Pierce v. Commissioner of Correction

************************************************ The “officially released” date that appears near the beginning of an opinion is the date the opinion will be published in the Connecticut Law Journal or the date it is released as a slip opinion. The operative date for the beginning of all time periods for the filing of postopinion motions and petitions for certification is the “officially released” date appearing in the opinion. All opinions are subject to modification and technical correction prior to official publication in the Connecti- cut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports. In the event of discrepancies between the advance release version of an opinion and the version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest version is to be considered authoritative. The syllabus and procedural history accompanying an opinion that appear in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced or distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ************************************************  Pierce v. Commissioner of Correction TYRONE PIERCE v. COMMISSIONER OF CORRECTION (AC 47542) Alvord, Seeley and Wilson, Js.* Syllabus The petitioner, who previously had been convicted of several crimes on pleas of nolo contendere, appealed, on the granting of certification, from the habeas court’s judgment dismissing his habeas petition, in which he alleged that the prosecutor at his criminal trial had improperly failed to timely disclose certain exculpatory documents prior to his pleas. He claimed, inter alia, that the court improperly determined that his claim was barred by the doctrine of res judicata. Held: The habeas court properly granted the motion to dismiss filed by the respon- dent, the Commissioner of Correction, and determined that the doctrine of res judicata required the dismissal of the petitioner’s habeas petition pursuant to the applicable rule of practice (§ 23-29 (3)), as the petitioner set forth the same ground that was raised in a prior petition and failed to show that the allegedly undisclosed documents would not have been reasonably available to him at the time of his prior petition, and, although the court incorrectly relied on the representations of the petitioner’s counsel in determining that the documents had been reasonably available to the petitioner at the time of the prior petition, that error was harmless in that it was unlikely to have affected the court’s ruling. Argued October 14, 2025—officially released September 22, 2026 Procedural History Amended petition for a writ of habeas corpus, brought to the Superior Court in the judicial district of Tolland, where the court, Newson, J., rendered judgment dismiss- ing the first count of the petition; thereafter, the court denied the petitioner’s petition for certification to appeal; subsequently, the court denied the remaining counts of the petition and rendered judgment thereon; thereafter, the court denied the petitioner’s petition for certifica- tion to appeal, and the petitioner appealed to this court, which reversed the judgment in part and remanded the case for further proceedings; subsequently, the case was tried to the court, Wagner, J.; judgment dismissing the * The listing of judges reflects their seniority status on this court as of the date of oral argument.  Pierce v. Commissioner of Correction petition, from which the petitioner, on the granting of certification, appealed to this court. Affirmed. Nicole P. Britt, assigned counsel, with whom, on the brief, was Christopher Y. Duby, assigned counsel, for the appellant (petitioner). Denise B. Smoker, senior assistant state’s attorney, with whom, on the brief, was Craig P. Nowak, state’s attorney, for the appellee (respondent). Opinion WILSON, J. Following the granting of certification to appeal, the petitioner, Tyrone Pierce,1 appeals from the judgment of the habeas court dismissing count one of his third amended petition for a writ of habeas corpus on the grounds that count one (1) is barred by the doctrine of res judicata and (2) fails to state a claim on which relief could be granted.2 The petitioner challenges both 1 We note that the petitioner spells his first name Tyronne, as evidenced by his handwritten signature throughout the habeas court file. For consistency, however, we maintain the use of Tyrone in this case in con- formity with the pleadings, judgment file and Appellate Court decision in his prior habeas appeal. See Pierce v. Commissioner of Correction, 221 Conn. App. 80, 301 A.3d 530 (2023); see also Flannery v. Singer Asset Finance Co., LLC, 312 Conn. 286, 289 n.1, 94 A.3d 553 (2014). 2 In its memorandum of decision, the habeas court stated that it “agrees with the respondent [the Commissioner of Correction] that the claim in count one fails to state a claim for which habeas relief may be granted and that the court, therefore, also lacks jurisdiction over the claim.” Although it does not affect our disposition of this appeal, we note that the court improperly reasoned that the petitioner’s failure to state a claim on which relief could be granted, which is a proper ground for dismissal, deprived it of subject matter jurisdiction. “Our jurisprudence has, at times, conflated the concepts of a lack of subject matter jurisdic- tion and the failure to state a claim upon which relief can be granted. Our Supreme Court, however, held in In re Jose B., 303 Conn. 569, 34 A.3d 975 (2012), that ‘the failure to allege an essential fact under a particular statute goes to the legal sufficiency of the complaint, not to the subject matter jurisdiction of the trial court.’ Id., 579. The court in In re Jose B. reasoned that ‘[t]his conclusion is consistent with the rule that every presumption is to be indulged in favor of jurisdiction . . . is consistent with the judicial policy preference to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court . . . by allowing the litigant, if possible,  Pierce v. Commissioner of Correction of these grounds. We conclude that the court properly dismissed count one because it is barred by the doctrine of res judicata.3 Accordingly, we affirm the judgment of the habeas court. The following undisputed procedural history under- lies this appeal. In 2008, the petitioner entered pleas of nolo contendere to charges of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A), sexual assault in the first degree in violation of Gen- eral Statutes (Rev. to 2003) § 53a-70 (a) (1), assault in the second degree in violation of General Statutes (Rev. to 2003) § 53a-60 (a) (1), and tampering with a witness in violation of General Statutes § 53a-151. The charges arose from incidents involving the petitioner and C, the petitioner’s former girlfriend, in July 2004. The court imposed a total effective sentence of ten years of incar- ceration, followed by fifteen years of special parole, to be served consecutively to a sentence that the petitioner was serving for having violated his probation. In December 2013, the petitioner filed a petition for a writ of habeas corpus as a self-represented party. In April 2019, after the court appointed counsel to repre- sent the petitioner, he filed a third amended petition. In count one of his third amended petition, the petitioner claimed that his right to due process, guaranteed by the federal and state constitutions, was violated because the prosecution failed to disclose “exculpatory or otherwise favorable evidence” in a timely manner prior to his nolo to amend the complaint to correct the defect . . . .’ (Citations omitted; internal quotation marks omitted.) Id. That same presumption in favor of jurisdiction applies equally to habeas courts. See, e.g., Stafford v. Commissioner of Correction, 207 Conn. App. 85, 94, 261 A.3d 791 (2021) (it is well established that, in determining whether court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged).” Rios v. Commissioner of Correction, 224 Conn. App. 350, 377–78, 312 A.3d 1059, cert. denied, 349 Conn. 910, 314 A.3d 601 (2024). 3 In light of our conclusion that the habeas court properly dismissed count one on the ground of res judicata, it is unnecessary for us to consider whether the court erred in concluding that count one failed to state a claim on which relief could be granted.  Pierce v. Commissioner of Correction contendere pleas. Specifically, the petitioner claimed, “[o]n July 10, 2004, the complainant in [his] criminal matter, [C], was the perpetrator of a home invasion style robbery and assault where the petitioner’s grandmother . . . was the victim.” The petitioner alleged that, prior to the time of his pleas, the prosecution did not disclose the following evidence related to C’s criminal conduct and the police investigation of C: (1) an official police docu- ment indicating that Officer Kent Lee of the Hartford Police Department, who had responded to the incident perpetrated by C and was given information that C was involved in the criminal conduct perpetrated against the petitioner’s grandmother, had “failed to document” the incident; (2) an official police document indicating that the Putnam Police Department had C in its custody in 2004 “with direct information from [C] that [C] was responsible for the [home invasion],” and that the Put- nam police did not take any action to inform the Hart- ford Police Department or to prosecute C; and (3) a July 11, 2004 dispatch log from the Dudley, Massachusetts Police Department “detailing that Dudley police officials were alerted by [the] Putnam police that [C] was in their custody and that she had confessed to her involvement with the Hartford home invasion of [the petitioner’s grandmother].” With respect to count one of his third amended habeas petition, the petitioner alleged that, if this informa- tion had been disclosed in a timely manner, there was a reasonable probability that “the result of [his] criminal proceeding would have been different and more favor- able to [him] in that [he] would have proceeded to trial and used that information in a manner favorable to [his] defense.” In count two, the petitioner alleged that he was deprived of the effective assistance of counsel at his criminal trial. In count three, the petitioner alleged that he was deprived of the effective assistance of counsel in connection with a prior habeas action, in which the court denied his petition.4 4 The petitioner, in a self-represented capacity, brought the prior habeas action in 2009. Following the appointment of counsel, the petitioner filed  Pierce v. Commissioner of Correction The respondent, the Commissioner of Correction, alleged in his return that the prosecutorial impropriety claim set forth in count one was barred by the doctrines of res judicata and collateral estoppel, the claim was successive because it could have been raised in the prior habeas action, and the claim was procedurally defaulted because it was not raised in the prior habeas action. The respondent requested that the court dismiss count one. In May 2019, the court, Newson, J., dismissed count one of the third amended petition pursuant to Practice Book § 23-29 (3).5 In its order, the court, relying on the doctrine of res judicata, stated: “Count one of the cur- rent petition raises a claim of prosecutorial misconduct because the state allegedly failed to disclose exculpatory information related to criminal conduct [C] is alleged to have engaged in against the petitioner’s grandmother in the Hartford . . . area the day before the incident for which the petitioner now stands convicted, and alleged failures by Hartford and other local police agencies to properly investigate or charge [C] with said criminal conduct, or to disclose that she had allegedly confessed thereto. a third amended petition in 2012. Later, the petitioner withdrew counts one and two of the petition. The habeas court denied the remaining count of the petition, in which the petitioner argued that he was denied a fair trial as a result of prosecutorial impropriety, specifically, the prosecu- tion’s failure to disclose allegedly exculpatory information related to the criminal conduct of C against the petitioner’s grandmother. The court thereafter rendered judgment denying the petition and denied the petitioner’s petition for certification to appeal. This court dismissed the petitioner’s appeal from that judgment. See Pierce v. Commissioner of Correction, 150 Conn. App. 906, 98 A.3d 121 (2014). 5 Practice Book § 23-29 provides: “The judicial authority may, at any time, upon its own motion or upon motion of the respondent, dismiss the petition, or any count thereof, if it determines that: “(1) the court lacks jurisdiction; “(2) the petition, or a count thereof, fails to state a claim upon which habeas corpus relief can be granted; “(3) the petition presents the same ground as a prior petition previ- ously denied and fails to state new facts or to proffer new evidence not reasonably available at the time of the prior petition; “(4) the claims asserted in the petition are moot or premature; “(5) any other legally sufficient ground for dismissal of the petition exists.”  Pierce v. Commissioner of Correction “However, in a prior petition . . . the petitioner also litigated a claim of prosecutorial misconduct, which also alleged a failure to turn over exculpatory materials, and has failed to set forth new facts or new evidence in the present petition not reasonably discoverable at the time of the prior petition. In fact, the record of the prior pro- ceeding shows that the petitioner, and habeas counsel, were actually in possession of information regarding this alleged criminal act committed by [C], and that this knowledge reaches as far back as the petitioner’s original criminal trial and trial counsel.” The court denied the petitioner’s petition for certification to appeal from the dismissal of count one of his third amended petition. On January 23, 2020, following a trial on the remain- ing two counts of the third amended petition, the habeas court denied those counts. In its memorandum of deci- sion, the court noted that “the petitioner continues to support all of his claims, in various forms, with an asser- tion that the state withheld exculpatory evidence related to [C] robbing money from his grandmother in the days before [he] committed his criminal acts against her. More specifically, he insists that [C] confessed to robbing the petitioner’s grandmother at the grandmother’s home during a taped interview with the Dudley, Massachu- setts police about the petitioner’s crimes against her and that the state failed to disclose that exculpatory information.” Although, prior to the habeas trial, the court had dismissed count one of the third amended petition, in which the petitioner set forth various claims related to the prosecution’s alleged failure to disclose exculpatory information, the court nonetheless made several detailed findings, supported by reference to the evidence, to demonstrate why the claims encompassed by count one lacked merit “[s]o that future courts will not be burdened with these baseless claims . . . .” Thereafter, the court denied the petition with respect to counts two and three. The petitioner filed a petition for certifica- tion to appeal, which the court denied. The petitioner then appealed to this court, challenging the denial of certification to appeal and the court’s earlier dismissal of count one of his third amended petition.  Pierce v. Commissioner of Correction This court reversed in part the judgment of the habeas court with respect to the first count of the third amended petition and remanded the case to the habeas court for further proceedings. See Pierce v. Commissioner of Cor- rection, 221 Conn. App. 80, 89, 301 A.3d 530 (2023). This court stated: “We agree with the petitioner that the [habeas] court abused its discretion in denying his petition for certification to appeal. Furthermore, in light of our Supreme Court’s decisions in Brown v. Commis- sioner of Correction, 345 Conn. 1, 282 A.3d 959 (2022), and in Brown’s companion case, Boria v. Commissioner of Correction, 345 Conn. 39, 282 A.3d 433 (2022), which were decided in 2022, after the habeas court’s 2019 dis- missal of the first count of the petitioner’s third amended petition, we agree that the habeas court committed error in dismissing that count pursuant to [Practice Book] § 23-29 without first providing him with prior notice of its intention to dismiss and an opportunity to submit a brief or a written response addressing the proposed basis for dismissal.” Pierce v. Commissioner of Correction, supra, 82–83. On September 7, 2023, the habeas court, Bhatt, J., issued an order providing notice to the parties pursu- ant to Practice Book § 23-29 (3) that a hearing would be held to determine why the first count of the third amended petition should not be dismissed because “it presents the same ground as a prior petition previously denied and fails to state new facts or to proffer new evi- dence not reasonably available at the time of the prior petition.” On November 6, 2023, the respondent filed a motion to dismiss the first count of the third amended petition pursuant to Practice Book § 23-29 (1) and (2). In support of the motion to dismiss, the respondent argued that the petitioner failed to state a claim on which relief could be granted because the prosecution did not have an obligation to disclose impeachment informa- tion to the petitioner prior to his nolo contendere pleas. Alternatively, the respondent argued that the petition should be dismissed as successive. The petitioner filed memoranda of law in opposition to Judge Bhatt’s order  Pierce v. Commissioner of Correction and the respondent’s motion to dismiss. On December 13, 2023, the habeas court, Wagner, J., held a hearing concerning Judge Bhatt’s order and the respondent’s motion. Neither party asked to present evidence at the hearing. The court heard arguments from the petitioner’s attorney and the respondent’s attorney at the hearing. In its memorandum of decision filed February 15, 2024, the habeas court noted that the petitioner did not dispute that, in count three of his prior petition for a writ of habeas corpus,6 he alleged that the prosecutor had improperly failed to disclose to him certain documents and information related to the police investigation of C’s robbery and assault of his grandmother. The court observed that, in the present petition, the petitioner focused on the prosecution’s nondisclosure of two police records, one generated by the Hartford Police Depart- ment and the other by the Putnam Police Department, as well as a dispatch log generated by the Dudley, Mas- sachusetts Police Department, which he believes are exculpatory or otherwise favorable to him. The habeas court noted that, in count three of the prior petition, “[the petitioner] had specifically alleged that the state had ‘failed to provide the petitioner’s counsel with exculpatory information that was favorable to the petitioner. The information that was not disclosed was the videotaped exculpatory statement of the victim taken in Dudley, Massachusetts, on July 11, 2008. The video- tape was discoverable in that the records were cited in the police report created by Trooper Jeffrey Payette of the Connecticut State Police. . . . The medical records were discoverable in that the records were cited in the police report created by Trooper Jeffrey Payette of the Connecticut State Police.’ [The petitioner] alleged that this undisclosed evidence was favorable to his defense because it was exculpatory or had impeachment value. As habeas relief, [the petitioner] requested that he be permitted to withdraw his [nolo contendere] pleas and such other relief as law and justice require.” 6 See footnote 4 of this opinion.  Pierce v. Commissioner of Correction After discussing relevant precedent, the habeas court observed that the records at issue in the present action had been generated in connection with the police investi- gation into C and her involvement in the incident involv- ing the petitioner’s grandmother on July 10, 2004. The court also observed that, by way of relief, the petitioner requested that his nolo contendere pleas and sentences be vacated and such other relief as law, equity, or justice may require. The habeas court stated that “[the petitioner] asserts in his objection to the respondent’s motion to dismiss, as he did in his reply to the return, that the claim in count one is not successive because the prosecuting author- ity suppressed materials related to the lapses by law enforcement in response to the criminal conduct of [C], the victim assaulted by [the petitioner]. However, [the petitioner] neither avers nor offers any explanation as to why the three documents were not reasonably avail- able at the time of the prior petition. At the hearing on the motion to dismiss, [the petitioner] acknowledged that these documents were received through Freedom of Information Act [FOIA]7 requests. Such easy availability undermines [the petitioner’s] argument that these three documents were not reasonably available. “Consequently, the court finds that these three docu- ments are not newly discovered evidence that was rea- sonably unavailable at the time [when the petitioner brought] the first habeas [petition] because they were readily available and could have been used in the prior habeas [proceeding]. The court concludes that res judi- cata bars the claim in count one because it is successive.” (Footnote added.) The court dismissed count one of the third amended petition on this ground.8 Thereafter, the 7 See General Statutes § 1-200 et seq. 8 The habeas court also dismissed count one of the third amended peti- tion on the legally distinct ground that it failed to state a claim on which habeas corpus relief could be granted. See Practice Book § 23-29 (2). Specifically, the court, relying on United States v. Ruiz, 536 U.S. 622, 122 S. Ct. 2450, 153 L. Ed. 2d 586 (2002), agreed with the respondent that the petitioner’s nolo contendere pleas acted as a waiver of his right  Pierce v. Commissioner of Correction court granted the petitioner’s petition for certification to appeal. The petitioner argues that the habeas court incorrectly concluded that count one was barred by the doctrine of to claim that the undisclosed materials and the prosecution’s failure to disclose them rendered his nolo contendere pleas invalid. The court stated that, in Ruiz, the United States Supreme Court had “determined that the federal constitution does not require the government to disclose material impeachment evidence prior to entering a plea agreement with a criminal defendant.” (Emphasis added.) In light of our conclusion that the habeas court properly dismissed count one of the third amended petition on the basis of res judicata, it is unnecessary for us to consider the propriety of the court’s ruling on this alternative ground. Nonetheless, we recognize that the petitioner in this case alleged that the prosecution had failed to disclose material exculpatory evidence rather than material impeachment evidence. Although we need not determine whether that characterization of the evidence at issue in this case was accurate, we nonetheless urge lower courts to tread with caution in applying Ruiz in the context of claims arising under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), that pertain to the prosecution’s failure to disclose information prior to a guilty plea. See Walcott v. Commissioner of Correction, 238 Conn. App. 545, 580–83, 356 A.3d 1217 (2026) (Ruiz applies to material impeachment evidence and, in absence of trial, Brady imposed no obligation on state to disclose alleged agreement between state and state’s witness). In Brady, the United States Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the pros- ecution.” Brady v. Maryland, supra, 373 U.S. 87. The United States Court of Appeals for the Second Circuit has discussed the scope of Ruiz as applying to impeachment evidence but not exculpatory evidence: “In United States v. Ruiz, [supra, 536 U.S. 622], the Supreme Court reaf- firmed its earlier holding that a defendant is entitled to information necessary to ensure that his plea is voluntary, and that any related waiver of his rights are made knowing[ly], intellingent[ly], [and] with sufficient awareness of the relevant circumstances and likely consequences. . . . Nevertheless, because impeachment information is special in relation to the fairness of a trial, not in respect to whether a plea is voluntary . . . the Supreme Court held that the failure to disclose such informa- tion prior to a guilty plea does not violate the [d]ue [p]rocess [c]lause. While the Supreme Court acknowledged that the more information the defendant has, the more aware he is of the likely consequences of a plea, waiver, or decision, and the wiser that decision will likely be, it held that the [c]onstitution does not require the prosecutor to share all useful information with the defendant.” (Citations omitted; emphasis  Pierce v. Commissioner of Correction res judicata because he had previously raised the issue of prosecutorial impropriety, based on a failure to dis- close allegedly exculpatory information related to C, in his prior habeas petition. According to the petitioner, he specifically pleaded in the present action “that there were three new documents that were exculpatory and material to [his] case, which were not disclosed by the state before [he] entered his [nolo contendere] pleas. . . . [The] petitioner sufficiently alleged new facts and new evidence that would, if proven, entitle him to relief. Whether the alleged evidence was available at the time of his prior habeas trial would be a factual issue for the habeas court to resolve at the time of the habeas trial. Thus, the habeas court’s decision to dismiss count one omitted; internal quotation marks omitted.) Friedman v. Rehal, 618 F.3d 142, 153 (2d Cir. 2010). The court further observed that “Ruiz did not explicitly address” evidence that falls within the broader definition of exculpatory evidence. Id. Following Ruiz, the Second Circuit also stated that, “[i]n order to establish that a Brady violation has occurred before a guilty plea, a defendant must show, among other things, that the government failed to disclose exculpatory evidence.” (Emphasis added.) United States v. McDonald, Docket No. 23-6004-cr, 2024 WL 4356387, *1 (2d Cir. October 1, 2024); id., *1–2 (failure to disclose impeachment evidence “that could have been used at trial to undermine the victim’s anticipated testimony” prior to guilty plea does not give rise to constitutional violation, but failure to disclose exculpatory evi- dence prior to guilty plea may give rise to Brady violation). Although decisions of the Second Circuit are not binding on our courts, they are “particularly persuasive” in resolving issues of federal law. State v. Langston, 346 Conn. 605, 618, 294 A.3d 1002 (2023), cert. denied, U.S. , 144 S. Ct. 698, 217 L. Ed. 2d 391 (2024). Practice Book § 39-18 (a) is consistent with this approach in the context of disclosure by the prosecuting authority prior to the entry of a plea: “In the discretion of the judicial authority, the defendant may enter a plea of guilty or nolo contendere to the information or complaint at arraign- ment or any later time, provided that the judicial authority confirms in open court that the defendant has received all discovery materials that he or she requested in writing pursuant to Chapter 40 that are within the possession of the prosecuting authority. If the defendant has not received all requested discovery, the judicial authority shall confirm that the defendant and his or her counsel agree to waive any right to receive further disclosure, before allowing the defendant to enter the plea. Any such waiver shall not apply to the prosecuting authority’s continuing obligation to disclose exculpatory information or materials pursuant to Sections 40-3 and 40-11.”  Pierce v. Commissioner of Correction is incorrect.” (Citation omitted; emphasis omitted; foot- note omitted.) The petitioner also argues that “there is no res judicata because these three alleged pieces of evidence are different than what was alleged in the first habeas trial. The factual allegations are also different than those alleged in the first habeas [action].” Finally, the petitioner argues that the court improperly found, in the absence of proper support in the record, that the evidence at issue was not new because it was available to him at the time of the first habeas proceeding. The following principles are relevant to our analysis: “The conclusions reached by the [habeas] court in its decision to dismiss [a] habeas petition are matters of law, subject to plenary review. . . . [When] the legal conclu- sions of the court are challenged, [the reviewing court] must determine whether they are legally and logically correct . . . and whether they find support in the facts that appear in the record. . . . To the extent that factual findings are challenged, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous . . . . “The doctrine of res judicata provides that a former judgment serves as an absolute bar to a subsequent action involving any claims relating to such cause of action [that] were actually made or which might have been made. . . . The doctrine . . . applies to criminal as well as civil pro- ceedings and to state habeas corpus proceedings. . . . However, [u]nique policy considerations must be taken into account in applying the doctrine of res judicata to a constitutional claim raised by a habeas petitioner . . . . Specifically, in the habeas context, in the interest of ensuring that no one is deprived of liberty in violation of his or her constitutional rights . . . the application of the doctrine of res judicata . . . [is limited] to claims that actually have been raised and litigated in an earlier proceeding. . . . “In the context of a habeas action, a court must deter- mine whether a petitioner actually has raised a new legal ground for relief or only has alleged different factual  Pierce v. Commissioner of Correction allegations in support of a previously litigated claim . . . . Identical grounds may be proven by different factual allegations, supported by different legal arguments or articulated in different language. . . . [T]wo grounds are not identical if they seek different relief. . . . “[T]he doctrine of res judicata in the habeas context must be read in conjunction with Practice Book § 23-29 (3), which narrows its application. . . . [Section] 23-29 states in relevant part: The judicial authority may, at any time, upon its own motion or upon motion of the respondent, dismiss the petition, or any count thereof, if it determines that . . . (3) the petition presents the same ground as a prior petition previously denied and fails to state new facts or to proffer new evidence not reasonably available at the time of the prior petition. . . . Thus, a . . . petition alleging the same ground [previously litigated] will elude dismissal if it alleges grounds not actually litigated in [an earlier proceeding] and if it alleges new facts or proffers new evidence not reasonably available at the time of the earlier [proceeding]. . . . In this con- text, a ground has been defined as sufficient legal basis for granting the relief sought. Simply put, an applicant must show that his application does, indeed, involve a different legal ground, not merely a verbal reformulation of the same ground. . . . Further, this doctrine applies equally to claims litigated on direct appeal, not just to claims raised in prior habeas petitions. . . . “It is incumbent on the petitioner to establish that evidence would not have been reasonably available at the time of a prior petition. . . . [Thus] when [a] petitioner [brings] a claim on the same legal ground and [seeks] the same relief, he can avoid dismissal only by alleging and demonstrating that evidence necessary to support the newly asserted facts was not reasonably available at the time of the prior petition . . . .” (Citations omitted; emphasis omitted; internal quotation marks omitted.) Anwar S. v. Commissioner of Correction, 237 Conn. App. 144, 159–61, 351 A.3d 819, cert. denied, 354 Conn. 942, 356 A.3d 345 (2026); see also Kearney v. Commissioner  Pierce v. Commissioner of Correction of Correction, 113 Conn. App. 223, 235, 965 A.2d 608 (2009) (explaining res judicata in habeas corpus context). First, we conclude that, in count one of the third amended petition in the present action, the petitioner set forth the same ground that was raised in the prior petition and disposed of in the prior habeas action. The petitioner argues that the purpose of the evidence at issue in the present action was to show “that the police failed to properly investigate,” and, in contrast, the purpose of the evidence at issue in the prior habeas action was to impeach C’s confessions. We consider this to be an attempt by the petitioner to verbally reformulate the same ground. See Davis v. Commissioner of Correction, 109 Conn. App. 92, 97, 950 A.2d 587 (petitioner was precluded from raising essentially same claim in second habeas action when he failed to demonstrate that petition involved different legal ground), cert. denied, 289 Conn. 930, 958 A.2d 157 (2008). In both the present third amended petition and the prior petition, the petitioner alleged that, prior to his nolo contendere pleas, the prosecution failed to disclose exculpatory materials that were related to C’s involvement in certain crimes that she had committed against his grandmother. In both actions, the petitioner sought the same relief, a new trial. Second, we conclude that the habeas court properly concluded that the petitioner had failed to satisfy his burden of establishing “that [the] evidence [not disclosed by the prosecution] would not have been reasonably avail- able [to him] at the time of [the] prior petition.” (Internal quotation marks omitted.) Anwar S. v. Commissioner of Correction, supra, 237 Conn. App. 161. As stated previ- ously in this opinion, having raised the same ground as was raised in the prior petition, the petitioner needed to allege and demonstrate “that evidence necessary to support the newly asserted facts was not reasonably available at the time of the prior petition . . . .” (Internal quotation marks omitted.) Id. The petitioner argues that the court failed to credit the facts as alleged in count one of his third amended petition and that he specifically  Pierce v. Commissioner of Correction alleged “that there were three new pieces of exculpatory evidence or otherwise material evidence that were not available at the time of the prior habeas.” Our review of the petition reflects that the petitioner alleged therein that the evidence at issue was not disclosed prior to his nolo contendere pleas and that timely disclosure of the evidence would have resulted in a favorable outcome to him. The petitioner did not specifically allege that the evidence was not reasonably available to him at the time of the prior petition. The petitioner also argues that “[his] claim that the materials were unavailable because they were suppressed was sufficient to elude dismissal.” Even if we were to assume that the prosecution had failed to disclose the evidence, that does not necessarily lead to the conclusion that the petitioner through reasonable efforts could not have obtained it on his own.9 The transcript of the hearing on the motion to dismiss supports the habeas court’s observation that, although the petitioner’s attorney disputed that the evidence at issue in count one was reasonably available to the petitioner at the time of the prior habeas petition, the petitioner did not explain why the evidence was not rea- sonably available to him at the time of the prior peti- tion. The respondent’s attorney specifically argued that, because the documents at issue were public records, they appeared to be reasonably available to the petitioner at the time that he brought the prior habeas petition. The petitioner did not submit any evidence concerning whether the evidence was reasonably available to him at the time of the prior petition. Instead, the petitioner’s attorney represented to the court that she believed the petitioner had “filed complaints and there [were] inves- tigations into the failures by law enforcement,” and that the petitioner had obtained the evidence at issue by means of requests made under the FOIA. In light of the foregoing, the court properly concluded that the petitioner did not satisfy his burden of demonstrating 9 We note that, in his reply to the respondent’s return, the petitioner stated that count one “is based on new facts and evidence not reasonably available at the time of the prior petition . . . .”  Pierce v. Commissioner of Correction that the materials were not reasonably available to him at the time of the prior petition. Lastly, the petitioner argues that the habeas court made a finding of fact that was not supported by evidence. The petitioner focuses on the portion of the court’s decision in which it observed that his attorney had acknowledged that the petitioner ultimately obtained these documents by means of a FOIA request and in which the court stated that “[s]uch easy availability” undermined the peti- tioner’s argument that they were not readily available to the petitioner and could have been a subject of the prior habeas petition. The petitioner correctly observes that the court did not hear any evidence in connection with the motion to dismiss, and he argues that “when [these materials] became reasonably available [was a] critical, factual jurisdictional [issue] that the habeas court was required to determine before dismissing count one.” The petitioner states that “it was inappropriate for the habeas court to determine that these records were readily available without an evidentiary hearing.” Despite correctly recognizing that whether and when the records were reasonably available to him was a “criti- cal, factual” issue in resolving the respondent’s motion to dismiss, the petitioner does not draw our attention to any indication in the record that he sought to introduce any evidence whatsoever, as was his burden in opposing the motion, or that he was denied an opportunity to do so. In his September 7, 2023 notice that there would be a hearing concerning the first count of the amended habeas petition, Judge Bhatt clearly i