CHAPTER 41

POSTCONVICTION REMEDIES IN SUPERIOR COURT

§ 41.01 Postconviction Relief Petitions

§ 41.02 - The "In Custody Under Sentence" Requirement

§ 41.03 - Scope of Review

§ 41.04 - Procedure

§ 41.05 Habeas Corpus - Availability

§ 41.06 - Procedure

§ 41.07 Petitions To Review Governmental Action

§ 41.08 Petitions for Extraordinary Relief

§ 41.01

Postconviction Relief Petitions

In addition to direct appeals, discussed in the previous chapter, which are always taken to the supreme court, the parties can seek review by separate "collateral" proceedings in the superior courts. Four such proceedings are available: (1) a petition for review, pursuant to 13 V.S.A. §§ 7131 et seq., commonly called a postconviction relief petition, or PCR for short; (2) a petition for a writ of habeas corpus, pursuant to 12 V.S.A. ch. 143; (3) a petition for extraordinary relief pursuant to V.R.A.P. 21; V.R.C.P. 81(b), and 4 V.S.A. §§ 2 and 113; and (4) a petition for review of governmental action pursuant to V.R.C.P. 75.

Collateral proceedings are not "substitutes" for an appeal, and an appeal, when available, may be the only remedy for certain claims. On the other hand, because appellate review is limited to the appellate record, claims that depend on facts outside the record must be brought collaterally. Collateral challenges are also appropriate for contesting prior convictions with which the prosecution wants to enhance sentence on current charges.

The PCR procedure, a statutory remedy "in the nature of" habeas corpus[,]"{1} is patterned after the federal postconviction relief statute{2} and is the preferred method for collaterally challenging convictions. It may be brought by "[a] prisoner who is in custody under sentence of a court" and allows review of a broad range of errors relating to the sentence and to the criminal proceedings which led up to it.{3} It may be filed "at any time" and the doctrine of laches does not apply;{4} the venue is the superior court for the county where the sentence was imposed, not the place of incarceration.{5}

§ 41.02

The "In Custody Under Sentence" Requirement

The limitation of PCR petitions to prisoners "in custody under sentence" rules out preconviction PCRs, as well as PCRs in noncriminal settings.

"In custody" does not require incarceration, however.{6} The Vermont Supreme Court in In re Stewart,{7} adopting liberal federal constructions of a similar "in custody" requirement, held that "a person is `in custody' if he suffers a significant restraint on personal liberty as a direct result of the challenged Vermont conviction."{8} A PCR petitioner whose current sentence is or may be based in part on a prior conviction is therefore "in custody" for purposes of the statute,{9} but it is the petitioner's burden to allege and prove the connection between the current sentence and the challenged conviction.{10} Restraints falling short of imprisonment, such as furloughs, parole, and probation, also qualify as custody under the statute.{11}

Not every restraint on liberty counts as "custody," however. A DUI defendant whose drivers license was suspended for an additional three years as a result of a previous DUI conviction was not "in custody" by virtue of the prior conviction, and he could not challenge it by a PCR.{12} Such challenges have to be brought by other means, such as a petition for extraordinary relief.

§ 41.03

- Scope of Review

Traditionally, habeas corpus was restricted to the narrow (and always ill-defined) class of "jurisdictional" defects.{13} The PCR statutes remove that limitation, permitting challenges "for a variety of errors that affect the validity of guilty verdicts[,]"{14} as well as convictions based on guilty pleas.{15} A PCR petition is also a proper vehicle for sentence computation claims,{16} and claims seeking remedies short of outright release.{17}

A petition for postconviction relief, however, is not a "substitute" for an appeal, and a PCR court can refuse to review claims that could have been raised on appeal (i.e., those that do not depend on facts outside the record) and that the petitioner has deliberately failed to raise.{18} Claims that were inadvertently not argued on appeal might not be barred by this rule.

§ 41.04

- Procedure

a. The Petition; Assignment of Counsel

The petition should be entitled "In re:" the petitioner's name, and carry a superior court caption. It "may be informal," but should at minimum "identify the offense, the date of sentencing, and the alleged violation or defect in the sentence."{19}

The specific permission of informality is based on the reality that PCR petitions are often drafted by pro se prisoners.{20} Such petitions must be liberally construed in the defendant's favor,{21} and the failure to make a specific allegation does not relieve the superior court of its duty to make findings on all material facts.{22}

The superior court can dismiss a legally insufficient petition without a hearing only if "the motion [i.e., the petition] and the files and records of the case conclusively show that the prisoner is entitled to no relief. . . ."{23}

This power to dismiss is curtailed by the requirement of liberal construction, and a pro se petition should not be dismissed on a questionable petition before counsel has been assigned and given a chance to file an amended pleading.{24}

b. The Hearing

PCR proceedings are generally governed by the rules of civil procedure, except that the civil discovery rules are available only by court order.{25}

The petitioner has the right to be present on request.{26}

The burden of proof is on the petitioner by a preponderance of the evidence.{27}

When the success of a particular claim depends on a showing of specific prejudice, the petitioner bears that burden as well, by the same standard.{28} It is important to note in this context that claims which do not require a showing of prejudice when raised on direct appeal may require such a showing when raised by PCR or other collateral petition. For example, defects in the information that are deemed "jurisdictional" error on direct appeal do not require reversal in a PCR proceeding absent a showing that the petitioner was misled.{29}

c. Findings

The statute specifically requires the court to "make findings of fact and conclusion of law with respect thereto."{30} The clause incorporates the findings requirements of the civil rules, V.R.C.P. 52, and requires findings on all material facts.{31}

Either side can appeal a final PCR order as of right.{32}

d. Settlements

Petitions for postconviction relief are sometimes settled by stipulation. The PCR court, unlike the supreme court on appeal, can and will grant a broad range of stipulated relief,{33} including changing the sentence.

§ 41.05

Habeas Corpus - Availability

The habeas statutes, which the PCR procedure partly replaced, are still on the books{34} and still available in situations where a PCR may not be, for example, to challenge deprivations of "good time" at a prison disciplinary proceeding;{35} to contest administrative proceedings which have put the prisoner in segregation;{36} and to challenge parole revocation proceedings.{37} It is also the appropriate vehicle for challenging interstate rendition proceedings, both before and after the issuance of a governor's warrant.{38}

The PCR procedure creates a "preferred" remedy which must be pursued when available, that is, when the defendant is challenging a criminal conviction or a sentence.{39} Habeas is also not a substitute for appeals{40} or other remedies: the Vermont Supreme Court has held that Title 12 habeas proceedings cannot be used to challenge pretrial detention when a bail appeal is available,{41} or to challenge restraints imposed in juvenile proceedings when relief is available in the family court through the Juvenile Procedures Act (unless the petitioner can claim "jurisdictional" error).{42}

§ 41.06

- Procedure

As in PCR proceedings, an indigent prisoner who brings a habeas petition is entitled to assignment of counsel.{43}

The petition must be sworn, either by the petitioner or by "some credible witness[,]"{44} and filed in the county of incarceration, not the county of conviction.{45} The superior court then issues a writ "[w]ithout delay" and "returnable forthwith,"{46} directing the respondent - the person whose custody the petitioner is challenging - to bring the petitioner to court and to file a "return," also sworn, showing "the cause for taking and detaining such prisoner."{47} The court must discharge the petitioner "[w]hen legal cause is not shown for the imprisonment or restraint. . . ."{48}

When the petitioner is challenging preconviction custody, the statutes provide for bail as of right "[w]hen the prisoner is detained for a bailable offense," and in the court's discretion for nonbailable offenses.{49}

§ 41.07

Petitions To Review Governmental Action

V.R.C.P. 75(a) provides for review in superior court of otherwise unappealable action or inaction "by an agency of the state or a political subdivision thereof, including any department, board, commission or officer. . . ." The rule provides a vehicle to challenge decisions of the department of corrections in prison and parole matters,{50} and license suspension actions by the department of motor vehicles in DUI and DLS cases.

§ 41.08

Petitions for Extraordinary Relief

Court decisions, however, do not constitute "agency" action, and Rule 75 cannot be used to challenge judicial action.{51} For those court decisions that are not directly appealable, the remedy is a petition for extraordinary relief pursuant to V.R.A.P. 21 and the courts' general authority to issue "all writs, processes and orders that may be necessary to the furtherance of justice. . . ."{52} Such petitions are "in the nature of" the common law prerogative writs of certiorari, mandamus, prohibition, and quo warranto, and superior courts have jurisdiction to grant the relief previously available by those proceedings.{53}

Petitions for extraordinary relief have been successfully used by criminal defendants and media intervenors to challenge closure and document-sealing orders.{54}

The state, in those situations where it has no statutory right to appeal, will often be allowed review by petition for extraordinary relief,{55} although the mere absence of an appellate remedy does not establish a right to review by this avenue, and the state will generally have to show either a plain error of law or a flagrant abuse of discretion.{56}

1. In re Stewart, 140 Vt. 351, 355 (1981); In re Clark, 127 Vt. 555, 557 (1969).

2. 28 U.S.C. § 2255. See In re Stewart, 140 Vt. 351, 355 (1981).

3. 13 V.S.A. § 7131.

4. In re Stewart, 140 Vt. 351, 360-61 (1981).

5. In re Stewart, 140 Vt. 351, 360-61 (1981). Incorrect venue does not affect the court's subject matter jurisdiction. In re Hanson, No. 91-066, slip op. 2-3 (Vt. Feb. 26, 1993).

6. In re Liberty, 154 Vt. 643 (1990); In re Mecier, 143 Vt. 23, 26 (1983).

7. 140 Vt. 351 (1981).

8. In re Stewart, 140 Vt. 351, 360 (1981).

9. This is so even if the defendant is currently incarcerated pursuant to an out-of-state sentence. In re Stewart, 140 Vt. 351 (1981).

10. In re Smith, 144 Vt. 494, 496 (1984).

11. In re Stewart, 140 Vt. 351, 357 (1981) (citing State v. McMann, 133 Vt. 288, 291-92 (1975) ("permanent furlough" to New Hampshire would qualify as custody)). That the defendant's conduct is subject to supervision, and that the defendant may be incarcerated without a formal trial, are two "useful indicia" of custody. In re Liberty, 154 Vt. 643, 644 (1990). The same is true for purposes of federal habeas corpus jurisdiction. See Justices of Boston Municipal Court v. Lydon, 466 U.S. 294, 300-01 (1984); Jones v. Cunningham, 371 U.S. 236, 243 (1963).

12. In re Liberty, 154 Vt. 643 (1990).

13. In re Stewart, 140 Vt. 351, 356 (1981).

14. In re Stewart, 140 Vt. 351, 356 (1981).

15. See, e.g., In re Kasper, 145 Vt. 117, 118-19 (1984); In re Bentley, 144 Vt. 404 (1984).

16. See, e.g., State v. Coe, 150 Vt. 448, 449 (1988); In re Zera, 137 Vt. 421 (1979); In re Lampman, 135 Vt. 226 (1977).

17. Sherwin v. Hogan, 136 Vt. 606, 608 (1979); In re Beshaw, 129 Vt. 393, 395 (1971) (challenge to concurrent sentence). For example, a PCR petition can seek reinstatement of an appeal when a notice of appeal was filed late because of trial counsel's ineffectiveness. In re Rebideau, 139 Vt. 530 (1981); In re Savo, 139 Vt. 527 (1981).

18. In re Nash, 146 Vt. 259, 261 (1985); In re Stewart, 140 Vt. 351, 361 (1981) ("absent exigent circumstances, a matter adversely decided on direct appeal cannot be relitigated, and collateral attack is barred if the movant deliberately bypassed the issue on appeal").

19. 13 V.S.A. § 7132.

20. In re Fuller, 135 Vt. 575, 579 (1977).

21. In re Morse, 138 Vt. 327, 329 (1980).

22. In re Fuller, 135 Vt. 575, 578-79 (1977).

23. 13 V.S.A. § 7133.

24. In re Morse, 138 Vt. 327 (1980). Cf. Fletcher v. Gorczyk, No. 92-367 (Vt. Dec. 3, 1992) (mem.) (habeas corpus petitioner entitled to assignment of counsel). An indigent petitioner has a right to assigned counsel under both the PCR statutes and the public defender statutes. See 13 V.S.A. §§ 5232(2), 7137; Fletcher v. Gorczyk, supra.

25. V.R.C.P. 81(a)(1). The civil rules do not alter "the practice proscribed by the statutes" but "[i]n respects not covered by statute," the rules govern.

26. 13 V.S.A. § 7133.

27. In re Stevens, 146 Vt. 6, 9 (1985); In re Fuller, 135 Vt. 575, 580 (1977).

28. In re Stevens, 146 Vt. 6, 9 (1985); In re Hall, 143 Vt. 590, 595 (1983).

29. Compare In re Stevens, 146 Vt. 6, 9 (1985) (PCR petitioner must show prejudice) with State v. Kreth, 150 Vt. 406, 408 (1988) (no showing of prejudice required on appeal).

30. 13 V.S.A. § 7133.

31. In re Fuller, 135 Vt. 575 (1977).

32. 13 V.S.A. § 7135.

33. Compare § 40.28 (appeals).

34. 12 V.S.A. §§ 3951-85.

35. State v. Savo, No. 85-143 (Vt. May 28, 1987) (mem.).

36. See, e.g., Fletcher v. Gorczyk, No. 92-367 (Vt. Dec. 3, 1992) (mem.).

37. Larose v. Superintendent, 146 Vt. 22 (1985). Review of parole board decisions is also available under V.R.C.P. 75 (review of governmental decisions). See § 41.07, infra; Watker v. Parole Board, 157 Vt. 72, 73-74 (1991).

38. See Lovejoy v. State, 148 Vt. 239, 242-43 (1987) (habeas may be used to challenge prewarrant detention); 13 V.S.A. § 4950 (right to habeas after issuance of warrant).

39. See 13 V.S.A. § 7136; Berard v. Moeykens, 132 Vt. 597, 598 (1974). The court will sometimes treat a habeas petition as a PCR. Sherwin v. Hogan, 136 Vt. 606, 607-08 (1979).

40. Larose v. Superintendent, 146 Vt. 22, 24 (1985); In re Mears, 124 Vt. 131, 142 (1964).

41. Unnamed Prisoners v. Maranville, 154 Vt. 279, 281-83 (1990).

42. In re A.S., 152 Vt. 487, 492 (1989).

43. 13 V.S.A. § 5232(2); Fletcher v. Gorczyk, No. 92-367 (Vt. Dec. 3, 1992) (mem.).

44. 12 V.S.A. § 3955.

45. 12 V.S.A. § 3953.

46. 12 V.S.A. § 3956. The main advantage of habeas over a PCR (other than the judge-shopping possibilities of a different venue) is speed. See In re Joyce, Nos. 87-206 and 87-207 (Vt. Aug. 5, 1987) (mem.) (habeas proceedings must be processed "expeditiously").

47. 12 V.S.A. §§ 3962-65. Where the respondent is not a public officer the writ is directed to a sheriff. Id. § 3962. Where the petitioner is a prisoner of the court, the state's attorney must be given notice. Id. §§ 3963, 3970.

48. 12 V.S.A. § 3972.

49. 12 V.S.A. §§ 3973-75; In re Dexter, 93 Vt. 304 (1919).

50. See, e.g., Watker v. Parole Board, 157 Vt. 72, 73-74 (1991).

51. Pfeil v. Rutland District Court, 147 Vt. 305, 308 (1986), overruling Miner v. District Court, 136 Vt. 426, 429 (1978).

52. 4 V.S.A. §§ 2(b), 113. Pfeil v. Rutland District Court, 147 Vt. 305, 308 (1986).

53. See generally State v. Forte, No. 91-061 (Vt. Feb. 1, 1993).

54. See Greenwood v. Wolchik, 149 Vt. 441 (1988).

55. See State v. Forte, 154 Vt. 46 (1990) (state challenge to order granting defendant's motion for new trial); State v. Saari, 152 Vt. 510, 513 (1989) (challenge to trial judge's order refusing to impose mandatory minimum sentence in misdemeanor case); State v. Springer, 139 Vt. 471, 473-74 (1981) (state's challenge to court ruling in inquest proceeding). See § 40.09, supra (appeals).

56. State v. Forte, No. 91-061 (Vt. Feb. 1, 1993) (petition for extraordinary relief challenging discretionary grant of motion for new trial may be within the scope of "liberalized mandamus").