Fellows v. Vermont Commissioner of Corrections

          OPINION AND ORDER (DOCS. 3, 5, 15)

          Geoffrey W. Crawford, Chief Judge

         Pro se Plaintiff Frank Fellows, an inmate in the custody of the Vermont Department of Corrections (DOC), has filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254. (Doc. 3.) He asserts errors in his underlying criminal trial and in his post-conviction relief (PCR) case in Vermont state court. (See Docs. 3, 12, 13.)^[2] Currently pending in this court is the Respondent's Motion to Dismiss. (Doc. 5.) The United States Magistrate Judge issued a Report and Recommendation (R&R) regarding the Motion to Dismiss on March 2, 2018. (Doc. 15.) Plaintiff filed an objection on March 15, 2018. (Doc. 16.) After careful review of the record, the Magistrate Judge's R&R, and the objection, the court AFFIRMS, APPROVES, and ADOPTS the R&R, but narrows the rationale for dismissal of certain claims as described below.

         Analysis I. Standard Governing Review of the R&R

         A district judge must make a de novo determination of those portions of a magistrate judge's report and recommendation to which an objection is made. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Cullen v. United States, 194 F.3d 401, 405 (2d Cir. 1999). The district judge may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1); accord Cullen, 194 F.3d at 405. The district judge is not required to review the factual or legal conclusions of the magistrate judge as to those portions of a report and recommendation to which no objections are addressed. Thomas v. Arn, 471 U.S. 140, 150 (1985). The court applies a "clear error" standard to any unobjected-to determination in the R&R that the court elects to review. See Fed. R. Civ. P. 72(b), advisory committee's note; Moss v. Colvin, 845 F.3d 516, 519 n.2 (2d Cir. 2017) (per curiam) (absent objection to a determination in an R&R, district court has discretion to evaluate the determination for clear error); Beauregard v. Comm V of Soc. Sec, No. 5:13-cv-206, 2014 WL 3747050, at *1 (D. Vt. July 30, 2014); DiPilato v. 7-Eleven, Inc., 662 F.Supp.2d 333, 339 (S.D.N.Y. 2009).

         II. Factual and Procedural Background

         The R&R includes a recitation of factual and procedural history, with the factual summary drawn largely from the Vermont Supreme Court's decision affirming Mr. Fellows's conviction on direct appeal in State v. Fellows, 2013 VT 45, 194 Vt. 77, 76 A.3d 608. (Doc. 15 at 5-8.) For the reasons below, the court finds no basis to disturb the recitations of factual and procedural background in the R&R. Familiarity with that recapitulation is presumed.

         Referring to what appears to be a copy of portions of the docket sheet from the criminal trial (Doc. 16-2), Petitioner says that he disputes the dates of certain events in the trial court proceedings and the R&R's "accounts" of those events. (Doc. 16 at 9.) The court has reviewed each of the issues that Petitioner has raised. He suggests some additional details regarding the events in criminal trial proceedings, but none of those details contradict the background set forth in the R&R, ^[3] nor are they relevant to any issue in Petitioner's objection to the R&R.

         Petitioner also suggests that there are additional facts and evidence relevant to this case, but that he cannot afford to get supporting documents. (See Doc. 16 at 1, 9.) He further contends that the court should not have denied his November 1, 2017 motion (Doc. 9) for an order requiring the production of police recordings and transcripts from the PCR proceedings. (See Doc. 16 at 1, 8-9.) The court's denial of his November 1, 2017 motion was a court order, not a recommendation to the undersigned. (See Doc. 15 at 22.) In any case, denial for mootness was proper because-as discussed below-all of Petitioner's claims are subject to dismissal on grounds unrelated to the content of the police recordings or the transcripts from the PCR case. For similar reasons, Petitioner's claim that he is unable to obtain documents does not warrant rejection or modification of the factual recitation in the R&R. He does not articulate what those unspecified documents might say or how they might be material to the legal analysis in the R&R.

         III. The R&R's Legal Conclusions

         The R&R considers the original § 2254 petition (Doc. 3) together with two "amendments" (Docs. 12, 13), identifying the following nine 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 [Sten Lium] was ineffective and conspired against him with the prosecutor [Vince Illuzzi] 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 [Mark Furlan] was ineffective, resulting in a delay in the proceedings such that state remedies are now futile.

(Doc. 15 at 1-2, 7.) The R&R concludes that all of these claims are unexhausted, with no basis to deem them exhausted, no showing of cause or prejudice for the procedural bar, and no basis to apply the exception for alleged "inordinate delay" in the PCR case. (See Doc. 15 at 10-16.) The R&R recommends dismissal of all claims without prejudice, with the exception of claims (4) and (9), which the R&R recommends dismissing with prejudice. (Id. at 16-18.) The R&R also recommends against granting Respondent's request for a stay to allow Petitioner to exhaust his claims in state court. (Id. at 18-21.)

         Petitioner's objection to the R&R consists largely of assertions that his claims are substantively meritorious. (See Doc. 16 passim.) Petitioner addresses the exhaustion issue by reiterating his position that the PCR case has been unreasonably delayed. (Id. at 4.) He maintains that he is unable to exhaust his state remedies because "the P.C.R. trial ended Aug. 15, 2017 and the court has yet to make a decision." (Id.)

         A. Exhaustion-Ineffective-Assistance-of-Trial-Counsel Claim

         The only portion of the R&R's exhaustion analysis that Petitioner challenges is the rejection of his argument based on delay in the PCR proceedings. In his pending PCR petition Mr. Fellows asserts an ineffective-assistance-of-counsel claim directed at trial counsel Sten Lium. (See Doc. 15 at 6-7 (reciting allegations in PCR petition).) That claim is identified as number (5) in this § 2254 case. Because that claim remains pending in the Vermont Superior Court, it is unexhausted. See Lawrence v. Florida, 549 U.S. 327, 333 (2007) ("State remedies are exhausted at the end of state-court review." (emphasis added)); Hall v. Sorrell, No. 1:09-CV-291, 2010 WL 1740816, at *l-2 (D. Vt. Apr. 7, 2010) (ineffective-assistance ...