Mozell v. Commissioner of Correction , 147 Conn. App. 748 ( 2014 )

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TROY MOZELL v. COMMISSIONER OF CORRECTION
(AC 34568)
Beach, Alvord and Bear, Js.
Argued September 24, 2013—officially released January 28, 2014
(Appeal from Superior Court, judicial district of
Tolland, Cobb, J.)
Cheryl A. Juniewic, assigned counsel, for the appel-
lant (petitioner).
James A. Killen, senior assistant state’s attorney,
with whom, on the brief, were Michael Dearington,
state’s attorney, and David Clifton, deputy assistant
state’s attorney, for the appellee (respondent).
Opinion
BEACH, J. The petitioner, Troy Mozell, appeals fol-
lowing the denial of his petition for certification to
appeal from the judgment of the habeas court dismiss-
ing the fourth count of his petition for a writ of habeas
corpus ‘‘with prejudice.’’ The petitioner claims that the
court erred in (1) denying his oral motion to amend his
petition, and (2) accepting his withdrawal of count four
of his petition ‘‘with prejudice.’’ The petitioner also
claims that the court abused its discretion in denying
his petition for certification to appeal. We dismiss the
appeal with respect to the first claim. With respect to
the second claim, we agree that the court abused its
discretion in denying the petition for certification to
appeal, but conclude that the petitioner cannot prevail
on the merits of his claim.
This court has previously set forth the following facts
that the jury reasonably could have found at the peti-
tioner’s underlying criminal trial. In March, 1991, the
petitioner and others were under surveillance by the
New Haven police as suspected members of a drug ring.
State v. Mozell, 36 Conn. App. 672, 673, 652 A.2d 1060(1995). After obtaining search warrants, the police
found a .38 caliber handgun at the residence of Nicole
Lowery and a safe containing a large quantity of crack
cocaine at a residence of another suspected member
of the drug ring. Id. The petitioner was arrested and
later convicted, following a jury trial, of possession
of narcotics with intent to sell in violation of General
Statutes § 21a-278, and conspiracy to sell narcotics in
violation of General Statutes §§ 21a-278 and 53a-48. Id.
His conviction was upheld on appeal. Id., 672. In his first
habeas petition, the petitioner alleged that his appellate
counsel was ineffective for failing to raise various issues
on direct appeal. Mozell v. Commissioner of Correc-
tion, 51 Conn. App. 818, 820, 725 A.2d 971 (1999). The
habeas court’s dismissal of his petition was upheld on
appeal. Id., 824. The petitioner filed a second habeas
petition, which the habeas court denied. The denial of
his petition by the habeas court was affirmed on appeal.
See Mozell v. Commissioner of Correction, 120 Conn.
App. 902, 990 A.2d 391, cert. denied, 297 Conn. 906, 995
A.2d 634 (2010).
In September, 2009, the petitioner filed his third
habeas petition, which is the subject of this appeal.
In his second amended petition, the petitioner alleged
ineffective assistance of trial counsel (count one),
direct appellate counsel (count two), first habeas coun-
sel (count three), and second habeas counsel (count
four). The respondent, the Commissioner of Correction,
moved to dismiss counts one through three of the sec-
ond amended petition on the ground that those counts
‘‘present the same grounds as a prior petition previously
denied and [fail] to state new facts or proffer new evi-
dence not reasonably available at the time of the
prior petition.’’
On February 22, 2012, the day on which the habeas
trial was to begin, the court granted the respondent’s
motion to dismiss, reasoning that ‘‘counts one, two and
three [of the second amended petition] involve the same
or substantially the same grounds that have or could
have been raised in prior petitions, seek the same relief,
and fail to allege any facts that were not reasonably
available to the petitioner at the time the other petitions
were pursued.’’ The court noted that ‘‘[t]hat leaves us
with count four, which is an ineffective assistance claim
against prior habeas counsel . . . .’’ When the court
inquired as to whether the petitioner’s counsel was
ready to proceed on count four, the petitioner’s counsel
asked the court for permission to amend the habeas
petition, and the court, at counsel’s request, permitted
the petitioner to address the court personally to state
the nature of the claims sought to be added. After the
court denied this request, the petitioner, addressing the
court himself, stated, ‘‘I wish to move to withdraw my
habeas, then. There’s no sense of going through the
whole process . . . .’’ The court called a recess to give
the petitioner a chance to talk to his counsel.
Following the recess, the petitioner’s counsel
informed the court that the petitioner still wanted to
withdraw the habeas petition.1 The court stated that if
the petitioner wanted to withdraw the fourth count,
the court would accept the withdrawal, but only with
prejudice.2 The court explained the ramifications, and,
after providing the petitioner with another opportunity
to discuss the matter with counsel, asked the petitioner
if he still wanted to withdraw his petition, to which
question the petitioner answered affirmatively. The
court accepted the withdrawal and the words ‘‘with
prejudice’’ were added to the withdrawal form. The
court thereafter denied the petition for certification to
appeal from the habeas court’s judgment. This appeal
followed.
We begin by setting forth the applicable standard of
review and procedural hurdles that the petitioner must
surmount to obtain appellate review of the merits of a
habeas court’s denial of the habeas petition following
denial of certification to appeal. ‘‘In Simms v. Warden,
229 Conn. 178, 187, 640 A.2d 601 (1994), we 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), we 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 deny-
ing 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]; or that the 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 dem-
onstrate that the judgment of the habeas court should
be reversed on its merits. . . . In determining whether
the habeas court abused its discretion in denying the
petitioner’s request for certification, we necessarily
must consider the merits of the petitioner’s underlying
claims to determine whether the habeas court reason-
ably determined that the petitioner’s appeal was frivo-
lous.’’ (Citations omitted; emphasis in original; internal
quotation marks omitted.) Castonguay v. Commis-
sioner of Correction, 300 Conn. 649, 657–58, 16 A.3d
676 (2011).
I
The petitioner first claims that the court abused its
discretion in denying his oral motion to amend his peti-
tion.3 We conclude that the court properly denied the
petition for certification to appeal with regard to this
claim.
‘‘We will not disturb a habeas court’s grant or denial
of permission to amend a pleading in the absence of a
clear abuse of discretion. . . . Pursuant to Practice
Book § 23-32, [t]he petitioner may amend the petition
at any time prior to the filing of the return. Following
the return, any pleading may be amended with leave
of the judicial authority for good cause shown. . . .
While our courts have been liberal in permitting amend-
ments . . . this liberality has limitations. Amendments
should be made seasonably. Factors to be considered
in passing on a motion to amend are the length of delay,
fairness to the opposing parties and the negligence, if
any, of the party offering the amendment. . . . The
motion to amend is addressed to the trial court’s discre-
tion which may be exercised to restrain the amendment
of pleadings so far as necessary to prevent unreasonable
delay of the trial.’’ (Citations omitted; emphasis omitted;
internal quotation marks omitted.) Pierce v. Commis-
sioner of Correction, 100 Conn. App. 1, 6–7, 916 A.2d
864, cert. denied, 282 Conn. 908, 920 A.2d 1017 (2007).
At the petitioner’s criminal trial, the gun found at
Lowery’s residence was admitted into evidence over
his objection. See State v. Mozell, supra, 36 Conn. App.
674. On February 22, 2012, at the habeas trial at issue,
the petitioner himself addressed the court following the
court’s granting of the respondent’s motion to dismiss.
He asked that the court permit him to amend his petition
to include a claim that the trial court violated his right
to due process by (1) permitting into evidence Lowery’s
gun and (2) by permitting the introduction into evidence
of ‘‘gang evidence’’ at his criminal trial. The court denied
the petitioner’s request and reasoned that, with refer-
ence to Practice Book § 23-32, the return already had
been filed and that the petitioner had not shown
good cause.
It was not an abuse of discretion for the court not
to allow the petitioner to amend his petition on the
day of trial to add additional claims regarding alleged
improprieties that had occurred at his criminal trial.
See Pierce v. Commissioner of Correction, supra, 100
Conn. App. 7 (not abuse of discretion for habeas court
to deny motion to amend petition where return already
filed and motion to amend filed two weeks prior to
habeas trial). Additionally, on direct appeal in State v.
Mozell, supra, 36 Conn. App. 677–78, this court already
had held that the trial court abused its discretion in
admitting Lowery’s gun into evidence and allowing the
testimony of Lowery concerning the gun, but that the
errors were harmless.
Because this issue is not debatable among jurists of
reason and does not deserve encouragement to proceed
further, and a court could not resolve the issue in a
different manner; see Simms v. Warden, supra, 230
Conn. 618; the habeas court did not abuse its discretion
in denying the petition for certification to appeal from
its denial of the habeas petition on this ground.
II
The petitioner next claims that the court erred in
accepting his withdrawal of the fourth count of his
petition ‘‘with prejudice.’’ We are not persuaded.
We begin by addressing the respondent’s argument
that this claim is not ripe for review. The respondent
reasons that the claim is not justiciable because with-
drawal with prejudice was not necessarily binding on
any subsequent habeas court and that any alleged preju-
dice is merely speculative until a future attempt to refile
the petition is frustrated. We disagree.
‘‘Ripeness is a justiciability doctrine, which impli-
cates the court’s subject matter jurisdiction.’’ Bloom v.
Miklovich, 111 Conn. App. 323, 336, 958 A.2d 1283(2008). An issue regarding justiciability presents a ques-
tion of law, over which review is plenary. See Esposito
v. Specyalski, 268 Conn. 336, 347–48, 844 A.2d 211(2004). ‘‘[T]he rationale behind the ripeness require-
ment is to prevent the courts, through avoidance of
premature adjudication, from entangling themselves in
abstract disagreements . . . . Accordingly, in
determining whether a case is ripe, a trial court must
be satisfied that the case before [it] does not present
a hypothetical injury or a claim contingent [on] some
event that has not and indeed may never transpire.’’
(Internal quotation marks omitted.) Janulawicz v.
Commissioner of Correction, 310 Conn. 265, 271, 77
A.3d 113 (2013).
We conclude that the petitioner’s claim is ripe for
review. Although the petitioner may choose not to refile
the fourth count in a new petition, or perhaps may
somehow be able to raise the claim in some forum in
the future, the withdrawal of that count ‘‘with preju-
dice’’ does not constitute a hypothetical injury4 contin-
gent on a future event. The court’s decision constituted
a final adjudication ending this matter and concluded
the petitioner’s rights with respect to this case. The
term ‘‘with prejudice’’ means ‘‘[w]ith loss of all rights;
in a way that finally disposes of a party’s claim and
bars any future action on that claim . . . .’’ Black’s
Law Dictionary (9th Ed. 2009); compare Schmier v.
McDonald’s, LLC, 569 F.3d 1240, 1242 (10th Cir. 2009)
(under [Federal Rules of Civil Procedure] voluntary
dismissal with prejudice operates as final adjudication
on merits);5 Feinsod v. Noon, 261 N.J. Super. 82, 84, 617
A.2d 1234 (App. Div. 1992) (withdrawal with prejudice
amounts to final disposition on matter).
Having determined that the claim is ripe, we now
turn to the merits. The petitioner argues that the court
erred in accepting his withdrawal ‘‘with prejudice’’
because a withdrawal with prejudice does not and
should not exist within our jurisprudence. He reasons
that the voluntariness of a withdrawal is nullified when
a court accepts a withdrawal with prejudice. He further
contends that the habeas court may grant a dismissal
only for one or more of the reasons listed in Practice
Book § 23-29 and that ‘‘[p]rior to the court granting
a dismissal, an evidentiary hearing6 must be held on
the issue.’’7
The disposition of withdrawal with prejudice exists
within Connecticut jurisprudence. See Fine v. Commis-
sioner of Correction, 147 Conn. App. 136, A.3d
(2013) (discussing canvass requirements for withdrawal
with prejudice); see also Mason v. Commissioner of
Correction, 80 Conn. App. 142, 144 n.1, 832 A.2d 1216(2003), cert. denied, 267 Conn. 910, 840 A.2d 1172(2004). Indeed, the disposition of withdrawal with preju-
dice is a logically compelling disposition in some cir-
cumstances. A plaintiff is generally empowered, though
not without limitation, to withdraw a complaint before
commencement of a hearing on the merits. See General
Statutes § 52-80. A plaintiff is not entitled to withdraw
a complaint without consequence at such hearing. See,
e.g., Melendez v. Commissioner of Correction, 141
Conn. App. 836, 62 A.3d 629, cert. denied, 310 Conn.
921, 77 A.3d 143 (2013). The disposition of withdrawal
with prejudice is well suited to the situation here. The
petitioner, therefore, cannot prevail on his claim that
the marking of ‘‘with prejudice’’ was erroneous on the
ground that it did not precisely fall into a category
specified in Practice Book § 23-29.8
The withdrawal with prejudice did not violate the
petitioner’s constitutional rights; the record shows it
was knowing, voluntary and intelligent.9 Cf. Fine v.
Commissioner of Correction, supra, 147 Conn. App.
147;10 see also Michigan Surgery Investment, LLC v.
Arman, 627 F.3d 572, 575 (6th Cir. 2010) (before con-
verting motion for voluntary dismissal without preju-
dice into dismissal with prejudice, under Federal Rules
of Civil Procedure, court must [1] give notice of inten-
tion to do so, [2] give plaintiff opportunity to be heard
in opposition and [3] must give plaintiff opportunity to
withdraw request for voluntary dismissal and proceed
with litigation).11 After the petitioner asked to withdraw
the fourth count, the court informed him that the with-
drawal would be ‘‘with prejudice.’’ The court explained
to the petitioner the ‘‘potential ramifications’’ of a with-
drawal with prejudice, stating: ‘‘That doesn’t mean that
you can’t bring another petition in the future . . . .
But what will happen, likely, is, when you bring that
new petition—it could be before me if I’m still here; it
could be before another judge—the [respondent] is
going to argue that . . . you were allowed to withdraw
your last petition with prejudice . . . . It’s a successive
petition; that we’re all wound up here ready to go; that
we have witnesses set up, and everybody is prepared
to go forward. Whether another judge would agree with
that or not, I don’t know. I can’t tell you what would
happen, but it’s a risk that you’re taking, and that’s
what you need to understand.’’ The court then gave the
petitioner time to discuss the matter with his counsel,
after which the court asked the petitioner: ‘‘[Y]ou have
decided after talking to your attorney that you do, in
fact, wish to withdraw your case, is that right?’’ The
petitioner answered: ‘‘Yes.’’ The court adequately
informed the petitioner of the ramifications,12 and the
petitioner still wanted to proceed with the withdrawal.
The court acted within its discretion in accepting
the withdrawal and adding, ‘‘with prejudice.’’ The court
explained: ‘‘[T]oo much has happened today in connec-
tion with this case to allow it to be withdrawn not with
prejudice . . . . And under the circumstances—many
of which have been expressed today by [the respon-
dent’s counsel]—that is why I am adding the with preju-
dice in this particular case.’’ The respondent’s counsel
had expressed the notion that the petitioner should
not be permitted to withdraw the fourth count without
prejudice. Witnesses had been subpoenaed and were
in court ready to proceed; expense such as setting up
videoconferencing for a witness in Nevada had been
incurred; evidence had begun, according to the respon-
dent’s counsel, in that some exhibits had already been
admitted in full;13 this was the petitioner’s third habeas
action; and that ‘‘[t]his is not exactly a new thing for [the
petitioner] to get to trial and be unhappy and attempt to
withdraw.’’ Habeas courts are given wide latitude in
fashioning remedies. See Negron v. Warden, 180 Conn.
153, 166 n.6, 429 A.2d 841 (1980) (‘‘[H]abeas corpus has
traditionally been regarded as governed by equitable
principles. . . . Among them is the principle that a suit-
or’s conduct in relation to the matter at hand may disen-
title him to the relief he seeks.’’ [Internal quotation
marks omitted.]).
We determine that the court abused its discretion in
denying the petition for certification to appeal on this
claim because it is debatable among jurists of reason.
We, conclude, however, that the petitioner cannot pre-
vail on the merits of this claim because the court acted
within its discretion in accepting the withdrawal of the
fourth count but only ‘‘with prejudice.’’
The appeal is dismissed as to the first claim and the
judgment is affirmed as to the second claim.
In this opinion the other judges concurred.
1
The petitioner’s counsel asked to ‘‘withdraw the current habeas petition
. . . .’’ The court later clarified that it had granted the respondent’s motion
to dismiss counts one through three, and asked the petitioner whether he
was currently seeking to withdraw the remaining fourth count. To which
question, the petitioner answered, ‘‘Yes.’’ The judgment file indicates that
counts one through three were dismissed and count four was ‘‘withdrawn
. . . .’’ The petitioner makes no claim on appeal regarding the dismissal of
counts one through three.
2
For reasons we will discuss, we hold that a withdrawal ‘‘with prejudice’’
is the functional equivalent of a dismissal.
3
The petitioner also claims that the court violated his right to due process
under the state and federal constitutions when it denied his oral motion to
amend his habeas petition. There is no merit to this claim.
4
The injury at this point, of course, is that this case concluded without
affording relief to the petitioner.
5
Precisely like ‘‘withdrawal with prejudice,’’ a ‘‘voluntary dismissal’’ pursu-
ant to the Federal Rules of Civil Procedure is a disposition initiated by a
plaintiff, which, if the court decides to dispose of the cause of action, is a
dismissal ‘‘with prejudice.’’ See Cabrera v. Esso Standard Oil Co (Puerto
Rico), Inc., 723 F.3d 82, 87 (1st Cir. 2013) (‘‘Rule 41 [a] [2] permits a plaintiff
to request dismissal of an action by court order, on terms that the court
considers proper. . . . The rule . . . provides that such a dismissal is with-
out prejudice, [u]nless the [court’s] order states otherwise. . . . Accord-
ingly, dismissal without prejudice is the norm, unless the court finds that the
defendant will suffer legal prejudice.’’ [Citations omitted; internal quotation
marks omitted.]).
6
The petitioner has not indicated why an evidentiary hearing was required
to resolve the issues presented in this appeal. He cites Mercer v. Commis-
sioner of Correction, 230 Conn. 88, 644 A.2d 340 (1994). Mercer, however,
stands for the rather unremarkable proposition that determinations of the
merits of a habeas corpus action ordinarily require evidentiary hearings.
The case before us is in a different posture altogether.
7
Practice Book § 23-29 provides: ‘‘The judicial authority may, at any time,
upon its own motion or upon motion of the respondent, dismiss the petition,
or any count thereof, if it determines that:
‘‘(1) the court lacks jurisdiction;
‘‘(2) the petition, or a count thereof, fails to state a claim upon which
habeas corpus relief can be granted;
‘‘(3) the petition presents the same ground as a prior petition previously
denied and fails to state new facts or to proffer new evidence not reasonably
available at the time of the prior petition;
‘‘(4) the claims asserted in the petition are moot or premature;
‘‘(5) any other legally sufficient ground for dismissal of the petition exists.’’
8
But see Practice Book § 23-29 (5). Under that subsection, the court may
dismiss the petition or any count thereof if it determines that ‘‘any other
legally sufficient ground for dismissal of the petition exists.’’ Practice Book
§ 23-29 (5).
Nevertheless, the petitioner’s argument that the court failed to provide
him with a hearing pursuant to Practice Book § 23-29 (3) fails. Whatever
the requirements of Practice Book § 23-29 (3) are, they do not apply even
if the court had dismissed count four because the fourth count itself was
not raised in a prior habeas petition.
9
The petitioner cites no authority for the proposition that his constitu-
tional rights were violated, and we conclude that there is no merit to this
claim.
10
Fine sets forth the procedures to be followed for a withdrawal with
prejudice, but concluded that the record was inadequate to determine in
that case whether such a withdrawal occurred. We conclude in this case
that a court, under certain circumstances, may accept a withdrawal only
with prejudice. Both a withdrawal with prejudice and a dismissal end a case
with finality and are functionally one in the same. A court is permitted under
Practice Book § 23-29 (5) to end a case via a dismissal, sua sponte, for any
‘‘legally sufficient ground . . . .’’ A court, then, by analogy, is also permitted
to end a case via the acceptance of a withdrawal with the sua sponte
addition of ‘‘with prejudice,’’ but only so long as the constitutional safeguards
addressed in Fine are followed.
11
By analogy to the Federal Rules of Civil Procedure, a petitioner’s request
to withdraw can be converted into a withdrawal with prejudice, as long as
certain safeguards are in place.
12
Prior to finally accepting the withdrawal with prejudice, the court
informed the petitioner that if the court accepted the withdrawal, there
could well be significant impediments to bringing the same claims again.
The court stated that it could not predict with certainty what might happen
but said that the respondent would likely argue that he had been prepared
before and that the petitioner ought not be able to bring the same claim
again. In light of our law regarding successive petitions, the court’s advice
was substantially accurate.
13
The petitioner does not argue that he should have been permitted to
withdraw his petition under General Statutes § 52-80 (‘‘The plaintiff may
withdraw any action . . . before the commencement of a hearing on the
merits thereof. After the commencement of a hearing on an issue of fact
in any such action, the plaintiff may withdraw such action . . . only by leave
of court for cause shown.’’). He was, nonetheless, permitted to withdraw his
petition and although § 52-80 does not say what happens when a withdrawal
is accomplished after commencement of trial, its implication is clear.