Rheaume v. Menard

Filing 26

OPINION AND ORDER Adopting In Part Magistrate Judge's 15 Report and Recommendation, Granting Respondent's 9 Motion to Dismiss, Dismissing Petitioner's 5 Motion for Writ of Habeas Corpus, and Denying as Moot 3 , 11 , 13 , 18 , 19 , 22 Remaining Pending Motions. Pursuant to Fed. R. App. P. 22(b)(l) and 28 U.S.C. § 2253(c)(2), the court DENIES Petitioner a certificate of appealability in this matter because Petitioner has failed to make a substantial showing of the denial of a constitutional right. Signed by Chief Judge Christina Reiss on 7/18/2017. (pac)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
ALLEN RHEAUME,
Petitioner,
v.
LISA MENARD,
Respondent.

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Case No. 2:16-cv-303

OPINION AND ORDER ADOPTING IN PART
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION,
GRANTING RESPONDENT'S MOTION TO DISMISS,
DISMISSING PETITIONER'S PETITION FOR WRIT OF HABEAS CORPUS,
AND DENYING AS MOOT REMAINING PENDING MOTIONS
(Docs. 3, 5, 9, 11, 13, 15, 18, 19, & 22)
This matter came before the court for a review of the Magistrate Judge's February
16, 2017 Report and Recommendation ("R & R") (Doc. 15), in which the Magistrate
Judge recommended that the court grant Respondent Lisa Menard's motion to dismiss
(Doc. 9) the 28 U.S.C. § 2254 petition for a writ of habeas corpus filed by Petitioner
Allen Rheaume (Doc. 5). The Magistrate Judge further recommended that the court deny
as moot Petitioner's motions to appoint counsel (Docs. 3 & 19), Petitioner's motion for
summary judgment (Doc. 11), Respondent's motion for an extension oftime to respond
to the motion for summary judgment (Doc. 13), and Petitioner's motions for evidentiary
hearings (Docs. 18 & 22).
On March 2, 2017 and March 9, 2017, Petitioner filed objections to the R & Rand
contended that the Magistrate Judge committed the following errors: (1) treating
Petitioner's January 9, 2017 opposition to Respondent's reply memorandum as a surreply; (2) using the Vermont Supreme Court's January 6, 2010 voluntary dismissal of
Petitioner's state court appeal as the date that triggered the one-year statute of limitations;
(3) using Petitioner's January 30, 2008 revocation of probation as an alternative date for

computing the statute of limitations; (4) concluding that Petitioner did not diligently
pursue his appellate rights after his January 30, 2008 violation of probation;
(5) determining that Petitioner had not alleged a claim of actual innocence; and
(6) recommending that the court find that Petitioner failed to allege a federal
constitutional violation.
Petitioner is self-represented. Respondent is represented by Assistant Attorney
General John R. Treadwell.

I.

Factual and Procedural Background.
On March 18, 2004, the State of Vermont ("the State") charged Petitioner with

two counts of lewd and lascivious conduct in violation of 13 V.S.A. § 2601 and one
count of unlawful trespass in violation of 13 V.S.A. § 3705 based on allegations that
Petitioner entered the home of a minor without permission, attempted to touch her, and
masturbated in front of the minor and her friend while trying to grab them. On June 14,
2004, Petitioner pled guilty to one count of lewd and lascivious conduct and to being a
habitual offender pursuant to 13 V.S.A. § 11. He was sentenced to fifty-five days to life
imprisonment, with all suspended except fifty-five days to five years.
On July 30, 2004 and August 23, 2004, Petitioner filed separate motions for
sentence reconsideration. The second motion was granted on September 28, 2004.
Petitioner's sentence was amended to fifty-five days to life, all suspended except fiftyfive days to twenty-four months, and he was placed on probation based on credit for time
served. On January 30, 2008, after several violations, the trial court revoked Petitioner's
probation and imposed the previously suspended sentence of fifty-five days to life.
On February 13, 2009, Petitioner's attorney filed a letter at the Vermont Supreme
Court advising that Petitioner's case should have been docketed as an automatic appeal.
Ten days later, Petitioner notified the Vermont Supreme Court in writing that his attorney
requested the appeal without his consent and stated that he wanted the appeal dismissed.
Petitioner subsequently filed motions referencing this same request with the Vermont
Supreme Court supported by an affidavit in support of his right not to appeal. On
September 8, 2009, the Vermont Supreme Court docketed an automatic appeal from
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Petitioner's January 30, 2008 sentencing. On December 22, 2009, Petitioner filed
another motion for voluntary dismissal of his appeal, which the Vermont Supreme Court
granted and which resulted in the appeal's dismissal on January 6, 2010.
In April of2010, Petitioner filed a notice of appeal of his probation revocation.
On December 14, 2010, the Vermont Supreme Court affirmed the revocation of probation
and the imposition ofPetitioner's underlying sentence.
Petitioner filed his first petition for post-conviction relief ("PCR") in August of
2011, and alleged that his counsel provided ineffective assistance during the probation
revocation hearing. The trial court found that Petitioner's counsel's performance was not
deficient and granted the State's motion for summary judgment. The Vermont Supreme
Court affirmed the trial court's decision.
In December of 2013, Petitioner filed a second PCR petition and argued that his
guilty plea colloquy was defective because he never admitted the factual basis of the
charge. The trial court granted the State's motion for summary judgment, and the
Vermont Supreme Court affirmed.
On February 7, 2015, Petitioner filed his third petition for PCR and asserted that
his conviction was flawed because 13 V.S.A. § 2601 required the lewd act be "open," but
the facts of his case established that the charged conduct did not occur in a public place.
Noting that it was unable to "find any authority for the proposition that 'occurrence in a
public place or in public view' [was] an element of the offense" of lewd and lascivious
conduct, the trial court granted summary judgment in the State's favor. (Doc. 8-1 at 4.)
On November 4, 2016, the Vermont Supreme Court affirmed the trial court's order.
On November 7, 2016, Petitioner filed the pending 28 U.S.C. § 2254 motion
wherein he collaterally challenges his conviction and sentence. Petitioner reiterates his
argument that the court should vacate his conviction because the underlying facts lack
"the element of 'public' in the charging [I]nformation(s)[.]" (Doc. 5 at 5.)

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II.

Conclusions of Law and Analysis.
A.

Standard of Review.

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. Fed. R.
Civ. P. 72(b); 28 U.S.C. § 636(b)(l); 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. A district judge, however, is not required to review the factual
or legal conclusions of the magistrate judge as to those portions of a reports and
recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140,
150 (1985).

B.

Whether Petitioner's January 9, 2017 Opposition to Respondent's
Reply Constitutes a Sur-reply.

Petitioner contends that his January 9, 2017 filing was not a sur-reply. Even if it
was error for the Magistrate Judge to refer to Petitioner's filing as a sur-reply, Petitioner
suffered no prejudice because the Magistrate Judge properly exercised his discretion and
considered Petitioner's arguments in that filing. See Newton v. City of New York, 738 F.
Supp. 2d 397, 417 n.l1 (S.D.N.Y. 2010) ("courts have broad discretion to consider
arguments in a sur-reply"). This alleged error thus provides no grounds for relief.

C.

Whether Petitioner Alleges a Federal Constitutional Violation.

"It is well established that a federal habeas court does not sit to correct a

misapplication of state law, unless such misapplication violates the Constitution, laws, or
treaties ofthe United States." Ponnapula v. Spitzer, 297 F.3d 172, 182 (2d Cir. 2002);

see 28 U.S.C. § 2254(a) (permitting habeas relief"only on the ground that [the petitioner]
is in custody in violation of the Constitution or laws or treaties of the United States");

Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("it is not the province of a federal habeas
court to reexamine state-court determinations on state-law questions."). While Petitioner
lists a number of federal constitutional violations, including a Sixth Amendment violation
for failure to inform him of the nature of the accusation against him, his habeas petition is
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grounded in a question of state law: whether lewd and lascivious conduct must occur in
public to constitute a crime. This issue does not raise a federal constitutional claim. See

Ponnapula, 297 F.3d at 181 (concluding petitioner's § 2254 petition "provides no basis
for federal habeas relief because it rests solely on a question of state law"). Nor does this
court have the ability to alter the state court's determination of that question. "[T]he
highest court of the state is the final arbiter of what is state law. When it has spoken, its
pronouncement is to be accepted by federal courts as defining state law[.]" West v. Am.

Tel. & Tel. Co., 311 U.S. 223, 236 (1940).
Lewd and lascivious conduct under Vermont law must be "open and gross[.]" 13
V.S.A. § 2601. The Vermont Supreme Court has examined Petitioner's argument that
the act must be committed in a public place and concluded:
[p ]ublic is not included as a requirement in the statutory language.
Moreover, ... the use of "open" in the statute does not require that the
conduct take place in a public place. . .. [Vermont Supreme Court
precedent] makes clear that conduct violates § 2601 when it is "neither
disguised nor concealed and is witnessed by at least one person."

In re Rheaume, 2016 WL 6562431, at *1 (Vt. Nov. 4, 2016). The Magistrate Judge thus
correctly found that Petitioner "has not asserted that a federal constitutional violation
occurred during the state criminal proceedings-his claims are based entirely on a
purported misapplication of Vermont law." (Doc. 15 at 16.) The court adopts that
conclusion as its own.
Because Petitioner's habeas petition rests solely on a question of state law, federal
habeas relief is unavailable under § 2254 and the petition must be dismissed. The court
therefore does not and need not reach Petitioner's other objections to the R & R which
are directed to whether his petition was timely filed.

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CONCLUSION
For the foregoing reasons, the court ADOPTS IN PART the Magistrate Judge's
R & R (Doc. 15), GRANTS Respondent's motion to dismiss (Doc. 9), and DISMISSES
Petitioner's § 2254 motion (Doc. 5). The remaining pending motions are hereby
DISMISSED AS MOOT. (Docs. 3, 11, 13, 18, 19, & 22.)
Pursuant to Fed. R. App. P. 22(b)(l) and 28 U.S.C. § 2253(c)(2), the court
DENIES Petitioner a certificate of appealability in this matter because Petitioner has
failed to make a substantial showing of the denial of a constitutional right.
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SO ORDERED.
Dated at Burlington, in the District of Vermont, this

/f day of July, 20 17.

c~

United States District Court

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