Anderson v. Commissioner of Correction

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FRANCIS ANDERSON v. COMMISSIONER
OF CORRECTION
(AC 41434)
Lavine, Keller and Devlin, Js.
Syllabus
The petitioner, who had been convicted of assault in the second degree and
reckless endangerment in the second degree, sought a writ of habeas
corpus, claiming that the conditions of his confinement were illegal
because he was receiving constitutionally inadequate mental health
treatment. The petitioner was an insanity acquittee who had been con-
fined to a state psychiatric hospital at the time of his crimes. During
the petitioner’s sentencing hearing, the trial court heard testimony from
a psychologist that the petitioner should be transferred to a specialized
behavioral unit in a prison in Maine that provided the treatment program
she had recommended for the petitioner. The court did not order that
the petitioner be returned to the hospital but remanded him instead
to the custody of the respondent, the Commissioner of Correction.
Subsequent to the filing of his habeas petition, the petitioner filed an
emergency motion for an expedited hearing to compel the Department
of Correction to follow the psychologist’s treatment recommendations.
After the respondent filed a motion to consolidate the emergency motion
with the habeas trial, the court conducted a status conference on the
motion to consolidate but did not grant the motion or specify if, at the
next scheduled court date, there would be a hearing on the emergency
motion or a consolidated habeas trial. During the proceeding before the
habeas court, discussion between counsel and the court indicated that
it was the court’s intention to conduct the emergency hearing rather
than a lengthy trial. After the hearing, the court issued an oral decision
in which it rendered judgment denying the habeas petition. The peti-
tioner then filed a motion for reconsideration, alleging that because the
proceeding had been a hearing solely on his emergency motion, his
rights to procedural due process were violated on the grounds that he
had no notice that his habeas petition also would be decided and that
he was denied a meaningful opportunity to be heard. The court granted
the motion for reconsideration and affirmed its denial of the habeas
petition. The court thereafter granted the petitioner certification to
appeal, and the petitioner appealed to this court. Held that the ambigu-
ities in the habeas proceeding should be interpreted in favor of the
petitioner, as he reasonably believed that he was proceeding solely on
his emergency motion and that his habeas trial would occur at a later
date: the court, during the status conference, never formally granted
the respondent’s motion to consolidate, which resulted in the petitioner’s
uncertainty regarding the purpose of the subsequent proceeding, the
colloquy during the status conference between the court and the respon-
dent’s counsel compounded the ambiguity, and the court scheduled the
subsequent hearing for one-half day, which seemingly suggested that it
was bifurcating the adjudication of the emergency motion and the habeas
petition; moreover, the petitioner had sought a continuance solely for
the hearing on his emergency motion, which the court granted without
clarification that it would also schedule the habeas trial for that date,
the habeas court thereafter repeatedly indicated that the matter before
it was only the emergency motion, although the court appeared con-
flicted on the status of the case, as it suggested both that the emergency
motion already had been resolved and that the proceeding before it was
an expedited habeas trial, and the fact that the pleadings were not closed
at the time of the proceeding before the habeas court supported the
petitioner’s belief that the proceeding scheduled for that date would
not be a trial on his habeas petition; accordingly, the judgment was
reversed and the case was remanded for further proceedings because,
to hold otherwise, would deprive the petitioner of his procedural due
process rights to be duly notified of the nature of the pending proceeding
and to present fully his evidence and arguments to the court.
Argued February 13—officially released June 23, 2020
Procedural History
Petition for a writ of habeas corpus, brought to the
Superior Court in the judicial district of Tolland, where
the petitioner filed an emergency motion for a tempo-
rary order to compel the provision of certain mental
health treatment recommendations; thereafter, the case
was tried to the court, Hon. Edward J. Mullarkey, judge
trial referee; judgment denying the petition; subse-
quently, the court granted the petitioner’s motion for
reconsideration and affirmed the judgment denying the
petition, and the petitioner, on the granting of certifica-
tion, appealed to this court. Reversed; further pro-
ceedings.
Jennifer B. Smith, assigned counsel, with whom, on
the brief, was Darcy McGraw, assigned counsel, for
the appellant (petitioner).
Steven R. Strom, assistant attorney general, with
whom, on the brief, was William Tong, attorney gen-
eral, for the appellee (respondent).
Opinion
DEVLIN, J. The petitioner, Francis Anderson, appeals
from the judgment of the habeas court denying his
petition for a writ of habeas corpus, which alleged that
the conditions of his confinement were illegal because
he was receiving constitutionally inadequate mental
health treatment while he was in the custody of the
respondent, the Commissioner of Correction. On
appeal, the petitioner argues that the habeas court vio-
lated his right to procedural due process under the
fourteenth amendment to the United States constitution
by failing to provide him adequate notice of the habeas
trial and denying him a meaningful opportunity to be
heard. We reverse the judgment of the habeas court.1
The following facts and procedural history, as pre-
viously set forth by our Supreme Court and this court,
are relevant. ‘‘The [petitioner] . . . has an extensive
history of psychiatric problems and involvement with
the criminal justice system. He has spent much of his
adult life either incarcerated or in other institutionalized
settings. Following an incident that occurred on or
about July 6, 2012, the [petitioner] was charged with
assault of a correction officer, breach of the peace and
failure to submit to fingerprinting. The [petitioner] sub-
sequently was found not guilty of these charges by
reason of mental disease or defect. On August 15, 2013,
the trial court, McMahon, J., committed the [petitioner]
to the custody of the Commissioner of Mental Health
and Addiction Services. The [petitioner] was trans-
ferred to the Whiting Forensic Division of Connecticut
Valley Hospital [Whiting] . . . .
‘‘Upon arriving at [Whiting], the [petitioner] allegedly
commenced a pattern of assaulting other patients and
hospital staff. As a result of his conduct on various
dates from October, 2013, through February, 2014, he
was charged with several misdemeanors. Thereafter, in
April, 2014, he was charged with, inter alia, two counts
of assault of health care personnel, a class C felony.
See General Statutes § 53a-167c. In connection with all
but one of these charges, the [petitioner] was released
on a promise to appear and ordered returned to [Whit-
ing]. Also, in April, 2014, the state filed a motion for
bond review, in which it requested that the trial court
modify the [petitioner’s] existing conditions of release
and impose an ‘appropriate’ monetary bond. . . .
‘‘On June 18, 2014, the trial court, Gold, J., concluded
that, although the [petitioner] was a confined insanity
acquittee, the court retained the authority, conferred
by General Statutes § 54-64a and Practice Book § 38-4,
to set a monetary bond upon his commission of new
offenses in the hospital setting, particularly for the pur-
pose of ensuring the safety of other persons. . . . On
August 25, 2014 . . . the court set a bond in the amount
of $100,000, cash or surety. Because the [petitioner]
was unable to post that bond, he was transferred to
the custody of the Commissioner of Correction.’’ (Foot-
notes omitted.) State v. Anderson, 319 Conn. 288, 292–
97, 127 A.3d 100 (2015) (Anderson I). ‘‘The [respondent]
thereafter directed that the [petitioner] be confined at
Northern Correctional Institution [Northern].’’ Id., 297
n.16. On appeal to our Supreme Court, the court
affirmed the trial court’s imposition of a monetary bond.
Id., 290–92. The court further held that, ‘‘[i]f, however,
at any time, the [petitioner] believes that the treatment
he is receiving is inadequate, he may pursue an expe-
dited petition for a writ of habeas corpus challenging
the conditions of his confinement.’’ Id., 325.
Subsequently, ‘‘[a]s a result of the incidents that
occurred while he was at Whiting, the [petitioner] was
convicted, after a court trial, of one count of assault in
the second degree in violation of General Statutes § 53a-
60 (a) (3) and four counts of reckless endangerment in
the second degree in violation of General Statutes § 53a-
64 (a). At the [petitioner’s] sentencing hearing, the pros-
ecutor argued that sending the [petitioner] back to Whit-
ing was not a viable option due to his repeated ‘violent
propensities toward staff, patients and inmates . . . .’
Before articulating the [petitioner’s] position at the sen-
tencing hearing, defense counsel called Dr. Madelon V.
Baranoski, a forensic psychologist who met with and
evaluated the [petitioner], to testify. Baranoski testified,
inter alia, that Whiting was not a suitable placement
for the [petitioner]. In his remarks to the court, defense
counsel explained the unique circumstances of the
[petitioner]: ‘He’s a convicted criminal defendant
awaiting sentencing . . . . He’s [an] involuntarily com-
mitted insanity acquittee under the [jurisdiction of the
Psychiatric Security Review Board].’ Defense counsel
argued that it was inappropriate to punish an insanity
acquittee by incarceration, but acknowledged that ‘the
only practical options [for the petitioner] are available
through the correction system . . . .’ [Defense coun-
sel] explained that ‘he can’t go back to Whiting
untreated, and he shouldn’t go back to Whiting,
according to Dr. Baranoski, at all . . . .’ ’’ State v.
Anderson, 187 Conn. App. 569, 578–79, 203 A.3d 683(Anderson II), cert. denied, 331 Conn. 922, 206 A.3d
764 (2019).
Instead, in a report commissioned by Dr. Baranoski
on the petitioner’s mental health, which was submitted
to the sentencing court, she recommended that ‘‘[the
petitioner] is a candidate for a specialized behavioral
unit that can provide integrated treatment including
medication, group treatment, affect management strate-
gies and opportunities to practice social engagement
and conflict management.’’ She noted that ‘‘[s]uch a
unit does not now exist in Connecticut’’ and strongly
encouraged that the petitioner be transferred to a new
facility. In particular, Dr. Baranoski recommended a
maximum security prison in Warren, Maine, that pro-
vides the treatment program she recommended for
the petitioner.
Ultimately, ‘‘[t]he court imposed a sentence of seven
years [of] incarceration, suspended after five and one-
half years, and two years [of] probation to be served
consecutively to the . . . sentence that he was then
serving. The court thereupon ordered that the [peti-
tioner] be remanded to the custody of the [respondent]
instead of returned to Whiting.’’ Anderson II, supra, 187
Conn. App. 580. In issuing the sentencing order, the
court further ‘‘order[ed] that the [petitioner] receive
mental health treatment to include a behavioral man-
agement approach or other specialized approach as
recommended by Dr. Baranoski to include medication
or in the alternative consideration for placement out
of state at . . . the maximum security prison in War-
ren, Maine . . . referenced in Dr. Baranoski’s report
. . . .’’ On appeal, this court affirmed the petitioner’s
sentence. Anderson II, supra, 585–86.
On June 13, 2017, the petitioner filed a self-repre-
sented petition for a writ of habeas corpus, alleging
that the conditions of his confinement were illegal
because he was receiving constitutionally inadequate
mental health treatment. Along with his petition, the
petitioner simultaneously filed, with the assistance of
a senior assistant public defender, a motion to refer his
petition to the public defender’s office for the appoint-
ment of counsel. On June 20, 2017, the court, Oliver,
J., granted the motion, and the petitioner’s counsel filed
her appearance on July 5, 2017.
On December 12, 2017, the petitioner filed an emer-
gency motion for a temporary order seeking to compel
the Department of Correction (department) to follow
Dr. Baranoski’s treatment recommendations contained
in her report, which was attached as an exhibit. In his
emergency motion, the petitioner offered allegations
similar to those in his habeas petition and expanded
on his claim that he was receiving constitutionally inad-
equate mental health treatment. In particular, the peti-
tioner alleged that the department was not following
Dr. Baranoski’s treatment recommendations and had
not undertaken any action to improve the petitioner’s
mental health. The motion further alleged that, instead,
the department was subjecting the petitioner to
extended periods of isolated confinement, directly con-
trary to Dr. Baranoski’s recommendations. The peti-
tioner also requested ‘‘an expedited hearing, in accor-
dance with . . . Anderson [I],’’ on the emergency
motion and quoted the portion of Anderson I entitling
him to an expedited habeas petition to challenge the
conditions of his confinement. See Anderson I, supra,
319 Conn. 299.
In response, on January 2, 2018, the respondent
moved to consolidate the hearing on the petitioner’s
emergency motion with a trial on the merits of the
habeas petition. The respondent argued that the relief
sought in the petitioner’s emergency motion was identi-
cal to the relief requested in his habeas petition. The
respondent therefore contended that a subsequent trial
would almost certainly result in duplicative submis-
sions of identical evidence and a waste of judicial
resources, thus necessitating a consolidation of both
proceedings. The respondent also noted that he had no
objection to an expedited habeas trial.
On January 5, 2018, the court, Kwak, J., held a status
conference at which the parties addressed the respon-
dent’s motion to consolidate. At the status conference,
the petitioner objected to the motion to consolidate,
arguing that the emergency motion requested separate
remedies from those he sought by means of the habeas
petition. In response, the respondent reiterated that,
although there was no objection to holding an expedited
trial, holding a separate hearing on the motion and a
trial on the merits of the petition would result in two
identical trials. The respondent then indicated that a
consolidated proceeding would require at least one full
day of trial. This prompted the following colloquy:
‘‘The Court: At least a day?
‘‘[The Petitioner’s Counsel]: Yeah. It’s basically, Your
Honor, I believe the case would entail the testimony of
competing expert witnesses and probably one or two
fact witnesses from the [department].
‘‘The Court: Okay. Well, if you need another day, then
we’ll have to pick another day but—or at least [an]
available date. All right. [The petitioner], he’s . . .
grieved me previously. So, I don’t know if I should be
on this case or not, but . . . . So . . . the earliest date
would be . . . . It was a January 26th date, but that’s
before me and obviously I can’t do that.
‘‘[The Petitioner’s Counsel]: I see.
‘‘The Court: So, let’s see what the next [date] would
be that’ll be available.
‘‘[The Respondent’s Counsel]: So, I’m not opposing
the notion of the next [date] to have a hearing in.
‘‘The Court: Okay.
‘‘[The Respondent’s Counsel]: And if it has to be bifur-
cated with—in two parts, that’s the way it’ll be.
‘‘The Court: Okay.
‘‘[The Clerk]: Your Honor, we have a morning avail-
able on [January 30, 2018].
‘‘The Court: Just a half day, though? . . . .
‘‘[The Clerk]: [January 30]. We have a half a day.
‘‘The Court: Do you want half a day or you want a
full day?
‘‘[The Petitioner’s Counsel]: Well, I think probably
it’s going to take a whole day, but, you know, we, as
the petitioner, will take what we can get.
‘‘[The Respondent’s Counsel]: We’re not opposing
any, you know, expedited—
‘‘The Court: All right. Then, we’ll take the half a day
on January 30th, which is the earliest available.’’
Immediately following this discussion, the court
adjourned. Judge Kwak never expressly granted the
motion to consolidate, nor did he specify whether the
scheduled court date would be a hearing on the emer-
gency motion or a consolidated trial. On January 22,
2018, the respondent filed a return to the petition for
a writ of habeas corpus, raising four special defenses:
(1) the petitioner had not stated a claim for which relief
can be granted; (2) the petitioner’s injuries, if any, were
not of a constitutional dimension; (3) the petitioner’s
claims were barred by res judicata or collateral estop-
pel; and (4) the habeas court lacked jurisdiction to order
the petitioner returned to Whiting. On January 29, 2018,
the petitioner filed a case flow request to reschedule the
‘‘hearing on emergency application for [a] temporary
order’’ to February 1, 2018, which the court granted on
January 30, 2018. As of February 1, 2018, the petitioner
had not filed a reply to the respondent’s return and the
pleadings were not yet closed.2
On February 1, 2018, the habeas court, Hon. Edward
J. Mullarkey, judge trial referee, commenced the pro-
ceeding, explaining that ‘‘[w]e have an emergency hear-
ing today that was granted by—from the file, it’s either
Judge Kwak or Judge Oliver. . . . And we’re going to
hold it today. And we’re pretty much going to finish it
today.’’ The petitioner then presented testimony from
Dr. Baranoski along with testimony from three mental
health care professionals employed by the department:
Mark Frayne, a supervising psychologist; Gerard Gagne,
a psychiatrist; and Craig Burns, the director of psychiat-
ric services for the department.
In the course of the proceeding, there was further
discussion between the court and the attorneys that
indicated the court’s intent to hold only a shortened and
expedited hearing, rather than a lengthy trial. Before the
petitioner called Dr. Burns to testify, the court indicated
that the petitioner should expect to finish presenting his
evidence that day. In response, the petitioner’s counsel
raised concerns that she would not be able to complete
her presentation of the evidence in that time frame.
Once Dr. Baranoski and the three other mental health
professionals had testified, the petitioner wanted to
have Dr. Baranoski respond to the testimony of the
three mental health professionals, which prompted
this colloquy:
‘‘The Court: Is that going to be your last witness in
this case?
‘‘[The Petitioner’s Counsel]: Today.
‘‘The Court: No, in the case.
‘‘[The Petitioner’s Counsel]: I think that there is an
open question about whether or not there are additional
issues in this case. This case started out with a habeas.
In that habeas, I filed an emergency motion. Judge—
‘‘The Court: That some judge granted.
‘‘[The Petitioner’s Counsel]: Which the judge granted.
That’s why we’re here today. Originally, we were sup-
posed to have a half-day. Now, we’ve had a whole day.
[The respondent’s counsel] filed a pleading . . . in
which he took the position that the habeas itself and
the emergency hearing should [be] collapsed into one
matter.
‘‘The Court: Yes. I read all of this stuff. . . . I got a
simple question. You got any other witnesses?
‘‘[The Petitioner’s Counsel]: Not in this hearing,
except that I would like to—
‘‘The Court: What about the [department] officers
[who’ve] been sitting outside all day?
‘‘[The Petitioner’s Counsel]: No.
‘‘[The Respondent’s Counsel]: So, that’s an abuse of
the subpoena, Your Honor. . . .
‘‘The Court: No, no, no, no.
‘‘[The Respondent’s Counsel]: It’s, it’s, it’s infuriating.
I don’t think that’s a good faith use of the subpoena,
quite frankly.
‘‘The Court: We’re not, we’re not raising any more
issues. This is an emergency hearing. It should be over
. . . in the next half hour. . . . Otherwise it’s not an
emergency . . . and was mispleaded. . . .
‘‘[The Petitioner’s Counsel]: I would like to say—
‘‘The Court: I don’t care what you like. Sit down. You
want to call Dr. Baranoski, you call her, but that will
be . . . your last [witness].’’
Thereafter, following arguments from counsel for
both parties, the court issued its decision from the
bench. The court concluded that the petitioner had
failed to establish that the department was deliberately
indifferent to his mental health. The court then con-
cluded by holding: ‘‘[The] petitioner not having met his
burden, the petition for [a] writ of habeas corpus is
denied. You may have an exception.’’ The court
adjourned the proceeding immediately thereafter.
On February 13, 2018, the petitioner filed a motion
for reconsideration, arguing that the proceeding on Feb-
ruary 1, 2018, solely was a hearing on the petitioner’s
emergency motion and that the petitioner’s procedural
due process rights were violated because he had
received no notice that the court would also be deciding
his habeas petition and was denied a meaningful oppor-
tunity to be heard. The petitioner, therefore, requested
that the court reconsider its decision and allow the
petitioner sufficient time to prepare and present his
argument in support of his habeas petition in the course
of a full trial on its merits. The court granted the motion
for reconsideration on February 15, 2018. In its order,
the court reiterated that the petitioner had failed to
meet his burden of proof and once again denied the
habeas petition. On February 13, 2018, the petitioner
filed a petition for certification to appeal, which the
court granted on February 15, 2018. This appeal
followed.3
On appeal, the petitioner claims that the habeas court
violated his rights to procedural due process by denying
the habeas petition without providing adequate notice
that it was holding a trial on the merits of the habeas
petition and without affording him a meaningful oppor-
tunity to be heard. We agree.
We begin with the standard of review and general
principles relevant to the petitioner’s procedural due
process claim. ‘‘Whether the court violated the [petition-
er’s] constitutional procedural due process rights is a
question of law over which our review is plenary.’’ Mer-
kel v. Hill, 189 Conn. App. 779, 786, 207 A.3d 1115 (2019).
‘‘[F]or more than a century the central meaning of pro-
cedural due process has been clear: Parties whose
rights are to be affected are entitled to be heard; and
in order that they may enjoy that right they must first
be notified. . . . It is equally fundamental that the right
to notice and an opportunity to be heard must be
granted at a meaningful time and in a meaningful man-
ner. . . . Due process, unlike some legal rules, is not
a technical conception with a fixed content unrelated
to time, place and circumstances. . . . Instead, due
process is a flexible principle that calls for such proce-
dural protections as the particular situation demands.
. . . [T]hese principles require that a [party] have . . .
an effective opportunity to defend by confronting any
adverse witnesses and by presenting his own arguments
and evidence orally.’’ (Citation omitted; internal quota-
tion marks omitted.) In re DeLeon J., 290 Conn. 371,
378, 963 A.2d 53 (2009).
We agree with the petitioner that there was ambiguity
as to whether the court proceeding scheduled for Febru-
ary 1, 2018, was a hearing on the emergency motion or
a full trial on the merits of the habeas petition. During
the status conference, Judge Kwak never formally
granted the respondent’s motion to consolidate,
resulting in the petitioner’s understandable uncertainty
regarding the purpose of the subsequent proceeding.
Moreover, the colloquy between the court and the
respondent’s counsel compounded the ambiguous
nature of the proceedings. The respondent’s counsel
remarked that a consolidated proceeding would take
at least one full day of trial while conceding that, ‘‘if
it has to be bifurcated’’ to accommodate the court’s
schedule, ‘‘that’s the way it’ll be.’’ The court thereafter
scheduled the subsequent hearing for only one-half day,
seemingly suggesting that it was bifurcating the adjudi-
cation of the emergency motion and the habeas petition
per the respondent’s request. Without further clarifica-
tion from the respondent’s counsel on what the ‘‘it’’
was that should be bifurcated, one reasonable assump-
tion was that Judge Kwak had bifurcated the proceed-
ings and, thus, the next court date would only be a
hearing on the emergency motion. Furthermore, the
petitioner sought a continuance solely for the ‘‘hearing
on emergency application for [a] temporary order’’ to
reschedule the hearing to February 1, 2018, which the
court granted without clarification that it would sched-
ule the habeas trial for that date as well.
Then, throughout the entirety of the February 1, 2018
proceeding, the habeas court repeatedly indicated that
the matter before it was only an ‘‘emergency hearing’’
and limited the petitioner’s ability to present evidence
accordingly. The court itself, though, appeared con-
flicted on the status of the case when it later commented
that ‘‘some judge [had] granted’’ the emergency motion,
thereby suggesting that the emergency motion had
already been resolved and the proceeding was, instead,
an expedited habeas trial. Last, when the respondent
raised several affirmative defenses in his return, the
petitioner was entitled to file a reply to any of the claims
that were not put in dispute by his habeas petition. See
Practice Book § 23-31 (a). Pursuant to Practice Book
§ 23-35 (c), the petitioner should have had until Febru-
ary 22, 2018, to file a reply. The fact that the pleadings
were not closed as of February 1, 2018, further supports
the petitioner’s belief that the proceeding scheduled for
that date would not be a trial on his habeas petition.
Given these facts and the fundamental nature of the
rights at issue in a petition for a writ of habeas corpus,
we conclude that the ambiguities in the proceeding
should be interpreted in favor of the petitioner.4 The
petitioner reasonably believed that he was proceeding
solely on his emergency motion and that his habeas
trial would occur at a later date. He, therefore, should
not be precluded from an opportunity to succeed on
the merits of his habeas petition. To hold otherwise
would deprive the petitioner of his procedural due pro-
cess rights to be duly notified of the nature of the
pending proceeding and to present fully his evidence
and arguments to the court.
The judgment is reversed and the case is remanded
for further proceedings consistent with this opinion.
In this opinion the other judges concurred.
1
In the alternative, the petitioner contends that the habeas court errone-
ously concluded that the Department of Correction (department) was not
acting with deliberate indifference to his serious mental health needs. We
acknowledge that the habeas court heard extensive evidence on this issue
and found that the respondent was not deliberately indifferent to his mental
health needs. Because, however, we conclude that the petitioner was not
afforded adequate notice and an opportunity to be heard on his habeas
petition, we need not reach the issue of whether the department was deliber-
ately indifferent.
2
Practice Book § 23-31 (a) provides: ‘‘If the return alleges any defense or
claim that the petitioner is not entitled to relief, and such allegations are
not put in dispute by the petitioner, the petitioner shall file a reply.’’
3
Specifically, the petitioner appeals from the judgments rendered on his
emergency motion, his habeas petition, and his motion for reconsideration.
Upon our review of the record, however, there is no indication that the
habeas court ever rendered judgment on the emergency motion. Instead, it
appears that, in the February 1, 2018 proceeding, the court’s judgment
addressed only the habeas petition. The petitioner’s appeal from his emer-
gency motion, therefore, is not properly before us due to the lack of a
final judgment.
4
We recognize that, because we remand the case for further proceedings,
factual issues resolved by the court during the underlying trial may well be
relitigated. We express no opinion as to what, if any, effect should be given
to the habeas court’s factual findings. See footnote 1 of this opinion.