Opinion
(AC 23325).
Submitted on briefs October 30, 2003.
Officially released November 25, 2003.
Petition for a writ of habeas corpus, brought to the Superior Court in the judicial district of Tolland and tried to the court, Graziani, J.; judgment denying the petition; thereafter, the court denied the petition for certification to appeal, and the petitioner appealed to this court. Appeal dismissed.
Richard C. Marquette, special public defender, filed a brief for the appellant (petitioner).
Michael Dearington, state's attorney, and James A. Killen and Linda N. Howe, senior assistant state's attorneys, filed a brief for the appellee (respondent).
Opinion
The petitioner, Robert Boyd, appeals following the denial by the habeas court of his petition for a writ of habeas corpus and his petition for certification to appeal. We dismiss the appeal.
This appeal stems from an incident that occurred in September, 1992, between the petitioner and his then girlfriend's minor daughter. The defendant, subsequently, was arrested and charged with one count of kidnapping in the first degree in violation of General Statutes § 53a-92a (2)(a), two counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a)(1) and one count of risk of injury to a child in violation of General Statutes § 53-21. The petitioner was able to post pond and was free until he pleaded nolo contendere, during jury selection, to one count of sexual assault in the second degree in violation of General Statutes § 53a-71 (a)(1) and one count of risk of injury to a child in violation of § 53-21. The petitioner received an effective sentence of eight years in the custody of the respondent commissioner of correction, execution suspended after two years, with five years of probation. While the criminal prosecution was pending and through sentencing, the petitioner was represented by a public defender and a special public defender, in seriatim.
In 1998, the petitioner filed a petition for a writ of habeas corpus in which he alleged that (1) his plea of guilty was not voluntary due to abandonment of counsel, (2) his sentence was illegal, (3) there were trial irregularities because certain evidence was not introduced and (4) he received ineffective assistance of counsel. The habeas court denied the petition, primarily on the basis of the lack of credible evidence. The court also denied the petition for certification to appeal.
The petitioner has failed to make a substantial showing that he was denied a state or federal constitutional right and, further, he has failed to sustain his threshold burden of persuasion that the denial of certification to appeal was a clear abuse of discretion or that an injustice has been done. See Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994); Simms v. Warden, 229 Conn. 178, 189, 640 A.2d 601 (1994); Walker v. Commissioner of Correction, 38 Conn. App. 99, 100, 659 A.2d 195, cert. denied, 234 Conn. 920, 661 A.2d 100 (1995); see also Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991).
"This court does not retry the case or evaluate the credibility of the witnesses. . . . 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. . . . In a case that is tried to the court . . . the judge is the sole arbiter of the credibility of witnesses, and the weight to be given to their specific testimony." (Internal quotation marks omitted.) Cooper v. Commissioner of Correction, 53 Conn. App. 494, 496, 732 A.2d 778 (1999), quoting Wieler v. Commissioner of Correction, 47 Conn. App. 59, 61, 702 A.2d 1195, cert. denied, 243 Conn. 957, 704 A.2d 806 (1997).