dissenting. I respectfully dissent. I do not agree with the majority that the present appeal warrants reconsideration of our conclusion in Iovieno v. Commissioner of Correction, 222 Conn. 254, 608 A.2d 1174 (1992) (Iovieno II). It seems incongruous for us to conclude today that the petitioner’s petition for permission to appeal now can be heard by the habeas court when we concluded five years ago that the exact same petition could not be heard because it was not filed within the time specified by General Statutes § 52-470 (b). Moreover, I disagree with the majority’s conclusion that whenever a petitioner alleges ineffective assistance of appellate habeas counsel in a second habeas petition, he need only to demonstrate to the second habeas court that his petition for permission to appeal the first habeas court’s decision was not filed within the statutory time *709limit, and not that he was prejudiced by the late filing. Prejudice is typically required in ineffective assistance of counsel claims. I fail to see how this scenario requires a different rule.
I
“[T]he proper analysis of a statutory time limitation on the right to appeal devolves into a question of statutory construction: did the legislature, in imposing the time limitation, intend to impose a subject matter jurisdictional requirement on the right to appeal? ‘We approach this question according to well established principles of statutory construction designed to further our fundamental objective of ascertaining and giving effect to the apparent intent of the legislature. State v. Kozlowski, 199 Conn. 667, 673, 509 A.2d 20 (1986); Hayes v. Smith, 194 Conn. 52, 57, 480 A.2d 425 (1984). In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. Dart & Bogue Co. v. Slosberg, 202 Conn. 566, 572, 522 A.2d 763 (1987) .... Texaco Refining & Marketing Co. v. Commissioner, 202 Conn. 583, 589, 522 A.2d 771 (1987).” Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757, 764, 628 A.2d 1303 (1993).
In Iovieno II, we considered at length whether the first habeas court properly concluded that it had no discretion to consider the petitioner’s late petition for permission to appeal.1 We stated: “Section 52-470 (a) *710provides, in pertinent part, that ‘[t]he court or judge hearing any habeas corpus shall proceed [in a summary way] ... to determine the facts and issues of the case . . . and shall thereupon dispose of the case as law and justice require.’ . . . Section 52-470 (b) provides, in pertinent part, that l[n]o appeal from the judgment rendered in a habeas corpus proceeding . . . may be taken unless the appellant, within ten days after the case [was] decided, petitions the judge before whom the case was tried ... to certify that a question is involved in the decision which ought to be reviewed by the court having jurisdiction and the judge so certifies.’ (Emphasis added.) According to the plaintiff, the habeas court incorrectly concluded that this statute allows no discretion to the habeas court to consider an untimely petition for certification to appeal. . . . The plaintiff refers to our statement in Gaines v. Manson, [194 Conn. 510, 528, 481 A.2d 1084 (1984)], that ‘[i]n the exercise of its power under § 52-470 to grant such relief “as law and justice require,” the trial court, much like a court of equity, has considerable discretion to frame a remedy, so long as that remedy is commensurate with the scope of the constitutional violations which have been established.’ Applying these principles to the present case, the plaintiff argues that the broad mandate of power contained in § 52-470 (a), to ‘dispose of the case as law and justice require,’ implicitly extends to § 52-470 (b), and allows the court discretion to consider a petition for certification not filed within the ten day time frame provided for in § 52-470 (b). We disagree.
“ ‘[I]f the “statutory language ... is clear and unambiguous . . . courts cannot, by construction, read into such statutes provisions which are not clearly stated.” Frazier v. Manson, 176 Conn. 638, 642, 410 A.2d 475 (1979).’ Chairman v. Freedom of Information Commission, 217 Conn. 193, 200, 585 A.2d 96 (1991). Furthermore, ‘[w]hen construing a statute, we do not *711interpret some clauses in a manner that nullifies others, but rather “ ‘read the statute as a whole and so as to reconcile all parts as far as possible.’ ” Martone v. Lensink, 207 Conn. 296, 302, 541 A.2d 488 (1988); Grodis v. Burns, 190 Conn. 39, 44, 459 A.2d 994 (1983).’ Statewide Grievance Committee v. Rozbicki, 211 Conn. 232, 241, 558 A.2d 986 (1989). With these principles in mind, we again note that under § 52-470 (a), the habeas court is provided with considerable discretion to ‘dispose of the case as law and justice require.’ The fact that the legislature specifically declined to include this discretionary language in § 52-470 (b) is strong evidence that the habeas court has no discretion in dealing with appeals under § 52-470 (b). See Chairman v. Freedom of Information Commission, supra [200] (applying the maxim, ‘expressio unius est exclusio alterius’). . . . We conclude, from the plain language of § 52-470, that the habeas court was correct in concluding that it had no discretion to consider an untimely petition for certification to appeal.
“Furthermore, even if it is assumed that § 52-470 is ambiguous, and therefore needs to be construed, this result remains unchanged. ‘The factors that this court looks to in construing a statute include “its legislative history, its language, the purpose it is to serve, and the circumstances surrounding its enactment.” ’ Verrastro v. Sivertsen, 188 Conn. 213, 221, 448 A.2d 1344 (1982). In 1957, the legislature amended § 52-470; see Public Acts 1957, No. 482; to include a provision regarding certification to appeal a habeas decision. The legislative history of Public Acts 1957, No. 482 indicates that the portion of Senate Bill 1100 that added this provision was intended, as noted by Senator John H. Filer, ‘to reduce successive frivolous appeals in criminal matters and hasten ultimate justice without repetitive trips to the Supreme Court of Errors.’ 7 S. Proc., Pt. 5, 1957 Sess., p. 2936. ‘ “Although statements made on the floor *712of the legislature are not controlling on statutory interpretation, we may take judicial notice of those statements, which are strong indications of legislative intent. American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 195 n.8, 530 A.2d 171 (1987); Manchester Sand & Gravel Co. v. South Windsor, 203 Conn. 267, 276, 524 A.2d 621 (1987); Verrastro v. Sivertsen, supra, 223 n.9.” Winchester Woods Associates v. Planning & Zoning Commission, 219 Conn. 303, 310-11, 592 A.2d 953 (1991).’ West Haven v. Hartford Ins. Co., 221 Conn. 149, 159, 602 A.2d 988 (1992).
“During discussion on the Senate floor concerning the amendment, Senator Elmer S. Watson read into the record a letter from former Chief Justice William M. Maltbie expressing concern over the delay in the executions for first degree murder. The letter stated, inter alia: ‘There are . . . two means which have been used to delay the execution of the death sentence and which . . . may properly be subjected to more regulation than now exists. One of these is the petition for a new trial for . . . newly discovered evidence, with an appeal to the Supreme Court, if it is denied. It has seemed to me that such petitions have been used in certain instances, not because they had any merit, but in a calculated effort to delay the imposition of the penalty. . . . The other means by which, I feel, unjustifiable delay has been caused is through the use of the writ of habeas corpus. Of course both the constitution of Connecticut and the constitution of the United States . . . contain guarantees . . . the effect of which is that any person may at any time bring the writ claiming an illegal confinement. An appeal from the decision of the court or judge on such a writ is not, however, within the constitutional guarantees. Very much the same considerations apply to the limitation of appeals in habeas corpus proceedings in criminal cases as I have sug*713gested with reference to petitions for new trials.’ [Emphasis added.] 7 S. Proc., [supra], pp. 2938-39.
“To remedy the problem, Chief Justice Maltbie suggested an amendment to the effect that no such appeal ‘shall be taken unless the judge before whom the case was tried or a justice of the supreme court of errors shall, within one week after the case was decided, certify that a question was involved in the decision which ought to be reviewed by the supreme court of errors.’ Id., pp. 2939-40. The amendment was adopted, modified only to the extent of allowing ten days rather than one week for certification.
“Section 52-470 was thereafter amended again. Public Acts 1967, No. 182 amended the section to require the appellant to petition for certification within ten days after the case is decided rather than requiring the judge to certify within that period. The statute was again amended in 1982; see Public Acts 1982, No. 82-160, § 171; changing the word ‘shall’ to ‘may’ in § 52-470 (b), so that the statute now provides that ‘[n]o appeal . . . may be taken unless the appellant, within ten days . . . petitions the judge . . . .’ (Emphasis added.) The plaintiff contends that the 1982 change evinces the intent of the legislature to make this section discretionary rather than mandatory. A review of the legislative history of this amendment, however, reveals no such intent. On the contrary, the history is silent as to why the word ‘shall’ was changed to ‘may.’
‘In construing a statute, common sense must be used, and courts will assume that the legislature intended to accomplish a reasonable and rational result.’ ” King v. Board of Education, 203 Conn. 324, 332-33, 524 A.2d 1131 (1987); Gentry v. Norwalk, 196 Conn. 596, 606, 494 A.2d 1206 (1985).’ Ford Motor Credit Co. v. B. W. Beardsley, Inc., 208 Conn. 13, 20, 542 A.2d 1159 (1988). We conclude that the 1982 amendment was *714not intended to change § 52-470 (b) from mandatory to discretionary. Rather, it involved a technical rewording and clarification of the statute.2 The word ‘shall,’ present in the statute prior to the amendment, did not logically belong, because it did not follow that a person would necessarily appeal the habeas decision. The amendment makes it clear that a person who does, in fact, appeal, must petition the judge for certification within ten days.
“Neither the plain language of § 52-470, nor its legislative history, supports the plaintiffs claim that the court has discretion to consider an untimely petition for certification to appeal. We therefore conclude that the court was correct in denying the petition for certification to appeal. . . . Given the circumstances of this case, we hold that the habeas court was correct in concluding that it lacked the discretion to consider the untimely petition for certification to appeal.”3 (Citations omitted; internal quotation marks omitted.) Iovieno II, supra, 222 Conn. 256-62.
Since our decision in Iovieno II five years ago, we have twice cited that decision for the proposition that the ten day time limit of § 52-470 does not give habeas *715courts the discretion to consider untimely petitions. HUD/Barbour-Waverly v. Wilson, 235 Conn. 650, 657, 668 A.2d 1309 (1995); Ambroise v. William Raveis Real Estate, Inc., supra, 226 Conn. 759-60. In HUD/Barbour-Waverly v. Wilson, supra, 657, we stated: “The legislature is the branch of government empowered to bestow subject matter jurisdiction upon the courts. See Grieco v. Zoning Commission, 226 Conn. 230, 231, 627 A.2d 432 (1993). If its language in drafting and enacting a statute is clear and unambiguous, there is no room for alteration of the legislative decision by the judicial branch through Practice Book provision or otherwise. See Ambroise v. William Raveis Real Estate, Inc., supra, 763. As we stated in Ambroise, [t]hat language means what it says. Id., 765. A statute which provides that a thing shall be done in a certain way carries with it an implied prohibition against doing that thing in any other way. . . . [Iovieno II, supra, 222 Conn. 258] (habeas statute that provides that [n]o appeal . . . may be taken except within statutorily prescribed period gives habeas court no discretion to hear untimely appeals; id., 256-57).” (Internal quotation marks omitted.)
Contrary to the majority, I am unpersuaded that our decisions subsequent to Iovieno II, in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994) (Simms I), and Simms v. Warden, 230 Conn. 608, 646 A.2d 126 (1994) (Simms II),4 require us to overrule Iovieno II and to allow the petitioner to bring the same petition for per*716mission to appeal that we told him five years ago he could not bring. In Simms I, this court interpreted the language in § 52-470 (b) which provides that “[n]o appeal . . . may be taken unless the appellant . . . petitions the judge before whom the case was tried or a judge of the Supreme Court or Appellate Court to certify that a question is involved in the decision which ought to be reviewed by the court having jurisdiction and the judge so certifies.” In interpreting this language, the majority concluded that it does not implicate subject matter jurisdiction and that appellate review may still be available to a habeas petitioner whose timely petition for certification to appeal is denied. The court’s determination was based upon its conclusion that the legislature did not intend the denial of a petition for certification to result in an absolute bar to appellate review. In Simms II, supra, 615, the court concluded “that the legislature intended the certification requirement only to define the scope of our review and not to limit the jurisdiction of the appellate tribunal.” In order to limit the “scope” of our review in accordance with the perceived legislative intent, the majority in Simms II created an initial hurdle for habeas petitioners who have not obtained certification to appeal by requiring those petitioners to prove that the court from which certification was sought abused its discretion by not granting certification. Id. In concluding that the certification requirement of § 52-470 (b) was not jurisdictional, the majority in neither Simms I nor Simms II reconciled its conclusion with this court’s previous conclusion in Iovieno II that the time limit contained in that same statutory subsection was subject matter jurisdictional.
If there is an inconsistency between the Simms cases and Iovieno II,5 I would say that the Simms cases should *717be overruled, rather than Iovieno II. First, the plain language of the statute provides that “[n]o appeal . . . may be taken unless” a petition is filed within ten days of the habeas court’s ruling. Second, the legislative history is clear that the enactment of § 52-470 was motivated by the legislature’s desire to curtail the endless tide of habeas petitions and appeals filed in criminal cases. Senator Filer expressed the legislative intent as being to “hasten ultimate justice without repetitive trips to the Supreme Court of Errors.” 7 S. Proc., supra, p. 2936. Under the majority’s interpretation of § 52-470, the number of trips to this court remains the same regardless of whether the habeas petitioner complies with the mandates of § 52-470. The only difference is that the petitioner who is denied permission to appeal must take on the additional burden of an abuse of discretion. The majority’s interpretation in the Simms cases and now in this case clearly undermines the overriding legislative interest in the summary disposition and finality of habeas petitions. “Ultimate justice” is only hastened if we interpret § 52-470 to make compliance therewith mandatory. Because our task is to give effect to the apparent intent of the legislature, I respectfully dissent from part I of the majority opinion. I realize that I concurred with the result reached by the majority in Simms II, in light of the precedent of Simms I, a case on which I did not sit. Simms II, supra, 230 Conn. 618 (Callahan, J., concurring). On further reflection, however, I believe that habeas proceedings have strayed so far from the summary proceeding with limited appellate rights envisioned by the legislature, that the trend should be halted, if not by this court in a reasoned interpretation of existing statutes, then by legislative action in the form of definitive statutes per*718taining to the limitations on habeas petitions and appeals of decisions therefrom.
II
Even assuming that a habeas court has discretion to hear a late appeal, I believe it is a misuse of our limited judicial resources6 to reinstitute the ten day limitation period of § 52-470 in order to allow the petitioner to file a new petition for permission to appeal.
The following facts are relevant to this issue. The petitioner petitioned the first habeas court for relief alleging ineffective assistance of trial counsel. He claimed that counsel was ineffective because he had failed to move to suppress certain physical evidence seized by the police at his parent’s home7 or a pubic hair taken from his person while he was detained at the police station.8 The first habeas court found that the petitioner’s trial counsel had been ineffective, but concluded that the petitioner had failed to meet his burden of demonstrating that he had been prejudiced. The habeas court reached its conclusion of no prejudice on the basis of a plethora of other evidence pointing to the defendant as the perpetrator of the crimes charged.9
*719The petitioner’s habeas counsel subsequently filed with the first habeas court a petition for permission to appeal that court’s determination of no prejudice, but did not do so until four days after the expiration of the ten day limitation period of § 52-470 (b). The first habeas court concluded that it was without jurisdiction to entertain the late petition. We affirmed that conclusion in Iovieno II, supra, 222 Conn. 254.
The petitioner then filed a second habeas petition, alleging that his first habeas counsel had been ineffective by failing to file the petition for permission to appeal in a timely manner. The second habeas court enter*720tained that petition on the merits, and concluded that counsel’s performance had been ineffective. It also concluded, however, that the petitioner had not demonstrated a reasonable probability that the first habeas court would have granted the petition for permission to appeal, even if it had been timely filed, and, therefore, concluded that the petitioner once again had failed to meet his burden of demonstrating prejudice arising from the allegedly ineffective assistance of counsel.10 The second habeas court stated that the first habeas court’s determination of lack of prejudice “was reached by the application of well-settled principles of habeas corpus law and [that court’s] evaluation of the facts of the case before [it].” In addressing the unlikelihood that the petitioner’s petition to the first habeas court for permission to appeal would have been granted, the second habeas court stated: “[That court’s] decision involved no novel questions of law but was mostly a factual analysis of the evidence presented by the parties. [That court] measured the prosecution and defense cases at the petitioner’s criminal trial after excluding the items which the petitioner had claimed were illegally seized and found that the case against the petitioner remained a strong one. . . . [This] court concludes that the petitioner has failed to prove [that] there exists a reasonable probability that the petition for certification to appeal would have been granted but for the late filing.”
Now, on the petitioner’s second trip to this court since the institution of his first habeas petition, the *721majority not only squarely overrules our first decision rendered in Iovieno II in 1992 on precisely the same issue, but it also allows this futile habeas marathon to continue by remanding the case to the first habeas court. As both habeas courts aptly noted, the evidence against the petitioner is overwhelming. There is not a shred of doubt, with or without the evidence that the petitioner claims his trial counsel should have moved to suppress, that the petitioner committed the sexual assault alleged. The fingerprint evidence, the canine tracking evidence, the perpetrator’s knowledge of the victim’s name, the proximity of their residences, the victim’s accurate description of the physical features of her attacker and the odors that accompanied him, and the petitioner’s attempted commission of a very similar crime only two hours before the commission of the crime at issue are more than sufficient to support a conclusion beyond a reasonable doubt that the petitioner is guilty. The majority is now sending this case back to the first habeas court so that it can consider whether reasonable minds might differ with its-.conclusion that the petitioner did not satisfy the prejudice element of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). See Lozada v. Deeds, 498 U.S. 430, 111 S. Ct. 860, 112 L. Ed 2d 956 (1991) (outlining criteria for granting habeas petitioner permission to bring appeal). It strikes me that from the record, without the necessity of a remand, this court is as able as the first habeas court to determine whether there is an appealable issue in this case.11 Plainly, there is *722not.12
I respectfully dissent.
Although we never used the term “subject matter jurisdiction” in Iovieno II, our determination that a habeas court has no discretion to consider late petitions must mean that late filing implicates subject matter jurisdiction. See Iovieno v. Commissioner of Correction, 40 Conn. App. 553, 559, 672 A.2d 530 (1996) (“no practical difference between a court’s having no subject matter jurisdiction and a court’s having no discretion”). The majority does not offer an alternative reading of Iovieno II, and I can conceive of none.
“Further support for this conclusion may be found in the title of the amendment, ‘An Act Adopting a Technical Revision of Title 52.’ Public Acts 1982, No. 82-160.” Iovieno II, supra, 222 Conn. 261 n.3.
“In view of this holding, it is unnecessary to consider the plaintiffs additional claim that, pursuant to Practice Book §§ 6 and 4187, under which the rules of court are to be interpreted liberally, the habeas court had discretion to consider an untimely filed petition for certification to appeal. For the same reason, we need not consider the plaintiffs claim that we use our supervisory authority under Practice Book § 4183 to reinstate the plaintiffs right to appeal. ‘ “[T]he conditions required by statute as precedent to taking and perfecting an appeal cannot ... be modified or extended by any judge or court without express statutory authority.” ’ Etchells v. Wainwright, 76 Conn. 534, 538, 57 A. 121 (1904). We note, however, that our decision is in accord with Practice Book § [4166c], which provides that a petition for certification to appeal to the Appellate Court ‘shall be made within ten days after the case is decided ....’” Iovieno II, supra, 222 Conn. 262 n.5.
I recognize that the majority also relies upon our recent decision in Banks v. Thomas, 241 Conn. 569, 698 A.2d 268 (1997), wherein the court concluded that the failure to file a writ of error within the two week limitation period provided in General Statutes § 52-273 does not implicate our subject matter jurisdiction to hear the late appeal. Because the question of whether a time limitation implicates our subject matter jurisdiction is a question of legislative intent, I am unpersuaded that our interpretation of the legislative intent behind § 52-273 in Banks is more persuasive than our interpretation in Iovieno II of the legislative intent behind tire time limitation of § 52-470 (b).
Although an argument can be made that the legislature rationally drew a distinction between late petitions and timely petitions that are simply not *717certified, and elected to allow some degree of appellate review of the latter but not the former, I tend to agree with the majority that logic dictates that either both were intended by the legislature to be jurisdictional or neither was intended to be jurisdictional.
The alleged crimes in this case occurred on November 13, 1984, exactly one week after Ronald Reagan was elected to serve a second term as President. The defendant was sentenced on December 13, 1985, and he has been appealing and filing habeas petitions since that time. See footnote 11 of this dissent.
The evidence was seized pursuant to a warrant. The petitioner claimed that it nonetheless should have been suppressed because the items were not described in the warrant affidavit with sufficient particularity.
The defendant claimed that his pubic hair, which matched a hair found at the victim’s apartment, was taken without his consent even though a principal part of his defense at trial was that he had cooperated with the police and that the jury should infer his innocence from his willingness to cooperate.
The first habeas court decided the prejudice prong of the ineffective assistance of counsel claim as follows: “Aside from the items that may have been suppressed, the jury had sufficient additional evidence from which to conclude beyond a reasonable doubt that the petitioner committed the *719sexual assault. Among the facts upon which the jury could have relied and which would have supported its conclusion are the following:
“The victim’s residence was described as being one-half block from the petitioner’s, about fifty (50) feet away. The victim and her husband owned two cars, both of which were always parked in the driveway. They were never garaged. The victim’s husband was away on business and his car was gone. The victim described the perpetrator as being 5’7” to 5’9” tall, stockyish, but not big-boned, hard and muscular, sporting a clipped beard and mustache, having thick, wavy hair, wearing a jogging suit, consisting of a hooded sweatshirt, with a drawstring and sweat pants, wearing soft-soled shoes or sneakers, weighing 170 to 180 [pounds], wearing no jewelry and smelling of beer and smoke as though he had been in a bar. The jury had the opportunity to observe the petitioner. The victim had seen the peril ioner about two months prior to the crime when he helped her with items she had purchased and delivered them to her home. The petitioner then knew the victim’s first name, ‘Marge.’ The petitioner was a smoker. Five to ten minutes before the perpetrator entered the victim’s house at about 3:30 a.m., the victim received a phone call from a person who identified himself as ‘Billings’ and who asked for the victim’s husband by name. Fie also called the victim by name. A latent print of the petitioner’s left thumb was lifted from the rear door to the victim’s house. The rear door was the point of entry by the perpetrator. The petitioner gave a statement to the police officers after he was advised of his rights in which he admitted frequenting a bar the night before and the early morning hours of the day of the incident and drank beer. A K-9 officer with a specially trained dog tracked the perpetrator’s scent from the rear door of the victim’s house to the petitioner’s property.
“Accordingly, the court cannot conclude that even if the questionable evidence were suppressed the outcome of the trial would have been any different.”
I reach no conclusion about whether the focus of the second habeas court’s prejudice analysis should have been: (1) whether there is areasonable probability that the first habeas court would have granted a timely filed petition; or (2) whether there is a probability sufficient to undermine confidence in the verdict that he ultimately seeks to overturn. See Bunkley v. Commissioner of Correction, 222 Conn. 444, 459, 610 A.2d 598 (1992) (in order to prevail on claim of ineffective assistance of appellate counsel, habeas petitioner must demonstrate that “it is reasonably probable that he *721remains burdened by an unreliable conviction”; id., 463; not simply that he would have prevailed on appeal).
I am unpersuaded by the majority’s reliance on the per se prejudice analysis adopted in cases where a criminal defendant has been denied his first appeal as of right altogether. See Bunkley v. Commissioner of Correction, supra, 222 Conn. 465 n. 16. The reason that we have assumed prejudice when a petitioner has been denied his initial appeal from a judgment of guilt is that in those instances it is “impossible to determine whether the verdict was unreliable.” In this case, the petitioner: (1) had his appeal as *722of right; State v. Iovieno, 14 Conn. App. 710, 543 A.2d 766 (1988); (2) was denied certification to appeal that decision; State v. Iovieno, 209 Conn. 805, 548 A.2d 440 (1988); (3) filed an unsuccessful petition for habeas corpus; (4) filed an untimely petition to appeal that decision that was denied; (5) filed an unsuccessful appeal in this court seeking to have his late petition considered; (6) filed a second unsuccessful habeas petition based on the late filing of the appeal petition; (7) unsuccessfully appealed that decision to the Appellate Court; Iovieno v. Commissioner of Correction, 40 Conn. App. 553, 672 A.2d 530 (1996); and (8) now, on the granting of certification; Iovieno v. Commissioner of Correction, 237 Conn. 910, 675 A.2d 456 (1996); appeals to this court from the most recent Appellate Court decision. During the course of this seemingly endless taxpayer financed litigation, the petitioner’s arguments have become abundantly clear. For that reason, I see no reason why we cannot decide, just as the habeas court will on remand, whether there exists a substantive issue that merits further appellate attention.
I disagree with the majority’s assertion in footnote 8 of the majority opinion that “in this case the record indicates the likely success of [the petitioner’s] petition for certification to appeal.” In support of this assertion, the majority points to the first habeas court’s statement to the petitioner as follows: “I would grant you this, that at least as to maybe one of the issues you raised for appeal ... it might be something that an appellate court would want to deal with.” It appears plain from reading the first habeas court’s memorandum of decision that of the two issues raised by the habeas petition, the one that gave the court pause was the petitioner’s claim that his incarceration was illegal because his conviction was based upon evidence that was seized in violation of the fourth amendment to the federal constitution and article first, § 7, of the state constitution. At the time of the petitioner’s habeas, it had been established as a matter of federal constitutional law “that where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.” Stone v. Powell, 428 U.S. 465, 494, 96 S. Ct. 3037, 49 L. Ed. 2d 1067 (1976). In 1988, in Payne v. Robinson, 207 Conn. 565, 569 n.1, 541 A.2d 504, cert. denied, 488 U.S. 898, 109 S. Ct. 242, 102 L. Ed. 2d 230 (1988), we specifically declined to address “the question whether the holding in Stone v. Powell, [supra, 465], that claims under the exclusionary rule of the fourth amendment may not normally be raised in federal habeas corpus proceedings applies equally to state habeas corpus proceedings. This issue must await proper briefing in another case.” Thus, in the present habeas proceedings, the habeas court was faced with the precise issue that we had highlighted for future review in Payne. After rejecting the state constitutional claim, the habeas court wrote: “Perhaps the case at bar raises the issues alluded *723to but unresolved by the Connecticut Supreme Court in Payne v. Robinson [supra, 565].” Thus, it appears certain from the record that when the habeas court stated that one of the issues raised by the petitioner might warrant appellate review, the court was referring to the search and seizure claim rather than the ineffective assistance of counsel claim. The petitioner has since abandoned the search and seizure claim, perhaps on the basis of our subsequent decisions in Johnson v. Commissioner of Correction, 218 Conn. 403, 589 A.2d 1214 (1991), and Simms II, supra, 230 Conn. 617, in which we applied the cause and prejudice standard to attempts by petitioners to raise constitutional claims for the first time in habeas proceedings. Therefore, the habeas court’s statements regarding a potential appealable issue are wholly irrelevant here.