United States District Court, D. Vermont
FRANK W. FELLOWS, Petitioner,
VERMONT COMMISSIONER OF CORRECTIONS,  Respondent.
OPINION AND ORDER (DOCS. 3, 5, 15)
Geoffrey W. Crawford, Chief Judge
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.) 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.
I. Standard Governing Review of the R&R
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).
Factual and Procedural Background
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
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,  nor are they relevant to any
issue in Petitioner's objection to the R&R.
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's Legal Conclusions
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
(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.)
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.)
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 ...