United States District Court, D. Vermont
OPINION AND ORDER ADOPTING IN PART MAGISTRATE
JUDGE'S REPORT AND RECOMMENDATION, GRANTING
RESPONDENT'S MOTION TO DISMISS, DISMISSING
PETITIONER'S PETITION FOR WRIT OF HABEAS CORPUS, AND
DENYING AS MOOT REMAINING PENDING MOTIONS (DOCS. 3, 5, 9, 11,
13, 15, 18, 19, & 22)
Christina Reiss, Chief Judge United States District Court
matter came before the court for a review of the Magistrate
Judge's February 16, 2017 Report and Recommendation
("R & R") (Doc. 15), in which the Magistrate
Judge recommended that the court grant Respondent Lisa
Menard's motion to dismiss (Doc. 9) the 28 U.S.C. §
2254 petition for a writ of habeas corpus filed by Petitioner
Allen Rheaume (Doc. 5). The Magistrate Judge further
recommended that the court deny as moot Petitioner's
motions to appoint counsel (Docs. 3 & 19),
Petitioner's motion for summary judgment (Doc. 11),
Respondent's motion for an extension of time to respond
to the motion for summary judgment (Doc. 13), and
Petitioner's motions for evidentiary hearings (Docs. 18
March 2, 2017 and March 9, 2017, Petitioner filed objections
to the R & R and contended that the Magistrate Judge
committed the following errors: (1) treating Petitioner's
January 9, 2017 opposition to Respondent's reply
memorandum as a sur-reply; (2) using the Vermont Supreme
Court's January 6, 2010 voluntary dismissal of
Petitioner's state court appeal as the date that
triggered the one-year statute of limitations; (3) using
Petitioner's January 30, 2008 revocation of probation as
an alternative date for computing the statute of limitations;
(4) concluding that Petitioner did not diligently pursue his
appellate rights after his January 30, 2008 violation of
probation; (5) determining that Petitioner had not alleged a
claim of actual innocence; and (6) recommending that the
court find that Petitioner failed to allege a federal
is self-represented. Respondent is represented by Assistant
Attorney General John R. Treadwell.
Factual and Procedural Background.
March 18, 2004, the State of Vermont ("the State")
charged Petitioner with two counts of lewd and lascivious
conduct in violation of 13 V.S.A. § 2601 and one count
of unlawful trespass in violation of 13 V.S.A. § 3705
based on allegations that Petitioner entered the home of a
minor without permission, attempted to touch her, and
masturbated in front of the minor and her friend while trying
to grab them. On June 14, 2004, Petitioner pled guilty to one
count of lewd and lascivious conduct and to being a habitual
offender pursuant to 13 V.S.A. § 11. He was sentenced to
fifty-five days to life imprisonment, with all suspended
except fifty-five days to five years.
30, 2004 and August 23, 2004, Petitioner filed separate
motions for sentence reconsideration. The second motion was
granted on September 28, 2004. Petitioner's sentence was
amended to fifty-five days to life, all suspended except
fifty-five days to twenty-four months, and he was placed on
probation based on credit for time served. On January 30,
2008, after several violations, the trial court revoked
Petitioner's probation and imposed the previously
suspended sentence of fifty-five days to life.
February 13, 2009, Petitioner's attorney filed a letter
at the Vermont Supreme Court advising that Petitioner's
case should have been docketed as an automatic appeal. Ten
days later, Petitioner notified the Vermont Supreme Court in
writing that his attorney requested the appeal without his
consent and stated that he wanted the appeal dismissed.
Petitioner subsequently filed motions referencing this same
request with the Vermont Supreme Court supported by an
affidavit in support of his right not to appeal. On September
8, 2009, the Vermont Supreme Court docketed an automatic
appeal from Petitioner's January 30, 2008 sentencing. On
December 22, 2009, Petitioner filed another motion for
voluntary dismissal of his appeal, which the Vermont Supreme
Court granted and which resulted in the appeal's
dismissal on January 6, 2010.
April of 2010, Petitioner filed a notice of appeal of his
probation revocation. On December 14, 2010, the Vermont
Supreme Court affirmed the revocation of probation and the
imposition of Petitioner's underlying sentence.
filed his first petition for post-conviction relief
("PCR") in August of 2011, and alleged that his
counsel provided ineffective assistance during the probation
revocation hearing. The trial court found that
Petitioner's counsel's performance was not deficient
and granted the State's motion for summary judgment. The
Vermont Supreme Court affirmed the trial court's
December of 2013, Petitioner filed a second PCR petition and
argued that his guilty plea colloquy was defective because he
never admitted the factual basis of the charge. The trial
court granted the State's motion for summary judgment,
and the Vermont Supreme Court affirmed.
February 7, 2015, Petitioner filed his third petition for PCR
and asserted that his conviction was flawed because 13 V.S A.
§ 2601 required the lewd act be "open, " but
the facts of his case established that the charged conduct
did not occur in a public place. Noting that it was unable to
"find any authority for the proposition that
'occurrence in a public place or in public view'
[was] an element of the offense" of lewd and lascivious
conduct, the trial court granted summary judgment in the
State's favor. (Doc. 8-1 at 4.) On November 4, 2016, the
Vermont Supreme Court affirmed the trial court's order.
November 7, 2016, Petitioner filed the pending 28 U.S.C.
§ 2254 motion wherein he collaterally challenges his
conviction and sentence. Petitioner reiterates his argument
that the court should vacate his conviction because the
underlying facts lack "the element of 'public'
in the charging [I]nformation(s)[.]" (Doc. 5 at 5.)
Conclusions of ...