******************************************************

The ‘‘officially released’’ date that appears near the

beginning of each opinion is the date the opinion will

be published in the Connecticut Law Journal or the

date it was released as a slip opinion. The operative

date for the beginning of all time periods for filing

postopinion motions and petitions for certification is

the ‘‘officially released’’ date appearing in the opinion.

In no event will any such motions be accepted before

the ‘‘officially released’’ date.

All opinions are subject to modification and technical

correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the

event of discrepancies between the electronic version

of an opinion and the print version appearing in the

Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the

latest print version is to be considered authoritative.

The syllabus and procedural history accompanying

the opinion as it appears on the Commission on Official

Legal Publications Electronic Bulletin Board Service

and in the Connecticut Law Journal and bound volumes

of official reports are copyrighted by the Secretary of

the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal

Publications, Judicial Branch, State of Connecticut.

******************************************************
FRANCISCO LINARTE v. COMMISSIONER

OF CORRECTION

(AC 33398)

DiPentima, C. J., and Gruendel and Lavery, Js.

Argued November 20, 2013—officially released January 14, 2014

(Appeal from Superior Court, judicial district of

Tolland, Nazzaro, J.)

Michael Stone, assigned counsel, for the appellant

(petitioner).

Sarah Hanna, assistant state’s attorney, with whom,

on the brief, were David I. Cohen, state’s attorney, and

Marcia Pillsbury, deputy assistant state’s attorney, for

the appellee (respondent).
Opinion

PER CURIAM. The petitioner, Francisco Linarte,

appeals following the denial of his petition for certification to appeal from the judgment of the habeas court

denying his amended petition for a writ of habeas corpus. The petitioner claims that the habeas court (1)

abused its discretion in denying certification to appeal

and (2) improperly discredited the testimony of the

petitioner’s expert witness. We conclude that the court

properly denied certification to appeal, and, therefore,

dismiss this appeal.

The following factual and procedural history is relevant to our discussion. A jury found the petitioner guilty

of five counts of sexual assault in the first degree in

violation of General Statutes § 53a-70 (a) (2) and five

counts of risk of injury to a child in violation of General

Statutes § 53-21 (a) (2). The court rendered judgment

in accordance with the jury’s verdict and sentenced the

petitioner to a total effective sentence of forty years

incarceration, execution suspended after twenty years,

and thirty five years probation. The petitioner unsuccessfully appealed his conviction. See State v. Linarte,

107 Conn. App. 93, 944 A.2d 369, cert. denied, 289 Conn.

901, 957 A.2d 873 (2008).

On June 2, 2009, the petitioner filed an amended

petition for a writ of habeas corpus. In his five count

petition, the petitioner alleged (1) ineffective assistance

of his criminal trial counsel, (2) ineffective assistance

of his appellate counsel, (3) prosecutorial misconduct,

(4) cumulative error of his criminal trial counsel, the

prosecutor and the trial judge, and (5) actual innocence.

On July 1, 2010, following a four day proceeding, the

habeas court issued an oral decision denying the petition for a writ of habeas corpus.1 The court subsequently

denied the petitioner’s petition for certification to

appeal the denial of his petition for a writ of habeas

corpus. This appeal followed.2

On appeal, the petitioner claims that the habeas court

abused its discretion in denying certification to appeal

from the denial of his petition for a writ of habeas

corpus and thatthe habeas courtimproperly discredited

the testimony of David Mantell, the petitioner’s expert

witness. We are not persuaded.

‘‘The standard of review and the hurdles a petitioner

must overcome to obtain appellate review of a habeas

court’s denial of a petition for a writ of habeas corpus

after certification to appeal has been denied are well

known. . . . In Simms v. Warden, 229 Conn. 178, 187,

640 A.2d 601 (1994), [our Supreme Court] concluded

that . . . [General Statutes] § 52-470 (b) prevents a

reviewing court from hearing the merits of a habeas

appeal following the denial of certification to appeal

unless the petitioner establishes that the denial of certification constituted an abuse of discretion by the habeas
court. In Simms v. Warden, 230 Conn. 608, 615–16, 646

A.2d 126 (1994), [our Supreme Court] incorporated the

factors adopted by the United States Supreme Court in

Lozada v. Deeds, 498 U.S. 430, 431–32, 111 S. Ct. 860,

112 L. Ed. 2d 956 (1991), as the appropriate standard

for determining whether the habeas court abused its

discretion in denying certification to appeal. This standard requires the petitioner to demonstrate that the

issues are debatable among jurists of reason; that a

court could resolve the issues [in a different manner];

orthatthe questions are adequate to deserve encouragement to proceed further. . . . A petitioner who establishes an abuse of discretion through one of the factors

listed above must then demonstrate that the judgment

of the habeas court should be reversed on its merits.

. . . In determining whether the habeas court abused

its discretion [a reviewing court] necessarily must consider the merits of the petitioner’s underlying claims to

determine whether the habeas court reasonably determined that the petitioner’s appeal was frivolous.’’ (Citation omitted; emphasis in original; internal quotation

marks omitted.) Oliphant v. Commissioner of Correction, 146 Conn. App. 499, 513–14, 79 A.3d 77 (2013);

see also Spyke v. Commissioner of Correction 145

Conn. App. 419, 423, 75 A.3d 738, cert. denied, 310 Conn.

932, 78 A.3d 858 (2013).

In its memorandum of decision, the habeas court

expressly discredited the testimony of the petitioner’s

expert witness, Mantell, a clinical psychologist. On

appeal, the petitioner asks this court to reject that determination by the habeas court. We decline his invitation

to do so. ‘‘As a reviewing court, we may not retry the

case or pass on the credibility of witnesses. . . . We

must defer to the trier of fact’s assessment of the credibility of the witnesses that is made on the basis of its

firsthand observation of their conduct, demeanor and

attitude.’’ (Internal quotation marks omitted.) State v.

Osoria, 86 Conn. App. 507, 515, 861 A.2d 1207 (2004),

cert. denied, 273 Conn. 910, 870 A.2d 1082 (2005); see

also Coward v. Commissioner of Correction, 143 Conn.

App. 789, 803, 70 A.3d 1152 (habeas judge, as trier of

fact, assesses credibility of witnesses and appellate

court does not review that determination), cert. denied,

310 Conn. 905, 75 A.3d 32 (2013); Corbett v. Commissioner of Correction, 133 Conn. App. 310, 316–17, 34

A.3d 1046 (2012) (same).

Indeed, this court has most recently stated: ‘‘As an

appellate court, we do not reevaluate the credibility of

testimony . . . . Rather, we must defer to the [trier of

fact’s] assessment of the credibility of the witnesses

based on its firsthand observation of their conduct,

demeanor and attitude. . . . We are not persuaded

that the court’s determination in this regard is debatable

among jurists of reason, that a court could resolve the

issue differently, or that it deserves encouragement to

proceed further. . . . Therefore, the habeas court did
not abuse its discretion by denying the petition for

certification to appeal as to this issue.’’ (Citations omitted; internal quotation marks omitted.) Gonzales v.

Commissioner of Correction, 145 Conn. App. 28, 32,

74 A.3d 509, cert. denied, 310 Conn. 929, 78 A.3d 145

(2013). We similarly conclude that the habeas court

did not abuse its discretion in denying the petition for

certification to appeal the denial of the amended petition for a writ of habeas corpus.

The appeal is dismissed.

1 The habeas court determined that the petitioner failed to prove that

his criminal trial counsel, Attorney Michael Sherman, provided ineffective

assistance and that there was insufficient evidence of prejudice. See, e.g.,

Spyke v. Commissioner of Correction, 145 Conn. App. 419, 424, 75 A.3d 738

(‘‘[T]he proper standard for attorney performance is that of reasonably

effective assistance. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.

2052, 80 L. Ed. 2d 674 (1984). To succeed on a claim of ineffective assistance

of counsel, a habeas petitioner must satisfy the two-pronged test articulated

in Strickland . . . . Strickland requires that a petitioner satisfy both a

performance prong and a prejudice prong. To satisfy the performance prong,

a claimant must demonstrate that counsel made errors so serious that

counsel was not functioning as the counsel guaranteed . . . by the [s]ixth

[a]mendment. . . . To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. . . .

The claim will succeed only if both prongs are satisfied.’’ [Internal quotation

marks omitted.]), cert. denied, 310 Conn. 932, 78 A.3d 858 (2013).

2 The petitioner’s claim on appeal is limited to the actions of his criminal

trial counsel, Attorney Michael Sherman.