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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.) CherylA. 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).Opinion BEACH, J. The petitioner, Troy Mozell, appeals following the denial of his petition for certification to appeal from thejudgment ofthe habeas court dismissing the fourth count ofhis petition for a writ ofhabeas 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 ofcount 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 courthaspreviouslysetforththe followingfacts 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 NewHavenpolice as suspectedmembers ofadrugring. 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 convictionwasupheldonappeal. Id., 672. Inhisfirst habeaspetition, the petitionerallegedthathis appellate counselwasineffectiveforfailingtoraisevariousissues
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., 824. The petitioner filed a second habeas petition, which the habeas court denied. The denial of hispetitionbythe habeas courtwas affirmed onappeal. See Mozell v. Commissioner ofCorrection, 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 (counttwo), first habeas counsel (count three), and second habeas counsel (count four). Therespondent, the CommissionerofCorrection, moved to dismiss counts one through three ofthe second amended petition on the ground that those counts ‘‘presentthe samegrounds asapriorpetitionpreviously denied and [fail] to state new facts or proffer new evidence not reasonably available at the time of theprior 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 [ofthesecondamendedpetition] involvethe same or substantially the same grounds that have or could have beenraisedinpriorpetitions, seekthe same relief, and fail to allege any facts that were not reasonably availableto thepetitioneratthetimethe otherpetitions
were pursued.’’ The court noted that ‘‘[t]hat leaves us withcountfour, whichis anineffective assistance claim against prior habeas counsel

. . . .’’ When the court inquired as to whether the petitioner’s counsel was readytoproceed on countfour, thepetitioner’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 deniedthis 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 matterwith counsel, askedthe 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 thatthe denial ofcertificationconstitutedanabuseofdiscretionbythehabeas court. In Simms v. Warden, 230 Conn. 608, 615–16, 646 A.2d 126 (1994), we incorporated the factors adopted bythe United States Supreme CourtinLozadav.Deeds, 498 U.S. 430, 431–32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991), as the appropriate standard for determining whetherthe 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 encouragementtoproceedfurther.

. . . Apetitionerwho establishes an abuse ofdiscretion through one ofthe 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 ofthe 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 ofpermission 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 ourcourtshave beenliberalinpermitting amendments

. . . this liberality has limitations. Amendments should be made seasonably. Factors to be considered inpassing on amotionto amend are the length ofdelay, fairness to the opposing parties and the negligence, if any, of the party offering the amendment.

. . . The motionto amendis addressedto the trial court’s discretionwhichmaybe exercisedto restrainthe amendment ofpleadingssofarasnecessarytopreventunreasonable delayofthetrial.’’ (Citationsomitted; emphasisomitted; 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. 674. On February 22, 2012, at the habeas trial at issue, thepetitionerhimselfaddressedthe courtfollowingthe court’s granting ofthe respondent’s motion to dismiss. Heaskedthatthecourtpermithimtoamendhispetition to include a claim that the trial court violated his right to dueprocessby (1) permittinginto evidence Lowery’s gunand (2)bypermittingtheintroductioninto evidence of‘‘gangevidence’’ athiscriminaltrial. Thecourtdeniedthe petitioner’s request and reasoned that, 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 ofCorrection, 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
reasonanddoesnotdeserve encouragementtoproceed 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 withdrawal with prejudice was not necessarily binding on anysubsequenthabeas courtandthatanyallegedprejudice ismerelyspeculative untilafuture attemptto refile the petition is frustrated. We disagree. ‘‘Ripeness is a justiciability doctrine, which implicates the court’s subject matterjurisdiction.’’ Bloom v. Miklovich, 111 Conn. App. 323, 336, 958 A.2d 1283 (2008). Anissue regardingjusticiabilitypresents aquestion oflaw, 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 requirement 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 forreview. Althoughthepetitionermaychoose notto 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 prejudice’’ does not constitute a hypothetical injury4 contingent 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);5Feinsodv. 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 ourjurisprudence. He reasons that the voluntariness ofawithdrawal is nullified when
a court accepts awithdrawal withprejudice. 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 withinConnecticutjurisprudence. SeeFinev. Commissioner ofCorrection, 147 Conn. App. 136, A.3d (2013) (discussingcanvassrequirementsforwithdrawal 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,thedispositionofwithdrawalwithprejudice is a logically compelling disposition in some circumstances. Aplaintiffis generally empowered, though not without limitation, to withdraw a complaint before commencement ofahearing onthe 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 converting motion for voluntary dismissal without prejudice into dismissal with prejudice, under Federal Rules of Civil Procedure, court must [1] give notice of intention 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 withlitigation).11Afterthepetitioneraskedto withdraw the fourth count, the court informed him that the withdrawal would be ‘‘with prejudice.’’ The court explained to the petitionerthe ‘‘potential ramifications’’ ofawithdrawal 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. Whetheranotherjudge 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 connection 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 respondent’s counsel]—thatis whyI am addingthe withprejudice 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 respondent’s counsel, in that some exhibits had already been admitted in full;13 this was the petitioner’s third habeas action; andthat‘‘[t]hisisnotexactlyanewthingfor [the petitioner] to getto trial andbe unhappy and attemptto 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 conductinrelationtothe matterathandmaydisentitle 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 prevail on the merits ofthis claim because the court acted within its discretion in accepting the withdrawal ofthe 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 courtviolated his rightto 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 Preciselylike ‘‘withdrawalwithprejudice,’’ a‘‘voluntarydismissal’’pursuant 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 aplaintiff to request dismissal of an action by court order, on terms that the court considers proper.

. . . The rule

. . . provides that such a dismissal is without prejudice, [u]nless the [court’s] order states otherwise.

. . . Accordingly, dismissal withoutprejudice is the norm, unless the courtfinds thatthe defendant will suffer legal prejudice.’’ [Citations omitted; internal quotation marks omitted.]).

6 Thepetitionerhasnotindicatedwhyanevidentiaryhearingwasrequired to resolve the issues presented in this appeal. He cites Mercer v. Commissioner 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: ‘‘Thejudicial authority may, at any time, upon its own motion orupon motion ofthe respondent, dismissthe 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 failsto state newfacts orto proffernew evidence notreasonably available at the time of the prior petition; ‘‘(4) the claims asserted in the petition are moot or premature; ‘‘(5) anyotherlegallysufficientgroundfordismissalofthepetitionexists.’’

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 ofthe 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.
10Fine 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 awithdrawal with prejudice and a dismissal end a case with finalityand are functionally one inthe same. Acourt ispermitted 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 additionof‘‘withprejudice,’’butonlysolongasthe constitutionalsafeguards addressed in Fine are followed.

11 Byanalogyto the Federal Rules ofCivil Procedure, apetitioner’srequest 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 plaintiffmay withdraw such action

. . . onlyby leave ofcourt for cause shown.’’). He was, nonetheless, permittedto withdraw his petition and although § 52-80 does not saywhat happens when awithdrawal is accomplished after commencement of trial, its implication is clear.