Mozell v. Comm'r of Corr.

• Court: Connecticut Court of Appeals
• Writing for the Court: BEACH
• Citation: Mozell v. Comm'r of Corr., 147 Conn.App. 748, 83 A.3d 1174 (Conn. App. 2014)
• Decision Date: 28 January 2014
• Docket Number: No. 34568.,34568.
• Parties: Troy MOZELL v. COMMISSIONER OF CORRECTION.

147 Conn.App. 748

83 A.3d 1174

Troy MOZELL

v.COMMISSIONER OF CORRECTION.

No. 34568.

Appellate Court of Connecticut.

Argued Sept. 24, 2013.

Decided Jan. 28, 2014.

Cheryl A. Juniewic, assigned counsel, for the appellant (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).

BEACH, ALVORD and BEAR, Js.

BEACH, J.

The petitioner, Troy Mozell, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court dismissing 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 petitioner'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., at 672, 652 A.2d 1060. 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 Correction, 51 Conn.App. 818, 820, 725 A.2d 971 (1999). The habeas court's dismissal of his petition was upheld on appeal. Id., at 824, 725 A.2d 971. 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 counsel (count three), and second habeas counsel (count four). The respondent, the Commissioner of Correction, moved to dismiss counts one through three of the second 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 evidence 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 appealunless the petitioner establishes that the denial of certification 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 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]; 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 demonstrate 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 reasonably determined that the petitioner's appeal was frivolous.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Castonguay v. Commissioner 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 petition.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 amendments ... 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 discretion 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. Commissioner 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. at 674, 652 A.2d 1060. 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 reasonedthat, with reference 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. at 7, 916 A.2d 864 (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. at 677–78, 652 A.2d 1060, this court already had held that the trial court abused its discretion in admitting Lowery's...