Linarte v. Commissioner of Correction

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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).
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 certifica-
tion to appeal from the judgment of the habeas court
denying his amended petition for a writ of habeas cor-
pus. 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 rele-
vant 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 unsuc-
cessfully 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 peti-
tion 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 that the habeas court improperly 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 certi-
fication 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 stan-
dard 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];
or that the questions are adequate to deserve encourage-
ment to proceed further. . . . A petitioner who estab-
lishes 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 con-
sider the merits of the petitioner’s underlying claims to
determine whether the habeas court reasonably deter-
mined that the petitioner’s appeal was frivolous.’’ (Cita-
tion omitted; emphasis in original; internal quotation
marks omitted.) Oliphant v. Commissioner of Correc-
tion, 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 deter-
mination 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 credi-
bility 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. Commis-
sioner 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 omit-
ted; 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 peti-
tion 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 demon-
strate that there is a reasonable probability that, but for counsel’s unprofes-
sional 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.