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Fellows v. State

United States District Court, D. Vermont

March 2, 2018

Frank W. Fellows, Petitioner,
v.
State of Vermont, Respondent.

          REPORT AND RECOMMENDATION AND ORDER (DOCS. 3, 5, 7, 9, 14)

          JOHN M. CONROY UNITED STATES MAGISTRATE JUDGE.

         Frank Fellows, a Vermont inmate proceeding pro se, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 against Respondent the State of Vermont. (Doc. 3.) In 2010, Fellows was convicted in state court of sexual assault and lewd and lascivious conduct with a child after a jury trial. He is currently serving concurrent state sentences of five years to life, and five to fifteen years.

         Fellows's Petition and subsequent Amendments attack the proceedings both in his underlying criminal trial and in his postconviction relief (PCR) case. (See Docs. 3, 12, 13.) Reading Fellows's papers liberally, he appears to assert the following grounds for relief: (1) his Miranda rights were violated; (2) his right to a fair and speedy trial was violated; (3) his Fifth Amendment right to a fair and impartial trial was violated due to his decision not to attend parts of his trial, resulting in his inability to confront adverse witnesses; (4) his rights under the Vermont Public Defender Act (13 V.S.A. § 5231 et seq.) were violated; (5) his criminal trial counsel was ineffective and conspired against him with the prosecutor and jury; (6) the prosecutor at his criminal trial committed various acts of misconduct, including coercing witnesses, tainting the jury, and withholding evidence; (7) transcripts of the trial court sentencing hearing were tampered with and altered to make his sentence harsher; (8) judgment against him was rendered without notice to him or his appearance; and (9) his PCR attorney was ineffective, resulting in a delay in the proceedings such that state remedies are now futile. (Id.) Fellows claims that, “had it not been for the[se] constitutional and plain errors[, ] no reasonable factfinder would have found [him] guilty.” (Doc. 12 at 3.)

         In response to Fellows's Petition, Respondent has filed a Motion to Dismiss, seeking to dismiss without prejudice “various claims” contained in the Petition on several different grounds. (Doc. 5 at 1.) First, Respondent contends that the Petition should be dismissed because “there is an ongoing and active PCR case in the Vermont Superior Court.” (Id. at 4; see also Id. at 9.) Second, Respondent asserts that, although the Petition is difficult to understand, it appears to raise claims that are not cognizable in a petition arising under 28 U.S.C. § 2254, including claims that PCR counsel was ineffective. (Id. at 4-5, 9.) Third, Respondent argues that some of Fellows's claims are barred by procedural forfeiture because Fellows did not file his Petition within the applicable one-year statute of limitations found at 28 U.S.C. § 2244(d)(1). (Id. at 7, 11.) Fourth, Respondent contends that Fellows's claim of objectionable conduct by the prosecutor in his criminal trial is procedurally barred because Fellows failed to raise it in the trial court and on direct appeal to the Vermont Supreme Court. (Id. at 8.) Finally, Respondent urges that, if Fellows shows good cause to stay (rather than dismiss) his Petition, he must amend the Petition to replace the Vermont Commissioner of Corrections for the State of Vermont as Respondent. (See id.)

         Respondent has also filed a Motion for Extension of Time, seeking an extension of time to answer the Petition until thirty days after an amended petition has been filed. (Doc. 7 at 2.) In support, Respondent argues that the Petition does not comply with Rule 2(c) and (d) of the Rules Governing Section 2254 Cases, which state in relevant part that petitions filed under § 2254 must “state the facts supporting each ground” and must “substantially follow either the form appended to these rules or a form prescribed by a local district-court rule.Rules Governing Section 2254 Cases in the United States District Courts: 28 U.S.C.A. Foll. § 2254, Postconviction Remedies Appendix B, Rule 2(c)(2) and (d) (June 2017 update). Respondent also claims the Petition does not comply with Rules 10(b) and 12(e) of the Federal Rules of Civil Procedure. Rule 10(b) requires that a party must “state its claims or defenses in numbered paragraphs, each limited as far as practicable to a single set of circumstances.” Fed.R.Civ.P. 10(b). And Rule 12(e) allows a party to “move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response.” Fed.R.Civ.P. 12(e).

         Fellows has filed a Response to Respondent's Motion to Dismiss (Doc. 11); and has moved for the Court to “order the State Police Department of St. Johnsbury . . . to turn over [a copy of an April 2009 police recording involving a detective and Fellows], ” along with “proof of [a]uthentication, ” and to also turn over several transcripts from Fellows's PCR trial (Doc. 9). Fellows has also filed a letter asking the Court to hold a “status conference by phone” and to hear his pending Petition and Amendments in a “speedy” manner. (Doc. 14.) No. particular reason is stated in support of the requested status conference. (Id.)

         For the reasons explained below, I recommend that Respondent's Motion to Dismiss (Doc. 5) be GRANTED in part, as follows: Fellows's Petition (Doc. 3) should be DISMISSED without prejudice as unexhausted, except with respect to his PCR-related claims and his Vermont Public Defender Act claims, which should be DISMISSED with prejudice. Given these recommendations, I further recommend that Respondent's Motion to Dismiss (Doc. 5) be DENIED with respect to the claims regarding a stay and changing the name of the respondent on the Petition. Regarding the remaining motions, Respondent's motion seeking an extension of time to respond to the Petition (Doc. 7) is DENIED as moot; Fellows's motion seeking an order requiring the production of police recordings and trial transcripts (Doc. 9) is DENIED as moot; and Fellows's request for a status conference (Doc. 14) is DENIED as moot.

         Factual and Procedural Background[1]

         I. Criminal Trial and Conviction

         Following an investigation by the Department of Children and Families in April 2009, Fellows was charged in the Essex County Superior Court with sexual assault and lewd and lascivious conduct with a child, his 14-year-old daughter. Fellows denied the charges, and the case proceeded to a three-day jury trial beginning on September 21, 2010. (Doc. 5-2 at 3-4.) At the trial, the State called to the stand the victim (Fellows's daughter) and six other witnesses: a clinical psychologist who testified as an expert witness, the nurse practitioner who examined the victim after the incident, the victim's counselor, the victim's teacher, the victim's friend who helped the victim report the incident, and the police officer who conducted the initial interview of Fellows about the incident. Fellows, 2013 VT 45, ¶ 8. Fellows called his two sisters as witnesses. Id.

         Fellows was out on conditions of release pending trial. Without explanation, however, he did not attend the second and third days of trial, resulting in the issuance of a warrant for his arrest. (Doc. 5-2 at 4.) In October 2010, the jury convicted Fellows, and he was later sentenced to concurrent sentences of five years to life for the sexual assault conviction and five to fifteen years for the lewd and lascivious conduct conviction. (Id. at 4-5.) At his October 11, 2011 sentencing hearing, Fellows conceded that he had fled after the first day of trial, explaining that he was frustrated with his lawyer's representation of him and “decided [that his] own lawyer w[as not] even trying to fight [for him].” (Doc. 5-1 at 2.)

         Fellows appealed his conviction and sentence to the Vermont Supreme Court on two principal grounds: (1) “the trial court erred by allowing the State to question [Fellows's] sisters about [Fellows's] sexual relationship with [the victim's] mother when she was a minor and to use the evidence of that relationship in its closing argument to show that [Fellows] acted in conformity with that prior bad act, ” Fellows, 2013 VT 45, ¶ 10; and (2) “the trial court committed reversible error when it admitted testimony from [the victim's friend] relating the conversations that she had with [the victim] on the day after the incident, ” id. at ¶ 21. On June 28, 2013, the Vermont Supreme Court affirmed Fellows's conviction. Id. at ¶ 1.

         Fellows now appears to claim that he filed a motion asking the court to reconsider his sentence and that the court denied that motion in reliance on the prosecutor's false statement that it was untimely. (Doc. 3 at 2.) A review of the docket, however, shows that no such motion was filed. (See generally Docket, State v. Fellows, No. 54-4-09 Excr (Vt. 2013); see also Doc. 5-2.)

         II. PCR Petition

         On November 5, 2013, Fellows filed a PCR Petition in state court, arguing that he received ineffective assistance of counsel from his trial attorney. (Doc. 5-4 at 1.) In its entirety, the PCR Petition states as follows:

[My attorney] dozed off on more than one occasion[;] he was late on more than one occasion[;] he failed to investigate evidence or lack thereof[;] and he failed to counsel me or defend me in any way. He began my case in court by bringing prejudicial evidence against me about my past which allowed the State to use that against me throughout the trial and in its closing argument. He did not ensure witnesses were used in the proper order. He did not object when necessary during the cross-examination of my character witnesses. I believe that he convinced the prosecution to add the second charge of lewd and lascivious conduct. He failed to get a deposition from the victim at the beginning to use in cross-examination during the trial. He refused to use some of the character witnesses I thought were valuable to my case. He should have put in a request to post[]pone my trial until I was located instead of proceeding without me.

Fellows v. Vermont, No. 50-11-13 Excv (Vt. Super. Ct. filed Nov. 5, 2013). On December 10, 2013, Attorney Mark Furlan entered his appearance in the case as counsel for Fellows. (Doc. 5-4 at 2.)

         In June, July, and August 2017, the Essex Civil Division of the Vermont Superior Court held four days of hearings in connection with Fellows's PCR Petition. (Id. ...


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