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In re Towne

Supreme Court of Vermont

January 26, 2018

In re Edwin A. Towne, Jr.

         On Appeal from Superior Court, Chittenden Unit, Civil Division, Geoffrey W. Crawford, J. (2013-191), Helen M. Toor, J. (2015-382)

          Edwin A. Towne, Jr., Pro Se, Marion, Illinois, Petitioner-Appellant.

          Thomas J. Donovan, Jr., Attorney General, and John Treadwell and Eleanor L.P. Spottswood, Assistant Attorneys General, Montpelier, for Respondent-Appellee.

          PRESENT: Reiber, C.J., Skoglund, Robinson and Eaton, JJ., and Burgess, J. (Ret.), Specially Assigned

          ROBINSON, J.

         ¶ 1. Petitioner Edwin A. Towne, Jr. appeals in this consolidated case from the dismissal of two petitions for post-conviction relief (PCR), his tenth and eleventh such petitions. Because his various claims are either successive, an abuse of the writ, or outside the scope of the PCR statute, we affirm.

         ¶ 2. This somewhat complex appeal requires an understanding of petitioner's past history of PCR petitions; the two PCR petitions on appeal in this case; our law concerning successive petitions and abuse of the writ, respectively; the potential implications of the U.S. Supreme Court's 2012 decision in Martinez v. Ryan, 556 U.S. 1 (2012); and the effect of these considerations on petitioner's main contentions on appeal. I. Prior PCR Petitions

         ¶ 3. The relevant history is as follows. In 1989, petitioner was convicted of first-degree murder. This Court's decision on petitioner's direct appeal of his conviction describes the circumstances of the underlying crime. State v. Towne, 158 Vt. 607, 615 A.2d 484 (1992).

         ¶ 4. While his direct appeal was pending, petitioner filed a petition for post-conviction relief (PCR) in the superior court alleging that he had been denied a speedy trial and that his trial counsel was ineffective in failing to pursue alibi witnesses, raise an insanity defense, or adequately impeach State's witnesses. The court held a series of hearings at which petitioner was represented by counsel. In an entry order dated August 1992, the court dismissed the petition, stating that "[p]etitioner has failed to frame the issue in such a way that any likelihood of a different outcome would have been possible." Petitioner did not appeal.

         ¶ 5. In September 1992, petitioner filed his second PCR petition alleging a speedy trial violation and arguing that his "trial on information" rather than grand jury indictment violated his rights. The court dismissed this petition on the merits, and petitioner did not appeal.

         ¶ 6. Seven months later, petitioner filed his third PCR petition, once again alleging that his trial counsel had been ineffective in failing to pursue potential alibi witnesses. The court dismissed the petition, noting that the same claim had already been addressed on the merits in the first PCR petition. Petitioner appealed to this Court, arguing that the dismissal of his first PCR petition had not been on the merits because there was no evidentiary hearing held on the record, and thus the original PCR court could not have determined whether his claim had merit. In re Towne, No. 1994-105 (Vt. April 25, 1995) (unpub. mem.). In April 1995, this Court affirmed the dismissal on the ground that petitioner's claim was successive because the original PCR court dismissed the petition on the merits after considering the trial record and the underlying facts concerning the alleged deficiencies by trial counsel. Id., slip op. at 2. In addition, this Court concluded that the third petition suffered the same flaw as petitioner's first: petitioner did not establish that the alibi witnesses would have confirmed his story and changed the outcome of the trial. Id.

         ¶ 7. In September 1995, petitioner filed his fourth PCR petition. He alleged, among other things, that his appointed counsel during his first PCR petition was ineffective for failing to appeal its dismissal or to notify him of the dismissal so that he could appeal pro se. That PCR court granted the State summary judgment, ruling in relevant part that his original PCR counsel's failure to appeal could have been raised in prior petitions and were thus successive. On appeal to this Court, petitioner argued that his claim was not successive because a PCR claim is only successive if it renews issues that were determined on the merits in an earlier decision and the ends of justice would not be served by reaching the merits on a later petition. The Court disagreed with petitioner and held that the PCR court had the discretion to dismiss new claims that could have been raised in an earlier petition, absent petitioner demonstrating cause as to why he had not raised them previously. In re Towne, No. 1997-483, slip op. at 2 (Vt. Sept. 30, 1998) (unpub. mem.).

         ¶ 8. In a fifth PCR petition petitioner argued that he was denied effective assistance of PCR counsel in his first PCR proceeding because his counsel failed to present alibi witnesses, appeal the petition dismissal, or notify petitioner of the dismissal. This court affirmed that PCR court's dismissal on the basis that all of these claims were raised in previous PCR petitions and were thus successive. In re Towne, No. 1999-216, slip op. at 1 (Vt. Jan. 6, 2000) (unpub. mem.).

         ¶ 9. While his fifth PCR petition was pending, petitioner filed a sixth, raising claims not relevant to this appeal. This Court affirmed that PCR court's dismissal. In re Towne, No. 2000-71, slip op. at 2 (Vt. Aug. 3, 2000) (unpub. mem.).

         ¶ 10. In October 2001, petitioner filed his seventh PCR petition arguing that the judge who presided over his first PCR petition had also participated in his underlying criminal proceeding, which violated 13 V.S.A. § 7131. This Court expressed doubts about petitioner's argument on the merits but noted that, even assuming § 7131 could be extended to disqualify a PCR judge who only heard pretrial motions in the underlying case, petitioner's claim exceeded the scope of the PCR statute because it would not invalidate the conviction or sentence or otherwise make his criminal judgment vulnerable to collateral attack. Towne v. State, No. 2004-390, 2005 WL 6151843, at *1-2 (Vt. Oct. 28, 2005) (unpub. mem.), https://www.vermontjudiciary.org/sites/default/files/documents/eo04-390.S.pdf. [1] The Court further explained that, even if petitioner had a viable claim within the statute, the claim was precluded because he had not shown cause for failing to raise it in an earlier PCR petition. Id.

         ¶ 11. In October 2003, petitioner filed his eighth PCR petition alleging grounds not relevant to this appeal. This Court affirmed the dismissal and explained that the petition was successive because essentially this same claim had already been addressed and decided on the merits in a prior PCR proceeding, and "the ends of justice would [not] be served in reaching the merits" of this petition. Towne v. State, No. 2004-521, 2005 WL 6151845, at *2 (Vt. Oct. 28, 2005) (unpub. mem.), https://www.vermontjudiciary.org/sites/default/files/documents/eo04-521.S.pdf.

         ¶ 12. In October 2005, petitioner filed a petition that the PCR court construed as his ninth PCR, [2] challenging the 1986 traffic stop that precipitated his arrest for murder and arguing that he had ineffective assistance of counsel during both his trial and direct appeal. That PCR court dismissed the motion as successive, and this Court affirmed, explaining that petitioner's claims "[did] not clearly differ in substance from those already raised and ruled upon in petitioner's many prior petitions." In re Towne, 2007 VT 80, ¶ 6, 182 Vt. 614, 938 A.2d 1205 (mem.).

         II. PCR Petitions on Appeal

         ¶ 13. This consolidated opinion addresses petitioner's tenth and eleventh PCR petitions. In April 2012, petitioner, pro se, filed a "Petition for Appointment of Competent, Conflict-Free Counsel to File a 13 V.S.A. 7131 Petition for Ineffective Assistance of Court Appointed Trial, Appellate, and Post-Conviction Counsel in Light of the Recent U.S. Supreme Court Rulings in Martinez v. Ryan, 132 S.Ct. 1309 (2012) and Maples v. Thomas, 132 S.Ct. 912 (2012)." (PCR 2013-191). Petitioner argued that: (1) his trial counsel was ineffective in failing to pursue alibi witnesses and for failing to disqualify himself due to a conflict of interest that arose from counsel's prior representation of a State's witness; (2) one of his lawyers on direct appeal, who had represented petitioner at trial, had a conflict of interest on appeal after petitioner filed his first PCR petition alleging ineffective assistance of trial counsel; (3) Chief Justice Jeffery Amestoy was conflicted from sitting on his direct appeal because Chief Justice Amestoy had been Vermont's Attorney General during petitioner's trial; and (4) petitioner's original PCR counsel had been ineffective in arguing his case, failing to appeal, and failing to notify petitioner that his petition had been dismissed so petitioner could appeal himself. Petitioner cited Martinez v. Ryan, 556 U.S. 1 (2012), to argue that ineffective assistance of counsel at his original PCR proceeding created cause to bypass the procedural hurdles of successiveness and abuse of the writ. The State filed a motion to dismiss the petition as successive, an abuse of the writ, and "for failure to state claims cognizable in a PCR petition." Petitioner's court-appointed counsel did not respond to the State's motion.

         ¶ 14. In March 2013, the PCR court granted the State's motion to dismiss. With respect to petitioner's claims of ineffective assistance of trial counsel, the court concluded on the basis of the reasoning in Martinez and Maples v. Thomas, 565 U.S. 266 (2012), that ineffectiveness of petitioner's lawyer in his first PCR proceeding could overcome the procedural bars of successiveness and abuse of the writ to enable the court to consider the merits of petitioner's PCR claims on the basis of ineffective assistance of trial counsel. However, the court concluded that petitioner had failed to establish that the first PCR court had erred in determining that his ineffective-assistance-of-trial-counsel claim was without merit. In particular, petitioner did not demonstrate that the errors of counsel during his underlying trial actually and substantially prejudiced him because he did not show that the alibi witnesses he contended trial counsel should have contacted would have provided exculpatory testimony. Because petitioner did not demonstrate prejudice from his initial PCR counsel's alleged ineffectiveness with respect to this claim, his claim was "barred as successive and an abuse of the writ."

         ¶ 15. The court noted that petitioner's claim that he had ineffective assistance on direct appeal of his underlying conviction because one of his lawyers on direct appeal had a conflict was likewise successive. The court further explained that even if petitioner could link his failure to raise this claim in his original PCR petition to ineffective assistance of PCR counsel, his claim failed on the merits. The lawyer alleged by petitioner to be ineffective at trial did not represent him on appeal, and petitioner failed to show how the only lawyer who represented him both at trial and on appeal was incompetent in his appellate representation. Because the claim failed on the merits, the alleged ineffectiveness of petitioner's lawyer in his first PCR case in failing to raise the issue caused no prejudice, and the PCR court dismissed this claim as an abuse of the writ.

         ¶ 16. Finally, the court concluded that petitioner's stand-alone claim of ineffective assistance of prior PCR counsel was beyond the scope of the PCR statute-which "is limited to correcting a defective conviction or sentence resulting from a violation of the law." 13 V.S.A. § 7131; id. § 7133.[3]

         ¶ 17. In December 2014, petitioner, pro se, filed his eleventh PCR petition (PCR 2015-382).[4] Petitioner elaborated on the circumstances surrounding the in-court disclosure that his trial counsel had previously represented a witness in the case, and explained that he had told his lawyer that he believed this witness had committed the murder. Petitioner argued that the trial court should have advised him of his right to conflict-free representation and the dangers of this particular conflict, giving him the opportunity to decide whether to accept the risks and dangers of the conflict after consultation with independent counsel. He identified examples of failures by his trial counsel that he attributed to the conflict. Petitioner's appointed counsel filed no response to the State's motion to dismiss the petition as successive and an abuse of the writ.

         ¶ 18. In September 2015, the court dismissed the petition on the basis that his claims had either already been raised and addressed on the merits in previous petitions or they could have been raised in previous petitions. Furthermore, the court noted that "there is nothing to suggest that if trial counsel had done what [petitioner] now thinks ...


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