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       LENNARD TOCCALINE v. COMMISSIONER
                OF CORRECTION
                   (AC 38415)
                       Lavine, Sheldon and Flynn, Js.

                                  Syllabus

The petitioner filed a third amended petition for a writ of habeas corpus,
    claiming, inter alia, that he was actually innocent of the crimes of which
    he had been convicted, and that his rights to due process were violated
    as a result of the prosecutor’s unknowing presentation of false testimony
    and alleged failure to disclose certain exculpatory evidence. The peti-
    tioner further claimed that he received ineffective assistance from his
    criminal trial counsel, from S, his counsel in his first habeas trial and
    first habeas appeal, and from P Co., his counsel in his second habeas
    trial. The first habeas court had rendered judgment granting the petition
    for a writ of habeas corpus as to certain of the petitioner’s claims, but
    this court reversed that judgment on the ground that the habeas court
    did not use the proper standard for deciding ineffective assistance of
    counsel claims and directed the habeas court on remand to dismiss the
    petition. After a second habeas trial, the habeas court rendered judgment
    dismissing and denying certain of the petitioner’s claims, and this court
    affirmed that judgment. Thereafter, the petitioner filed a third amended
    habeas petition, and the respondent Commissioner of Correction filed
    a motion to dismiss that petition. The habeas court granted the respon-
    dent’s motion to dismiss and rendered judgment dismissing the third
    amended habeas petition, and, thereafter, denied the petition for certifi-
    cation to appeal, and the petitioner appealed to this court. Held:
1. The habeas court did not abuse its discretion in denying the petition for
    certification to appeal as to the petitioner’s claim of actual innocence,
    that court having properly determined that the petitioner’s actual inno-
    cence claim was barred by the doctrine of res judicata; the claim had
    been raised, litigated and decided on the merits in his first two habeas
    actions, the petitioner did not appeal from the rejection of that claim
    in either of those actions, and he conceded in the present appeal to this
    court that he did not have, and did not intend to present, any newly
    discovered evidence.
2. The habeas court did not abuse its discretion in denying the petition for
    certification to appeal as to the petitioner’s claim that his rights to due
    process were violated when the prosecutor unknowingly presented false
    testimony: there was no Connecticut case that supported the proposition
    that the petitioner’s due process rights could have been violated by the
    prosecutor’s presentation of false testimony when the prosecutor neither
    knew nor should have known that the testimony was false, the issue
    has not been decided by the United States Supreme Court, and the claim
    would fail even under the more lenient approach that provides that due
    process is violated when the testimony is material and the court is left
    with a firm belief that, but for the perjured testimony, the petitioner
    most likely would not have been convicted, as the petitioner failed to
    show that absent the inaccurate testimony, there was a reasonable
    probability that he would not have been convicted in light of the other
    significant, incriminating evidence that had been presented against him.
3. Although the habeas court improperly dismissed the claim that S was
    ineffective as the petitioner’s first habeas appellate counsel on the
    ground that it was successive, the court, nevertheless, did not abuse its
    discretion in denying the petition for certification to appeal on the
    alternative ground that the claim was without merit: the petitioner failed
    to show that S’s performance was deficient for failing to move to have
    the first habeas court articulate its factual findings, as the petitioner
    did not allege which factual findings were absent or show that the
    first habeas court did not articulate the factual findings supporting
    its decision; moreover, although this court subsequently reversed the
    decision of the first habeas court, that reversal was not because the
    court’s factual findings were insufficient or because the record was
    inadequate for review.
4. There was no merit to the petitioner’s claim that the habeas court abused
    its discretion in denying the petition for certification to appeal as to his
    assertion that P Co. was ineffective in representing him in his second
    habeas trial, as the petitioner failed to show that P Co. was ineffective
    in failing to raise or adequately argue claims in counts one through six
    of his third amended habeas petition; the petitioner’s claim in count
    one of actual innocence was successive, his claim in count two that the
    prosecutor violated his due process rights by failing to timely disclose
    a certain report had been fully litigated, and this court previously decided
    that any failure to disclose the report was harmless error, the assertion
    in count three that the prosecutor violated the petitioner’s rights to due
    process by unknowingly presenting false testimony failed to state a
    claim on which relief could be granted, the petitioner’s claims in counts
    four and five that his criminal trial counsel and S, as his first habeas
    counsel, rendered ineffective assistance were previously rejected by
    this court, and the petitioner could not show that he was prejudiced as
    a result of P Co.’s failure to allege that S was ineffective as appellate
    counsel in the first habeas appeal as alleged in count six, as the petitioner
    could not show that the outcome of his criminal trial would have been
    different in light of the incriminating evidence against him and the
    significant evidence supporting his guilt.
           Argued May 16—officially released October 24, 2017

                             Procedural History

  Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district
of Tolland and tried to the court, Fuger, J.; judgment
dismissing the petition; thereafter, the court denied the
petition for certification to appeal, and the petitioner
appealed to this court. Appeal dismissed.
   Andrew P. O’Shea, for the appellant (petitioner).
  Marjorie Allen Dauster, senior assistant state’s attor-
ney, with whom, on the brief, was Michael J. Proto,
assistant state’s attorney, for the appellee (respondent).
                          Opinion

  LAVINE, J. The petition for a writ of habeas corpus
at issue in the present appeal is the third filed by the
petitioner, Lennard Toccaline. He appeals following the
habeas court’s denial of his petition for certification to
appeal from the judgment of the habeas court granting
the motion to dismiss filed by the respondent, the Com-
missioner of Correction. He claims that the habeas
court abused its discretion by denying his petition for
certification to appeal and improperly dismissed four
counts of his third amended petition. We dismiss the
appeal.
   The following facts and lengthy procedural history
are relevant to our resolution of the petitioner’s appeal.
In 1999, following a jury trial, the petitioner was con-
victed of sexual assault in the first degree in violation
of General Statutes § 53a-70 (a) (2), sexual assault in
the fourth degree in violation of General Statutes (Rev.
to 1995) § 53a-73a (a) (1) (A), and three counts of risk
of injury to a child in violation of General Statutes (Rev.
to 1995) § 53-21 (2), as amended by No. 95-142, § 1,
of the 1995 Public Acts. Subsequently, the trial court,
Sferrazza, J., found the petitioner guilty of being a
persistent felony offender in violation of General Stat-
utes (Rev. to 1995) § 53a-40 (a). The petitioner was
sentenced to a total effective term of forty years impris-
onment, execution suspended after twenty-five years,
followed by ten years of probation.
   In 2001, he appealed from his conviction,1 and our
Supreme Court set forth in detail the facts underlying
his conviction. It explained that the petitioner, a thirty-
five year old man, had engaged in three acts of sexual
contact with MC, the twelve year old victim.2 After MC
told her mother about the sexual contact, the petitioner
gave an incriminating statement to the police, which
was read to the jury at trial. In the statement, the peti-
tioner claimed that MC never objected to the contact
and that the contact did not constitute sexual inter-
course.3 State v. Toccaline, 258 Conn. 542, 546–47, 783
A.2d 450 (2001) (Toccaline I). Our Supreme Court
affirmed the petitioner’s conviction because the claims
were not reviewable4 but noted that ‘‘the jury was pre-
sented with significant evidence, aside from the vic-
tim’s testimony, that the sexual abuse had in fact
occurred. For example, MC’s physician testified that a
physical examination revealed that MC had experienced
vaginal penetration, which most likely was caused
through sexual relations. . . . Most importantly, the
[petitioner’s] own written statement corroborated
much of what MC claimed to have occurred.’’ (Empha-
sis added.) Id., 552 n.13.
  In 2002, the petitioner filed his first petition for a
writ of habeas corpus. He was represented by Attorney
Conrad Ost Seifert in both his first habeas trial and his
subsequent habeas appeal. His amended first petition
alleged: (1) eleven counts of ineffective assistance by
his trial counsel, Attorney Mark C. Hauslaib; (2) ineffec-
tive assistance by his direct appellate counsel, Attorney
Richard S. Cramer; and (3) factual innocence. Following
a habeas trial, the habeas court, Hon. Richard M. Rit-
tenband, judge trial referee, granted the petitioner’s
first petition on his claims of ineffective assistance by
trial and direct appellate counsel. Judge Rittenband
expressly rejected his actual innocence claim on the
ground that his incriminating statement to the police
made his claim meritless. Toccaline v. Commissioner of
Correction, Superior Court, judicial district of Hartford,
Docket No. CV-02-0814816S, 2002 WL 31304820, *1 (Sep-
tember 12, 2002) (Toccaline II), rev’d, 80 Conn. App.
792, 837 A.2d 849 (Toccaline III), cert. denied, 268 Conn.
907, 845 A.2d 413, cert. denied sub nom. Toccaline v.
Lantz, 543 U.S. 854, 125 S. Ct. 301, 160 L. Ed. 2d 90
(2004).
   The respondent appealed from Judge Rittenband’s
decision granting the habeas petition on the petitioner’s
claims of ineffective assistance by trial and direct appel-
late counsel, but the petitioner did not cross appeal as
to the denial of his actual innocence claim. This court
agreed with the respondent, reversing Judge Ritten-
band’s decision on the petitioner’s claims of ineffective
assistance by trial and direct appellate counsel, and,
accordingly, directed the habeas court on remand to
dismiss the petition.5 Toccaline III, supra, 80 Conn. App.
795, 820.
   In 2008, the petitioner filed his second petition for a
writ of habeas corpus. He was represented on the peti-
tion by the Pattis Law Firm. In his amended second
petition, he alleged: (1) ineffective assistance by his
habeas trial counsel, Seifert, during his first habeas trial,
and (2) actual innocence. On June 29, 2008, the habeas
court, Schuman, J., granted the respondent’s motion
to dismiss the petitioner’s actual innocence claim on the
ground of res judicata. Toccaline v. Warden, Superior
Court, judicial district of Tolland, Docket No. CV-05-
4000344-S, 2008 WL 2796997, *1 n.2 (June 25, 2008)
(Toccaline IV), aff’d, 119 Conn. App. 510, 987 A.2d 1097
(Toccaline V), cert. denied, 295 Conn. 921, 991 A.2d 566
(2010). After conducting a habeas trial, Judge Schuman
denied the petitioner’s ineffective assistance of habeas
trial counsel claim. Id., *1. The petitioner appealed from
Judge Schuman’s decision denying his ineffective assis-
tance of habeas trial counsel claim but did not challenge
on appeal the dismissal of his actual innocence claim.
Toccaline V, supra, 512 n.1. After certification to appeal
was granted, this court affirmed the judgment on
appeal. Id., 511–12.
  In 2012, the petitioner filed his third petition for a
writ a habeas corpus, which provides the basis of the
present appeal. On March 10, 2015, represented by
Attorney Andrew P. O’Shea, he filed a second amended
third petition, alleging: (1) actual innocence, (2) viola-
tion of his right to due process as a result of the prosecu-
tor’s failure to disclose material, exculpatory evidence
during his criminal trial, (3) violation of his right to
due process as a result of the prosecutor’s unknowing
presentation of false testimony during his criminal trial,
(4) ineffective assistance from his criminal trial counsel,
Hauslaib, (5) ineffective assistance from his first habeas
trial counsel, Seifert, during his first habeas trial (Tocca-
line II), (6) ineffective assistance from his first habeas
appellate counsel, Seifert, during his first habeas appeal
(Toccaline III), and (7) ineffective assistance from his
second habeas trial counsel, the Pattis Law Firm, during
his second habeas trial (Toccaline IV). On April 24,
2015, the respondent filed his return, in which he denied
the petitioner’s claims and asserted special defenses.
Thereafter, on May 28, 2015, he filed a motion to dismiss.
On June 3, 2015, the petitioner filed a third amended
petition, which is the operative petition in this appeal.
On June 19, 2015, the petitioner objected to the respon-
dent’s motion to dismiss.
   On June 23, 2015, the habeas court, Fuger, J., held
a hearing on the respondent’s motion to dismiss. On
August 21, 2015, the habeas court granted the respon-
dent’s motion to dismiss the petitioner’s third amended
petition. On August 25, 2015, the petitioner filed a peti-
tion for certification to appeal from the judgment, which
the habeas court denied. This appeal followed. Addi-
tional facts will be set forth as necessary.
   ‘‘Faced with a habeas court’s denial of a petition for
certification to appeal, a petitioner can obtain appellate
review of the dismissal of his petition for habeas corpus
only by satisfying the two-pronged test enunciated by
our Supreme Court in Simms v. Warden, 229 Conn.
178, 640 A.2d 601 (1994), and adopted in Simms v.
Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First,
he must demonstrate that the denial of his petition for
certification constituted an abuse of discretion. . . .
Second, if the petitioner can show an abuse of discre-
tion, he must then prove that the decision of the habeas
court should be reversed on the merits. . . .
   ‘‘To prove an abuse of discretion, the petitioner must
demonstrate [1] that the [resolution of the underlying
claim involves issues that] are debatable among jurists
of reason; [2] that a court could resolve the issues [in
a different manner]; or [3] that the questions are ade-
quate to deserve encouragement to proceed further.’’
(Internal quotation marks omitted.) Kearney v. Com-
missioner of Correction, 113 Conn. App. 223, 228, 965
A.2d 608 (2009); see also Simms v. Warden, supra, 230
Conn. 616, quoting Lozada v. Deeds, 498 U.S. 430, 432,
111 S. Ct. 860, 112 L. Ed. 2d 956 (1991). ‘‘In determining
whether the habeas court abused its discretion in deny-
ing the petitioner’s request for certification, we neces-
sarily must consider the merits of the petitioner’s
underlying claims to determine whether the habeas
court reasonably determined that the petitioner’s . . .
claims satisfy one or more of the three criteria . . . .
Absent such a showing by the petitioner, the judgment
of the habeas court must be affirmed.’’ (Internal quota-
tion marks omitted.) Mourning v. Commissioner of
Correction, 169 Conn. App. 444, 448, 150 A.3d 1166
(2016), cert. denied, 324 Conn. 908, 152 A.3d 1246
(2017).
   ‘‘The conclusions reached by the [habeas] court in
its decision to dismiss the habeas petition [on a motion
to dismiss] are matters of law, subject to plenary review.
. . . [W]here the legal conclusions of the court are chal-
lenged, we must determine whether they are legally and
logically correct . . . and whether they find support
in the facts in the record.’’ (Internal quotation marks
omitted.) Zollo v. Commissioner of Correction, 133
Conn. App. 266, 276, 35 A.3d 337, cert. granted on other
grounds, 304 Conn. 910, 39 A.3d 1120 (2012) (appeal
dismissed May 1, 2013).
   The petitioner claims that the habeas court improp-
erly dismissed counts one, three, six, and seven of his
third amended petition.6 In determining whether the
habeas court abused its discretion in denying the peti-
tion for certification to appeal, we must consider the
merits of the petitioner’s underlying claims to determine
whether they satisfy one or more of the three Simms
criteria set forth in Kearney and Lozada.
                             I
                      COUNT ONE
   The petitioner claims that the habeas court abused
its discretion when it denied his petition for certification
to appeal from the dismissal of his actual innocence
claim. We disagree.
  In count one, the petitioner raised, for the third time,
an actual innocence claim, arguing that he ‘‘did not have
a full and fair opportunity to litigate this claim in any
prior proceedings.’’ The habeas court granted the
respondent’s motion to dismiss count one on the ground
of res judicata.7
   ‘‘The doctrine of res judicata provides that a former
judgment serves as an absolute bar to a subsequent
action involving any claims relating to such cause of
action which were actually made or which might have
been made. . . . Specifically, in the habeas context, in
the interest of ensuring that no one is deprived of liberty
in violation of his or her constitutional rights . . . the
application of the doctrine of res judicata . . . [is lim-
ited] to claims that actually have been raised and liti-
gated in an earlier proceeding. . . .
  ‘‘[W]here successive petitions are premised on the
same legal grounds and seek the same relief, the second
petition will not survive a motion to dismiss unless
the petition is supported by allegations and facts not
reasonably available to the petitioner at the time of the
original petition.’’ (Citations omitted; internal quotation
marks omitted.) Kearney v. Commissioner of Correc-
tion, supra, 113 Conn. App. 233–35.
   In the absence of any newly discovered evidence or
allegations of new facts, we conclude that the habeas
court properly determined that the petitioner’s actual
innocence claim was barred by the doctrine of res judi-
cata. After conducting a full evidentiary hearing, Judge
Rittenband found that the petitioner’s actual innocence
claim was meritless in light of the petitioner’s inculpa-
tory written statement to the police. Toccaline II, supra,
2002 WL 31304820, *16. Thus, the claim was previously
raised, fully litigated, and decided on the merits. The
petitioner did not file a cross appeal as to Judge Ritten-
band’s decision rejecting that claim or appeal from
Judge Schuman’s dismissal of this claim on the ground
that it was barred by the doctrine of res judicata. On
appeal, the petitioner concedes that he did not have,
and did not intend to present, any ‘‘newly discovered
evidence.’’
   Because the petitioner’s claim has no merit, we con-
clude that the habeas court did not abuse its discretion
in denying his petition for certification to appeal as to
count one of his third amended petition.
                             II
                     COUNT THREE
   The petitioner next claims that the habeas court
abused its discretion in denying his petition for certifica-
tion to appeal from the dismissal of his claim that his
federal and state rights to due process were violated
because of the prosecutor’s unknowing presentation of
false testimony at his criminal trial.8 We disagree.
   In count three, the petitioner alleged that the prosecu-
tor ‘‘unknowingly presented the . . . false testimony’’
of MC, her aunt, and her mother9 at his criminal trial.10
The habeas court granted the respondent’s motion to
dismiss count three on the ground that the petitioner
failed to state a claim upon which relief can be granted
because ‘‘there is no established precedent in this state
to support and grant habeas corpus relief as to count
[three].’’11
   Our Supreme Court ‘‘has not yet addressed the ques-
tion of whether the state’s unknowing use of perjured
testimony violates due process principles. . . .
Although [a] majority of the federal circuit courts
require a knowing use of perjured testimony by the
prosecution to find a violation of due process . . . the
United States Court of Appeals for the Second Circuit
[in Ortega v. Duncan, 333 F.3d 102, 108 (2d Cir. 2003)]
has held that, when false testimony is provided by a
government witness without the prosecution’s knowl-
edge, due process is violated . . . if the testimony was
material and the court [is left] with a firm belief that
but for the perjured testimony, the defendant would
most likely not have been convicted.’’ (Citations omit-
ted; internal quotation marks omitted.) Horn v. Com-
missioner of Correction, 321 Conn. 767, 800–801, 138
A.3d 908 (2016).12 ‘‘The United States Supreme Court
has not addressed the issue.’’ Gould v. Commissioner of
Correction, 301 Conn. 544, 570 n.18, 22 A.3d 1196 (2011).
   We conclude that the petitioner’s claim fails for two
reasons. First, there is no Connecticut case that sup-
ports the proposition that the petitioner’s due process
rights could have been violated by the prosecutor’s
presentation of false testimony when the prosecutor
neither knew nor should have known that the testimony
was false, and the issue has not yet been decided by
the United States Supreme Court. Second, even under
the more lenient approach taken by the Second Circuit
in Ortega, his claim would still fail. The petitioner can-
not show that absent the inaccurate testimony of MC,
her mother, and her aunt, there is a reasonable probabil-
ity that he would not have been convicted in light of
the other significant, incriminating evidence presented
against him, most notably his own admission that he
had sexual contact with MC. See footnote 3 of this
opinion; see also Horn v. Commissioner of Correction,
supra, 321 Conn. 801–802 (reaching similar conclusion).
   Because the claim has no substantive merit, we con-
clude that the habeas court did not abuse its discretion
in denying his petition for certification to appeal as to
count three of his third amended petition.
                            III
                       COUNT SIX
   The petitioner next claims that the habeas court
abused its discretion in denying his petition for certifica-
tion to appeal from its dismissal of his claim that Seifert
was ineffective in representing him in his first habeas
appeal. The respondent concedes that the habeas court
improperly dismissed count six on the ground that it
was successive. We agree that the habeas court improp-
erly concluded that the claim was successive. Neverthe-
less, we conclude that the habeas court did not abuse
its discretion in denying certification to appeal on the
alternative ground that the petitioner’s claim is mer-
itless.13 We review the petitioner’s claim solely to deter-
mine whether the habeas court abused its discretion
in denying certification to appeal.
   In count five of his third amended petition, the peti-
tioner alleged that Seifert was ineffective in represent-
ing him in his first habeas trial before Judge Rittenband
in Toccaline II, in part, because Seifert ‘‘failed to ade-
quately motion for the habeas court to articulate its
factual findings in support of its conclusion that trial
counsel provided ineffective assistance to the petitioner
by: (i) failing to object to the improper bolstering of
the complainant’s credibility by state’s witnesses; and,
(ii) failing to present an adequate alibi defense.’’14 The
petitioner alleged in count six that Seifert was ineffec-
tive in representing the petitioner in appealing from
Judge Rittenband’s decision to this court in Toccaline
III for the same reason articulated in count five.
   The habeas court granted the respondent’s motion
to dismiss count six, stating that ‘‘the claim in count
six is the same generic legal basis for the same relief
asserted as a component of count five. . . . The
ground—ineffective assistance by the identical attorney
on appeal from the case in which he was habeas coun-
sel—is indistinguishable. The petitioner merely
reformulates a claim from count five in the context of
count six. Additionally, any relief the petitioner would
obtain as to the claims in counts five and six is identical
(i.e., a new criminal trial) because he has to convince
a habeas or appellate court that he has undermined
the reliability of his conviction. The court, therefore,
dismisses count six because it is successive, albeit
because count six is an alternative way in which a part
of count five is alleged. Practice Book § 23-29 (3) and
(5).’’ (Citation omitted; internal quotation marks
omitted.)
   ‘‘The claim of ineffective assistance of habeas [appel-
late] counsel, when added to the claim of ineffective
assistance of [habeas] trial counsel, results in a different
issue. . . . A claim of ineffective assistance of counsel
involving a habeas attorney is not subject to dismissal
on the ground that an earlier habeas petition that was
based on the ineffectiveness of trial counsel had been
unsuccessful.’’ (Citation omitted; internal quotation
marks omitted.) Johnson v. Commissioner of Correc-
tion, 168 Conn. App. 294, 309–10, 145 A.3d 416, cert.
denied, 323 Conn. 937, 151 A.3d 385 (2016).
  The claim in count six—that Seifert was ineffective
in representing the petitioner as his habeas appellate
counsel—was not successive because the petitioner did
not raise this claim in any prior proceeding. Moreover,
the petitioner, who was then represented by the Pattis
Law Firm, did not allege in his second petition that
Seifert was ineffective at the first habeas trial on the
ground that Seifert failed to move to have Judge Ritten-
band articulate his factual findings. Therefore, although
we affirm the habeas court’s denial of certification to
appeal on an alternative ground, we conclude that the
habeas court improperly concluded that count six
was successive.
   ‘‘In a habeas appeal, this court cannot disturb the
underlying facts found by the habeas court unless they
are clearly erroneous, but our review of whether the
facts as found by the habeas court constituted a viola-
tion of the petitioner’s constitutional right to effective
assistance of counsel is plenary. . . .
   ‘‘Our Supreme Court has adopted [the] two part analy-
sis [set forth in Strickland v. Washington, 466 U.S. 668,
687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)] in reviewing
claims of ineffective assistance of appellate counsel.
. . . To prevail on a claim of ineffective assistance of
counsel, a petitioner must show (1) that counsel’s per-
formance was deficient and (2) that the deficient perfor-
mance prejudiced the defense. . . . Because the
petitioner must satisfy both prongs of the Strickland
test to prevail on a habeas corpus petition, this court
may dispose of the petitioner’s claim if he fails to meet
either prong. . . .
   ‘‘Under the performance prong, [a] court must
indulge a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional
assistance . . . . [Although] an appellate advocate
must provide effective assistance, he is not under an
obligation to raise every conceivable issue. A brief that
raises every colorable issue runs the risk of burying
good arguments . . . in a verbal mound made up of
strong and weak contentions. . . . [I]f the issues not
raised by his appellate counsel lack merit, [the peti-
tioner] cannot sustain even the first part of this dual
burden since the failure to pursue unmeritorious
claims cannot be considered conduct falling below the
level of reasonably competent representation.’’ (Cita-
tions omitted; emphasis added; footnote omitted; inter-
nal quotation marks omitted.) Gray v. Commissioner
of Correction, 138 Conn. App. 171, 176–78, 50 A.3d 406,
cert. denied, 307 Conn. 929, 55 A.3d 570 (2012).
   On the basis of our review of the entire record, we
conclude that the petitioner has failed to show that
Seifert was ineffective during Toccaline III because he
failed to show that Seifert’s performance was deficient.
In count six of the petitioner’s third amended petition,
he alleged that Seifert was ineffective in representing
the petitioner in his first habeas appeal in Toccaline
III, in that Seifert ‘‘was deficient because he failed to
adequately motion for the habeas court to articulate its
factual findings in support of its conclusion that trial
counsel [Hauslaib] provided ineffective assistance to
the petitioner by: (A) failing to object to the improper
bolstering of the complainant’s credibility by state’s
witnesses; and, (B) failing to present an adequate alibi
defense.’’ The petitioner has failed to show, or even
assert, why an articulation by Judge Rittenband is
required to resolve the issue on appeal.
  Judge Rittenband, however, fully articulated his
decisions on both of these claims in Toccaline II when
he found that Hauslaib’s representation of the petitioner
was ineffective. In support of (A), Judge Rittenband
found that Hauslaib was ineffective in failing to object
to the questions posed to Elton Grunden, the state’s
expert who testified that it was ‘‘his opinion that the
victim had suffered sexual abuse perpetrated by the
[petitioner].’’ Toccaline II, supra, 2002 WL 31304820,
*2. Judge Rittenband also found Hauslaib ineffective
for failing to object to the prosecutor’s closing remarks
pertaining to Grunden’s testimony. Id., *4. In support
of (B), Judge Rittenband gave a detailed explanation
as to why Hauslaib was ineffective in failing to ‘‘present
effectively an alibi defense and/or factually impossible
defense for the petitioner to have committed the crimes
alleged.’’ Id., *6.
   This court in Toccaline III subsequently reversed
Judge Rittenband’s decision. This reversal, however,
was not on the ground that Judge Rittenband’s factual
findings were insufficient or that the record was inade-
quate for review. Rather, this court decided that Judge
Rittenband did not use the proper standard for deciding
ineffective assistance of counsel claims and that, when
analyzed under the Strickland standard, the petitioner
had failed to show that Hauslaib was ineffective
because he failed to show either that Hauslaib rendered
deficient performance or that he suffered prejudice
because of Hauslaib’s deficient performance. See Toc-
caline III, supra, 80 Conn. App. 800–17.
   Because the petitioner has failed to show that Judge
Rittenband did not articulate the factual findings sup-
porting his decision or allege which factual findings
were claimed to be absent, the petitioner’s claim that
Seifert was ineffective for failing to move to have Judge
Rittenband articulate his factual findings is unpersua-
sive. Therefore, the petitioner’s claim in count six is
without merit, and, accordingly, we conclude that the
habeas court did not abuse its discretion by denying
certification to appeal as to count six of his third
amended petition on an alternative legal ground than
that relied upon by the habeas court.
                           IV
                       COUNT 7
   The petitioner claims that the habeas court abused
its discretion by denying his petition for certification
to appeal from the dismissal of his claim that the Pattis
Law Firm was ineffective in representing him in his
second habeas trial in Toccaline IV. We disagree.
  The petitioner alleged in count seven of his third
amended petition that the Pattis Law Firm ‘‘was defi-
cient because [it] failed to adequately plead, prove, and
argue claims one through six of this third amended
petition . . . .’’ The habeas court granted the respon-
dent’s motion to dismiss count seven ‘‘because the claim
in count seven is premised on, and derivative of, the
claims in counts one through six, which have been
dismissed because they are either successive or barred
by res judicata, or fail to state a claim upon which
habeas corpus relief can be granted, [and, thus] the
court dismisses count seven because it fails to state a
claim upon which habeas corpus relief can be
granted . . . .’’
  ‘‘To succeed on a claim of ineffective assistance of
counsel, a habeas petitioner must satisfy the two-
pronged test articulated in Strickland v. Washington,
[supra, 466 U.S. 687]. . . . That requires the petitioner
to show (1) that counsel’s performance was deficient
and (2) that the deficient performance prejudiced the
defense. . . .
   ‘‘[When] applied to a claim of ineffective assistance
of prior habeas counsel, the Strickland standard
requires the petitioner to demonstrate that his prior
habeas counsel’s performance was ineffective and that
this ineffectiveness prejudiced the petitioner’s prior
habeas proceeding. . . . [T]he petitioner will have to
prove that one or both of the prior habeas counsel, in
presenting his claims, was ineffective and that effective
representation by habeas counsel establishes a reason-
able probability that the habeas court would have found
that he was entitled to reversal of the conviction and
a new trial . . . . Therefore . . . a petitioner claiming
ineffective assistance of habeas counsel on the basis of
ineffective assistance of [trial] counsel must essentially
satisfy Strickland twice: he must prove both (1) that
his appointed habeas counsel was ineffective, and (2)
that his [trial] counsel was ineffective. . . . We have
characterized this burden as presenting a herculean
task.’’ (Citations omitted; internal quotation marks
omitted.) Mukhtaar v. Commissioner of Correction,
158 Conn. App. 431, 437–39, 119 A.3d 607 (2015). ‘‘This
standard holds a petitioner to a higher standard when
claiming ineffective assistance of habeas counsel; it
does not require this court to hear improperly raised
issues.’’ Maldonado v. Commissioner of Correction,
141 Conn. App. 455, 463, 62 A.3d 528, cert. denied, 308
Conn. 941, 66 A.3d 883 (2013). We conclude that the
petitioner has not performed this herculean task.
                             A
   The petitioner alleged that the Pattis Law Firm was
ineffective in failing to adequately plead and prove
count one, which was his actual innocence claim. As
explained in part I of this opinion, the petitioner’s actual
innocence claim was fully litigated and decided on the
merits. Judge Rittenband decided that with ‘‘the exis-
tence of the alleged confession, [and the] petitioner’s
written statement to the state police, this court cannot
find by clear and convincing evidence that [the] peti-
tioner is factually innocent.’’ Toccaline II, supra, 2002
WL 31304820, *16. The petitioner did not file a cross
appeal as to Judge Rittenband’s decision on this claim
or as to Judge Schuman’s dismissal of this claim on the
ground of res judicata. Therefore, the Pattis Law Firm
could not be ineffective because the claim in count one
was successive, and the petitioner cannot show
prejudice.
                             B
   The petitioner alleged that the Pattis Law Firm was
ineffective in failing to raise count two, in which the
petitioner claimed that the prosecutor violated his fed-
eral and state constitutional rights to due process when
the prosecutor ‘‘failed to timely disclose to the peti-
tioner or his counsel a police report from March 30,
1998 . . . .’’ This claim was also fully litigated, and this
court decided that the habeas court incorrectly found
that the petitioner was prejudiced by the absence of
the report. Toccaline III, supra, 80 Conn. App. 809.
Therefore, the Pattis Law Firm could not be ineffective
for failing to raise this claim because the claim in count
two would have been successive, and the petitioner
could not have been prejudiced by the failure to raise it.
                             C
   The petitioner alleged that the Pattis Law Firm was
ineffective in failing to raise count three, in which the
petitioner argued that the prosecutor violated his con-
stitutional right to due process by unknowingly pre-
senting false testimony. As noted in part II of this
opinion, his claim is, and was at the time of the petition-
er’s criminal trial and subsequent appeals, unsupported
by either Connecticut state or federal law. ‘‘[T]o per-
form effectively, counsel need not recognize and raise
every conceivable constitutional claim’’; Ledbetter v.
Commissioner of Correction, 275 Conn. 451, 460, 880
A.2d 160 (2005), cert. denied sub nom. Ledbetter v.
Lantz, 546 U.S. 1187, 126 S. Ct. 1368, 164 L. Ed. 2d 77
(2006); and ‘‘counsel’s failure to advance novel legal
theories or arguments does not constitute ineffective
performance.’’ Id., 461. Thus, the petitioner cannot
show that the Pattis Law Firm’s performance was defi-
cient in failing to assert the claim in count three because
the petitioner failed to state a claim upon which relief
could be granted in count three.
                             D
   The petitioner alleged that the Pattis Law Firm was
ineffective in failing to raise count four, in which the
petitioner claimed that Hauslaib rendered ineffective
assistance of trial counsel. All of these allegations were
previously addressed and fully litigated in Toccaline
III, and this court determined that either Hauslaib did
not render deficient performance or that the petitioner
was not prejudiced by any deficient performance.15 See
Toccaline III, supra, 80 Conn. App. 800–18. Therefore,
the petitioner cannot show that the Pattis Law Firm
was ineffective for failing to raise the claim in count
four in his second habeas trial because the claim would
have been successive, and the petitioner suffered no
prejudice by the failure to raise it.
                             E
  The petitioner alleged that the Pattis Law Firm was
ineffective in failing to adequately argue count five, in
which the petitioner claimed that Seifert was ineffective
as his first habeas counsel. As with count four, Judge
Schuman and this court previously found that Seifert
was not ineffective, in particular, that Seifert was not
ineffective for failing to raise a claim that Hauslaib was
ineffective for failing to file a motion for a new trial
during the criminal proceedings. Toccaline IV, supra,
2008 WL 2796997, *1–3; see also Toccaline V, supra, 119
Conn. App. 514–16.
   Although the third claim of ineffective assistance of
counsel was not raised in the second petition; see part
III of this opinion; the petitioner could have brought
this claim in his second habeas petition because there
are no facts or allegations that were not previously
available to him at the time the Pattis Law Firm filed
the second petition. ‘‘[W]here successive petitions are
premised on the same legal grounds and seek the same
relief, the second petition will not survive a motion to
dismiss unless the petition is supported by allegations
and facts not reasonably available to the petitioner at
the time of the original petition.’’ (Internal quotation
marks omitted.) Maldonado v. Commissioner of Cor-
rection, supra, 141 Conn. App. 462; see Carpenter v.
Commissioner of Correction, 274 Conn. 834, 846, 878
A.2d 1088 (2005) (‘‘a petitioner can abuse the writ by
raising a claim in a subsequent petition that he could
have raised in his first, regardless of whether the failure
to raise it earlier stemmed from a deliberate choice’’
[quoting McCleskey v. Zant, 499 U.S. 467, 489, 111 S.
Ct. 1454, 113 L. Ed. 2d 517 (1991)]).
   Because the claim in count five was successive, the
petitioner cannot show that the Pattis Law Firm was
ineffective in arguing this claim at his second habeas
trial, for the petitioner could not have suffered prejudice
due to counsel’s failure to raise it.
                             F
  Finally, the petitioner alleged that the Pattis Law Firm
was ineffective in failing to raise count six, in which
he alleged that Seibert was ineffective in representing
him during his first habeas appeal. We conclude that
the Pattis Law Firm was not ineffective for failing to
argue this claim because the petitioner failed to show
that he suffered prejudice.
   First, as explained in part III of this opinion, the claim
would have been meritless. Second, despite the lengthy
history of litigation presented by this case, we cannot
ignore our Supreme Court’s conclusion in the petition-
er’s direct appeal in 2001. It noted the obvious fact
that there was other ‘‘significant evidence’’; Toccaline
I, supra, 258 Conn. 552 n.13; that supported the petition-
er’s guilt, notably the testimony of MC’s physician that
MC suffered sexual trauma and the petitioner’s own
admission that he had had sexual contact with her. See
footnote 3 of this opinion; Toccaline I, supra, 547 n.7
and 552 n.13. In short, even if the petitioner could show
that any one of his attorneys’ performances was defi-
cient, we conclude that the petitioner has failed to show
that he suffered any prejudice because he cannot show
that, in light of the incriminating evidence against him,
the outcome of his criminal trial would have been differ-
ent. See Mukhtaar v. Commissioner of Correction,
supra, 158 Conn. App. 443–44.
   Because the petitioner’s claim has no merit, we con-
clude that the habeas court did not abuse its discretion
in denying certification to appeal from the dismissal of
count seven of his third amended petition. The peti-
tioner has not shown that the issues are debatable
among jurists of reason, that the court could resolve
the issues in a different manner or that the questions are
adequate to deserve encouragement to proceed further.
      The appeal is dismissed.
      In this opinion the other judges concurred.
  1
     Our Supreme Court transferred the petitioner’s appeal from this court
pursuant to Practice Book § 65-4. State v. Toccaline, 258 Conn. 542, 545 n.5,
783 A.2d 450 (2001).
   2
     In accordance with our policy of protecting the privacy interests of the
victims of sexual abuse and the crime of risk of injury to a child, we decline
to identify the victim or others through whom the victim’s identity may be
ascertained. See General Statutes § 54-86e.
   3
     ‘‘The [petitioner’s] statement provided in relevant part: On one occasion
when [MC] was over she and I had been horsing around. . . . I recall that
MC usually had worn either a halter top and shorts, a bathing suit or usually
some other summer attire. During our horsing around I recall that I moved
her T-shirt up exposing her mid section, put my mouth on her skin and
blew onto her skin causing a fart like noise. . . . I may have put my mouth
on her in the area of her breasts and if I hit any part of her breast it was
by accident. [MC] had just begun to develop her breast[s] and my mouth
never touched her nipples. . . . During the time when [MC] and I were
horsing around [on the boat] I may have had an erection and [MC] may
have grabbed my erection by accident. When she may have grabbed my
erection she didn’t make a big deal about it. I never asked [MC] to grab my
erection. After [MC] grabbed my erection, she didn’t make a big deal about
it and I never mentioned this incident to anyone. . . . On one occasion, I
recall being on my bed in the bedroom. . . . During our horsing around I
ended up on top of her on the bed. Sometime during our horsing around
she would sometime[s] get the advantage and end up on top of me. When
I ended up on top of her I recall having her arms pinned up above her head
holding her down. I was on top of her for just a couple of minutes and as
I was on top of her she was moving around trying to get away. . . . While
she was trying to get away her clothes were moving around. During the
time I was on top of her when we were horsing around, it’s possible that
I became excited and got an erection. Being in the position that I was in
on top of her she would have felt my erection in the area of her vagina.
Due to the fact that we were both moving around she may have misunder-
stood that for sexual contact.’’ (Internal quotation marks omitted.) State v.
Toccaline, supra, 258 Conn. 547 n.7.
   4
     The petitioner’s claims on direct appeal were that ‘‘the trial court improp-
erly permitted an expert witness to offer his opinion as to the credibility
of the victim’s claims of sexual assault by the [petitioner] and further, to
testify regarding the guilt of the [petitioner].’’ Toccaline I, supra, 258 Conn.
543–44. Our Supreme Court concluded that ‘‘[a]lthough the trial court, upon
proper objection by the [petitioner], would have been required to exclude
this testimony, the presentation of [the expert’s] statements to the jury in
the absence of such an objection did not implicate a constitutional right or
result in a fundamentally unfair trial.’’ Id., 550–51. It also concluded that
‘‘the trial court’s admission of [the expert’s] testimony was not plain error.
. . . [W]e see nothing in the record that leads us to conclude that the verdict
constituted manifest injustice to the [petitioner] or will lead to diminished
confidence in our judicial system.’’ (Emphasis added.) Id., 553.
    5
      This court found that Judge Rittenband (1) ‘‘improperly found trial coun-
sel ineffective by failing to object to inappropriate testimony of the state’s
[expert witness]’’; Toccaline III, supra, 80 Conn. App. 803; because Attorney
Hauslaib’s decision to not object to the testimony was a matter of trial
strategy and that even if his performance in failing to object was deficient,
the petitioner could not show that he suffered prejudice in light of the
other ‘‘ ‘significant evidence’ ’’ of the petitioner’s guilt; id.; (2) ‘‘improperly
concluded that Hauslaib was ineffective for not requesting the sequestration
of the [witnesses]’’ because his decision was a matter of trial strategy; id.,
804; (3) ‘‘incorrectly concluded that it was ineffective for Hauslaib not to
have objected to the prosecutor’s closing remarks to the jury’’; id., 805;
regarding the expert’s testimony because the testimony was already in evi-
dence and, therefore, the prosecutor did not commit impropriety in com-
menting on the evidence; id., 806; (4) ‘‘incorrectly found that the petitioner
was prejudiced by the absence of [a certain] police report’’; id., 809; because
the issue of the relationship between [another individual] and the victim
was already ‘‘squarely before the jury’’; id.; (5) ‘‘incorrectly found Hauslaib
ineffective for failing to present an adequate alibi defense’’; id.; because ‘‘[i]t
is unreasonable to conclude that presented with the petitioner’s inculpatory
statement as well as the state’s evidence in chief, the outcome of the trial
could have been different had the petitioner been able to present further
evidence concerning his whereabouts on certain dates not contained within
the state’s charging document or part of its case-in-chief’’; id., 811; (6)
‘‘incorrectly granted the habeas petition on the ground that Hauslaib was
ineffective for not having the petitioner testify at the suppression hearing
concerning the petitioner’s statement to the police’’; id., 811–12; because
the petitioner failed to show that he suffered prejudice; id., 813; (7) ‘‘incor-
rectly found Hauslaib ineffective for not having the petitioner testify at the
criminal trial that he was innocent of the charges’’; id., 814; because the
decision was a matter of sound trial strategy; id., 815; (8) ‘‘incorrectly con-
cluded that Hauslaib was ineffective for failing to investigate’’; id.; because
the record was clear that ‘‘the petitioner did not inform his trial counsel
about’’; id., 817; the existence of a potentially material witness until after
the trial had ended; id., 816–17; (9) incorrectly found that Hauslaib was
ineffective for not failing to file a motion for a new trial on the basis of
newly discovered evidence because the petitioner failed to plead this claim
in his petition; id., 817; and (10) ‘‘improperly ruled that the petitioner had
established ineffective assistance of appellate counsel’’; id., 818; because
the prosecutor did not engage in impropriety, and, therefore, Cramer could
not have been ineffective for failing to ask our Supreme Court to exercise
its supervisory authority to review a prosecutorial impropriety claim. Id., 819.
    6
      The petitioner has not challenged on appeal the habeas court’s dismissal
of counts two, four, and five of his third amended petition.
    7
      The habeas court also concluded that count one failed because it was
‘‘successive [and] not premised on newly discovered evidence that was not
reasonably available at any of the prior proceedings . . . .’’ We conclude
that the habeas court did not abuse its discretion in dismissing count one
on these grounds as well. See Zollo v. Commissioner of Correction, supra,
133 Conn. App. 279; Weinberg v. Commissioner of Correction, 112 Conn.
App. 100, 119, 962 A.2d 155, cert. denied, 291 Conn. 904, 967 A.2d 1221 (2009).
    8
      The petitioner does not argue that the prosecutor unknowingly presented
perjured testimony. See United States v. Monteleone, 257 F.3d 210, 219 (2d
Cir. 2001) (‘‘[a] witness commits perjury if he gives false testimony concern-
ing a material matter with the willful intent to provide false testimony, as
distinguished from incorrect testimony resulting from confusion, mistake,
or faulty memory’’), cert. denied, 535 U.S. 1070, 122 S. Ct. 1946, 152 L. Ed.
2d 849 (2002). He also does not argue that the prosecutor should have
known that the testimony of MC, her aunt and her mother was false. See
Adams v. Commissioner of Correction, 309 Conn. 359, 371–72, 71 A.3d
512 (2013).
    9
      MC’s aunt and MC’s mother testified at the petitioner’s first habeas trial.
Judge Rittenband found that, in light of the other potential alibi evidence
the petitioner presented at the habeas trial, the testimony of MC, her mother,
and her aunt at the petitioner’s criminal trial was false with regard to the
year in which the sexual assaults occurred. Toccaline II, supra, 2002 WL
31304820, *13–14.
    10
       The respondent argues at length on appeal that the petitioner cannot
overcome the defense of ‘‘procedural default.’’ Although the respondent
asserted the affirmative defense of procedural default in his reply, he failed
to assert it in his motion to dismiss. Therefore, we will not consider the
respondent’s argument.
   11
      The habeas court also found that the petitioner failed to show prejudice
as a result of any violation on the basis of this court’s conclusion that the
petitioner failed to show that he suffered prejudice as a result of Hauslaib’s
performance. We need not decide whether the habeas court properly relied
on this court’s analysis in rendering its decision.
   12
      The Second Circuit held that the prosecutor unknowingly presented
perjured testimony and that the jury would not have found the defendant
guilty without the perjured testimony. Ortega v. Duncan, supra, 333 F.3d
108 n.3 and 109. It is unclear whether Ortega requires that a petitioner show
that the testimony at issue was in fact perjured or only that it was false. In
any event, the Second Circuit represents the minority viewpoint. See, e.g.,
Killian v. Poole, 282 F.3d 1204, 1208–1209 (9th Cir. 2002), cert. denied, 537
U.S. 1179, 123 S. Ct. 992, 154 L. Ed. 2d 927 (2003). The clear majority of
jurisdictions require that a petitioner must prove that the prosecutor knew
or should have known that the testimony at issue was false in order to
establish a due process violation. See Horn v. Commissioner of Correction,
supra, 321 Conn. 800–801; Westberry v. Commissioner of Correction, 169
Conn. App. 721, 735, 152 A.3d 87 (2016), cert. denied, 324 Conn. 914, 153
A.3d 1289 (2017).
   13
      ‘‘That the court relied on a wrong theory does not render the judgment
erroneous. We can sustain a right decision although it may have been placed
on a wrong ground.’’ (Internal quotation marks omitted.) Tyson v. Commis-
sioner of Correction, 155 Conn. App. 96, 105 n.4, 109 A.3d 510, cert. denied,
315 Conn. 931, 110 A.3d 432 (2015).
   14
      The petitioner alleged in count five that Seifert’s performance ‘‘was
deficient because: (A) he failed to adequately plead, prove, and argue claims
one through four of this third amended petition for a writ of habeas corpus;
(B) he failed to adequately create and preserve a record for review; and,
(C) he failed to adequately motion for the habeas court to articulate its
factual findings in support of its conclusion that trial counsel provided
ineffective assistance to the petitioner by: (i) failing to object to the improper
bolstering of the complainant’s credibility by state’s witnesses; and, (ii)
failing to present an adequate alibi defense.’’
   15
      To the extent that Hauslaib was deficient in failing to file a motion for
a new trial after the jury returned its verdict, we conclude that the petitioner
failed to show that he suffered any prejudice in light of the inculpatory
statement he gave to the police admitting that he had had sexual contact
with MC. See footnote 3 of this opinion; Toccaline I, supra, 258 Conn.
552 n.13.
