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******************************************************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).
SarahHanna, assistant state’s attorney, with whom,
on the brief, were David I. Cohen, state’s attorney, and MarciaPillsbury, deputy assistant state’s attorney, for the appellee (respondent).Opinion PER CURIAM. The petitioner, Francisco Linarte, appeals followingthe denial ofhispetition 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 relevantto ourdiscussion. Ajuryfoundthepetitionerguilty of five counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2) and five counts ofrisk ofinjuryto a child inviolation ofGeneral Statutes § 53-21 (a) (2). The court rendered judgment in accordance with thejury’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, 944A.2d369, 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, thepetitioneralleged (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 prosecutorandthetrialjudge, and (5) actualinnocence. On July 1, 2010, following a four day proceeding, the habeas court issued an oral decision denying the petitionforawritofhabeascorpus.1Thecourtsubsequently denied the petitioner’s petition for certification to appeal the denial of his petition for a writ of habeas corpus. This appeal followed.2
Onappeal, thepetitionerclaimsthatthehabeas court abused its discretion in denying certification to appeal from the denial of his petition for a writ of habeas corpusandthatthehabeascourtimproperlydiscredited the testimony of David Mantell, the petitioner’s expert witness. We are not persuaded. ‘‘The standard ofreview 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 thatthe denial ofcertificationconstitutedanabuseofdiscretionbythehabeascourt. 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];
orthatthequestionsareadequatetodeserveencouragement to proceed further.

. . . A petitioner who establishes an abuse ofdiscretion through one ofthe 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 ofthe petitioner’s underlying claims to determine whether the habeas court reasonably determinedthatthe petitioner’s appeal was frivolous.’’ (Citation omitted; emphasis in original; internal quotation marks omitted.) Oliphant v. Commissioner ofCorrection, 146 Conn. App. 499, 513–14, 79 A.3d 77 (2013);
see also Spyke v. Commissioner of Correction 145 Conn. App. 419, 423, 75A.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, thepetitionerasksthiscourttorejectthatdetermination 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 deferto the trier offact’s assessment ofthe 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 Cowardv. CommissionerofCorrection, 143 Conn. App. 789, 803, 70 A.3d 1152 (habeas judge, as trier of fact, assesses credibility of witnesses and appellate court does notreviewthat 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 thatthe court’sdeterminationinthisregardisdebatable amongjurists of reason, that a court could resolve the issue differently, or that it deserves encouragement to proceed further.

. . . Therefore, the habeas court didnot 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. CommissionerofCorrection, 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 ofineffective assistance ofcounsel, ahabeas petitioner must satisfythe two-pronged test articulated in Strickland

. . . . Strickland requires that a petitioner satisfy both a performanceprongandaprejudiceprong. To satisfytheperformanceprong,
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 ifbothprongs 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.