in part after reconsideration by State v. Sanseverino, 291 Conn.
574, 969 A.2d 710 (2009).
4
In Luurtsema, our Supreme Court held that ‘‘Salamon should be afforded
fully retroactive effect in this particular case’’ as a matter of state common
law. Luurtsema v. Commissioner of Correction, supra, 299 Conn. 751. The
retroactivity rule of Luurtsema, however, does not apply necessarily in
every case: ‘‘We . . . conclude that, when an appellate court provides a
new interpretation of a substantive criminal statute, an inmate convicted
under a prior, more expansive reading of the statute presumptively will be
entitled to the benefit of the new interpretation on collateral attack. We
decline, however, the petitioner’s invitation to adopt a per se rule in favor
of full retroactivity. We do so because a review of the diverse contexts in
which such challenges have arisen persuades us that there are various
situations in which to deny retroactive relief may be neither arbitrary nor
unjust.’’ (Emphasis added.) Id., 760.
5
The habeas court cited to United States v. Scruggs, 916 F. Supp. 2d 670,
672 (N.D. Miss. 2012), aff’d, 714 F.3d 258 (5th Cir. 2013), where the defendant,
Richard F. Scruggs, filed a motion to vacate and set aside his conviction
following his guilty plea. Scruggs claimed that, following the United States
Supreme Court’s decision in Skilling v. United States, 561 U.S. 358, 130 S.
Ct. 2896, 177 L. Ed. 2d 619 (2010), he was ‘‘actually innocent of the crime
to which he pled guilty.’’ United States v. Scruggs, supra, 674. The District
Court concluded that Scruggs bore a heavy burden to overcome procedural
default and prevail on this motion to set aside the verdict. Id., 675. It noted
that Scruggs had to prove his actual innocence of the crime that he had
pleaded guilty to, as well as the charges dismissed in the original indictment.
Id. ‘‘To establish actual innocence, [a] petitioner must demonstrate that, in
light of all of the evidence, it is more likely than not that no reasonable
juror would have convicted him. . . . The actual innocence standard does
not merely require a showing that a reasonable doubt exists in the light of
the new evidence, but rather that no reasonable juror would have found
the defendant guilty. . . . The standard is not satisfied where at least one
juror, acting reasonably and properly instructed, would vote to convict the
petitioner.’’ (Citations omitted; internal quotation marks omitted.) Id.,
675–76.
In Barile v. Warden, Superior Court, judicial district of Tolland, Docket
No. CV-10-4003798, 2013 WL 4873478, *5 (August 13, 2013), also cited by
the habeas court in the present case, the court used the ‘‘actual innocence’’
standard from Scruggs. In Barile, the petitioner pleaded guilty to, inter alia,
six counts of kidnapping in the first degree. In count two of his habeas
petition, he alleged that his kidnapping conviction was obtained in violation
of his right to due process because it was based on conduct that subsequently
was determined not to be a crime in Salamon. He also alleged that his plea
was not knowing, intelligent and voluntary ‘‘as a result of the substantive
narrowing of the definition of kidnapping by the Salamon case.’’ Barile v.
Warden, supra, *2.
The respondent in Barile argued that the petitioner’s claim that his plea
was not knowingly, intelligently and voluntarily made was essentially a
sufficiency challenge and had been waived as a result of his guilty plea.
The petitioner countered that his claim was not a sufficiency challenge, but
rather one of actual innocence. The habeas court in Barile agreed with the
petitioner and applied the ‘‘actual innocence’’ standard from Scruggs. Barile
v. Warden, supra, 2013 WL 4873478, *5.
In his brief to this court, the petitioner claims that the habeas court’s
use of the actual innocence standard was improper. We conclude that the
petitioner did not make a claim of actual innocence before either the habeas
court or this court. After a thorough review of the record, it appears that
the petitioner challenged the sufficiency of the evidence before the habeas
court. Specifically, he argued that there was nothing in the record to support
the intent element for the kidnapping offenses following Salamon, and
therefore his pleas were not valid.
On appeal, the petitioner unquestionably raises a due process challenge
with respect to his pleas to the kidnapping offenses. As we explain in this
opinion, this claim raised on appeal was not presented to the habeas court.
As a result of our conclusion that the petitioner failed to raise his specific
challenge that his pleas were not made knowingly and voluntarily as a result
of the Salamon and Luurtsema decisions, and therefore we need not address
it on the merits, we decline to discuss the propriety of the use of the actual
innocence standard by the habeas court.
6
Specifically, the habeas court found ‘‘the petitioner’s testimony [to be]
self-serving, equivocal and utterly lacking in credibility.’’
7
The petitioner has not appealed from the denial of his ineffective assis-
tance of counsel claim.
8
‘‘A factual basis exists where the facts before the court are sufficient to
establish each and every element of the crime charged. . . . In determining
whether a factual basis exists, the court may consider the facts recited by
the state’s attorney as well as any other facts properly submitted to the
court which supports a conviction.’’ (Citation omitted; internal quotation
marks omitted.) State v. Turner, 91 Conn. App. 17, 21, 879 A.2d 471, cert.
denied, 276 Conn. 910, 886 A.2d 424 (2005).
9
It was recognized, however, that ‘‘[a] court may nevertheless, in its
discretion, require a factual basis before accepting a nolo contendere or
Alford plea.’’ Baillargeon v. Commissioner of Correction, supra, 67 Conn.
App. 730 n.10.
10
The habeas court’s memorandum of decision stated: ‘‘The petitioner
alleges that his guilty plea was not knowing, intelligent and voluntary as a
result of the substantive narrowing of the definition of kidnapping by the
Salamon case.’’ Despite this statement by the habeas court, the habeas court
did not conduct an analysis of this due process claim. Instead, the court
first rejected the respondent’s defense of procedural default. It then applied
the actual innocence standard and found ‘‘that there [was] a probability that
at least one reasonable juror, properly instructed under Salamon, could
have concluded that the petitioner’s restraint, and attempted restraint, of
the victims was not merely incidental to the sexual assault and voted to
convict him at trial.’’ It did not discuss whether a due process violation
resulting from pleas that were not made knowingly and voluntarily had
occurred.
As noted in footnote 5 of this opinion, the habeas court cited to Barile
v. Warden, Superior Court, judicial district of Tolland, Docket No. CV-10-
4003798, 2013 WL 4873478 (August 13, 2013), a case in which the petitioner
had alleged that his plea was not knowing, intelligent and voluntary as a result
of the substantive narrowing, in Salamon, of the definition of kidnapping. In
response to the respondent’s special defense of waiver in that case, the
petitioner argued that his claim was one of actual innocence. The habeas
court in Barile agreed with the petitioner and decided that case on the basis
of whether the petitioner had satisfied that actual innocence standard. Barile
v. Warden, supra, *5. In other words, the court in that case focused its
analysis on the claim of actual innocence, despite mentioning the issue of
whether the plea was constitutionally valid. Similarly, in the present case,
although the court mentioned, in an isolated statement, that the petitioner’s
claim was that his plea was not knowing, intelligent and voluntary, we
conclude that it considered the claim to be one of actual innocence. But
see footnote 5 of this opinion (petitioner did not make claim of actual
innocence). The substance of the court’s reasoning supports this conclusion.
We further iterate that the petitioner did not specifically plead a due process
claim based on a plea that was not knowing and voluntary, nor did he
mention this specific issue during the habeas trial.