dissenting. Where material issues of fact are in dispute, it is fundamental to our notions of due process of law that a party is entitled to the opportunity to have the trier of fact resolve those disputed factual issues after a full evidentiary proceeding. Because I believe that the allegations of the habeas petition in this case are not insufficient as a matter of law to permit the granting of the petition, I conclude that the trial court improperly denied the petitioner the opportunity to present evidence in support of his petition for habeas corpus. Accordingly, I dissent.
The petitioner alleges that trial counsel’s deficient performance permitted the jurors to become prejudiced against him as a result of the disclosure of his medical condition, thus depriving him of a fair trial. His claim on direct appeal that the disclosure of his medical condition prejudiced the jury against him was rejected by our Supreme Court based on the trial record available to it. State v. Mercer, 208 Conn. 52, 55-63, 544 A.2d 611 (1988). In rejecting the petitioner’s claim, raised for the first time on appeal pursuant to State v. Evans, *779165 Conn. 61, 70, 327 A.2d 576 (1973),1 our Supreme Court concluded that the information conveyed to the jurors was not so inherently prejudicial as to make the possibility of prejudice highly likely or almost unavoidable. State v. Mercer, supra, 59-60. Furthermore, “[t]he record . . . disclose[d] no evidence that the jurors who sat on the defendant’s case were prejudiced by the knowledge that he supposedly suffered from AIDS.” Id., 62.
It is significant, in my view, that the petitioner presented his claim of juror bias to the Supreme Court for review understate v. Evans, supra. Because trial counsel failed to preserve the claim properly in the trial court, the Mercer court’s conclusion was necessarily drawn from the limited record available to it.
The petitioner presents a broad allegation of prejudice in the present habeas petition. To the extent that the petitioner presents facts in support of his habeas petition that do no more than duplicate the trial record on the issue of juror bias, then the habeas court would be bound to conclude that the petitioner had not satisfied the prejudice prong of the Strickland2 analysis. Certainly, State v. Mercer, supra, stands for the proposition that the facts presented in that case do not amount to a deprivation of a fair trial due to alleged juror bias. By the same token, to the extent that the petitioner shows not only that counsel’s performance was deficient but also that he was prejudiced by that conduct, based on evidence beyond that contained in the record before the Mercer court, he might be entitled to habeas corpus relief.
*780In my view, the petitioner’s allegation of juror prejudice is sufficient to permit him to develop a factual record in support of his habeas claim. This conclusion necessarily follows in this case because dismissal pursuant to either Practice Book § 5313 or § 5324 is inappropriate. Under such circumstances, the habeas court’s authority to “proceed in a summary manner to determine the issues of fact and law”; Practice Book § 536; cannot be used to deprive the petitioner of an evidentiary hearing on the allegations of his petition. Consequently, the petitioner should have been permitted the opportunity to present facts, in addition to those before the Supreme Court in his direct appeal, to substantiate his claim of juror bias.
The present habeas petition is not predicated on the same issues addressed in the petitioner’s direct appeal. Although the petitioner must, by necessity, repeat his allegations of juror bias based on the disclosure of his medical condition, there may never have been a proper determination of that issue in the direct appeal because of the limited record available to the Supreme Court. The claim of ineffective assistance of counsel, when added to the claim of juror bias, along with an opportunity to develop a more complete record on both issues, results in a different legal determination of the issue of prejudice than was undertaken by the court in State *781v. Mercer, supra. This analysis of the applicability of res judicata principles in the context of a habeas corpus proceeding, I believe, follows the analysis undertaken by our Supreme Court in the recent case of Lozada v. Warden, 223 Conn. 834, 844, 613 A.2d 818 (1992), and leads ineluctably to the conclusion that the petitioner must be permitted the opportunity to present facts in support of his claim for relief.
Because the jury bias issue was addressed by our Supreme Court on Evans review, it was necessarily addressed in the context of a limited record. Here, the defendant seeks to expand on that factual record, inter alia, with respect to the question of whether his fair trial rights were prejudiced by juror bias. I believe that the petitioner is entitled to his day in court on this issue. Consequently, I would reverse the judgment of the habeas court and remand the case to that court for an evidentiary hearing.
Review of unpreserved claim of trial error under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), has been refined and replaced by the analysis of our Supreme Court in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).
See Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
Practice Book § 531 provides in pertinent part: “If a previous application [for a writ of habeas corpus] brought on the same grounds was denied, the pending application may be dismissed without hearing, unless it states new facts or proffers.new evidence not reasonably available at a previous hearing.”
Practice Book § 532 provides: “The sufficiency of the petition on which the writ was granted and the propriety of the issuance of the writ may be tested, before a return is filed, by a motion to quash. On such a motion the allegations of the petition are deemed admitted.”
“A motion to quash is the equivalent to [a motion to strike] a complaint in a civil action and seeks to test the legal sufficiency of the allegations of the petition.” Santiago v. Warden, 27 Conn. App. 780, 784-85, 609 A.2d 1023, cert. denied, 223 Conn. 916, 614 A.2d 780 (1992).