concurring. I agree with the result and also with the resolution of the substantive issue of the present viability of the common law “year and a day” rule in part II B of the opinion. I do not join in the remainder of the opinion because the elaborate discussion of the availability of relief in a habeas corpus proceeding where there has been a procedural default in failing to raise seasonably the grounds claimed to invalidate the conviction is quite unnecessary in this extraordinary case and overlooks its unique nature.
It is absolutely clear in this case that the victim of the fire died more than one year after the criminal act of the defendant that caused her death. See State v. Valeriano, 191 Conn. 659, 661, 468 A.2d 936 (1983), cert. denied, 466 U.S. 974, 104 S. Ct. 2351, 80 L. Ed. 2d 824 (1984). Thus, if the year and a day rule were *97presently in force, the record would plainly demonstrate that the petitioner was innocent of the crime of felony murder of which he was convicted and that there has been a fundamental miscarriage of justice. In such a situation, where the record unquestionably establishes that an essential element for conviction of a crime is lacking, the writ of habeas corpus must be held to be available regardless of any procedural barriers.
In Murray v. Carrier, 477 U.S. 478, 495, 106 S. Ct. 2639, 91 L. Ed. 2d 397 (1986), where the United States Supreme Court applied the “cause and prejudice” standard to a procedural default of appellate counsel, the court recognized, nevertheless, that “the principles of comity and finality that inform the concepts of cause and prejudice ‘must yield to the imperative of correcting a fundamentally unjust incarceration.’ ” “Accordingly, we think that in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default.” Id., 496. This court in exercising its habeas corpus jurisdiction should do no less. “The very nature of the writ demands that it be administered with the initiative and flexibility to insure that miscarriages of justice within its reach are surfaced and corrected.” Harris v. Nelson, 394 U.S. 286, 291, 89 S. Ct. 1082, 22 L. Ed. 2d 281, reh. denied, 394 U.S. 1025, 89 S. Ct. 1623, 23 L. Ed. 2d 50 (1969). When it is clear, as in this case, that a petitioner would be innocent of the crime for which he stands convicted if a nonfrivolous issue of substantive law is resolved in his favor, not even a deliberate bypass of the appeal process should preclude a determination of that issue on its merits. Courts ought not to “suffocate the writ in stifling formalisms or hobble its effectiveness with the manacles of arcane and scholastic procedural requirements.” Hensley v. Municipal Court, 411 U.S. 345, 350, 93 S. Ct. 1571, 36 L. Ed. 2d 294 (1973).
*98In the extraordinary situation presented in this case, where the petitioner’s conviction would be demonstrably unjustified if his substantive law claim were sound, I would hold simply that habeas corpus is available to resolve such a nonfrivolous claim despite any procedural default and regardless of whether appellate counsel measured up to the appropriate standard.
Accordingly, I agree with the result.