Hunter v. Pallito

Filing 21

OPINION AND ORDER ADOPTING 19 REPORT AND RECOMMENDATION denying 1 Petition and 16 Amended Petition for Writ of Habeas Corpus, granting 8 and 17 Motions to Dismiss. Case dismissed without prejudice. Signed by Chief Judge Christina Reiss on 3/30/2012. (pam)

UNITED STATES DISTRICT COURT

FOR THE

DISTRICT OF VERMONT

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FREDERICK HUNTER,
Plaintiff,

v.
ANDREW PALLITO,
Commissioner, Vennont
Department of Corrections,
Defendant.

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Case No. 5:11-cv-252

OPINION AND ORDER ADOPTING MAGISTRATE JUDGE'S

REPORT AND RECOMMENDATION

(Docs. 19 & 20)

This matter came before the court for a review of the Magistrate Judge's February
29,2012 Report and Recommendation ("R & R") in the above-captioned matter (Doc.
19). Plaintiff filed an "Answer" to the R & R on March 13, 2012 (Doc. 20). Plaintiff,
Frederick Hunter, is representing himself. Defendant, Andrew Pallito, Commissioner of
the Vennont Department of Corrections, is represented by Robert M. LaRose, Esq.

I.

Plaintiffs Objection to the R & R.
In his Answer, Plaintiff argues that the Magistrate Judge "is in error" based upon a

February 3,2012 entry order from the Vennont Supreme Court dismissing the appeal in
Frederick Hunter v. Andrew A. Pallito, Commissioner, Department o/Corrections,
Docket No. S0714-11 CnC, for noncompliance with the court's Order dated 12/29/2011.
In further support of the claimed error, Plaintiff attaches a Stipulation of Dismissal in In
re Frederick Hunter, Chittenden Superior Court Civil Division, Docket No. S 1157-09
CnC which provides in relevant part that Plaintiff "can make out a prima facie case for
ineffective assistance [of] counsel" due to his trial counsel's failure to ask for bail to be

imposed across all of Plaintiffs dockets. According to the Stipulation, Plaintiff was
awarded credit for certain pre-trial detention. Plaintiff does not further explain how
either document supports his claim for habeas corpus relief or his request for "money
damages for this unlawful restraint, and loss of gold rings and other property." (Doc. 20).
Plaintiff requests a phone hearing to "clear all these false claims of the Respondent." Id.

II.

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 report and
recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140,
150 (1985). When no timely objection is filed, the court need only satisfy itself that there
is no clear error on the face of the record in order to accept the recommendation. See

Campbell v. United States Dist. Court, 501 F.2d 196,206 (9th Cir. 1974), cert. denied,
419 U.S. 879 (1974).

III.

The R & R's Conclusions and Recommendations.
In his eight page R & R, the Magistrate Judge carefully reviewed the factual

record and recommended that Plaintiffs initial and amended petitions be denied (Docs. 1
& 16), that Defendant's motions to dismiss those petitions (Docs. 8 & 17) be granted, and

the case be dismissed without prejudice.
The Magistrate Judge characterized Plaintiffs habeas corpus petition as one based
upon the following claims: (1) Plaintiffs state court sentence exceeds the maximum
sentence authorized by statute; (2) the presiding judge committed errors at trial; (3)
certain trial witnesses were not credible; and (4) defense counsel entered altered records
into evidence. Plaintiff does not dispute this characterization. He also does not appear to
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dispute the Magistrate Judge's recitation of the relevant record. He does not identify the
error he seeks this court to address other than to note that the Stipulation of Dismissal
confirms his claim of ineffective assistance of counsel. However, Plaintiffs claims of
ineffective assistance of counsel here are based upon his trial counsel's alleged use of
false evidence whereas the Stipulation of Dismissal addresses a failure to request that bail
be imposed across all Plaintiffs dockets. Accordingly, although the Stipulation of
Dismissal supports a conclusion that Plaintiff received ineffective assistance of counsel, it
does not address the ineffective assistance of counsel Plaintiff raises in his petitions.
Because of the nature of the documents submitted by Plaintiff to the court, the
court surmises that Plaintiff is challenging the R & R's conclusion that he failed to
exhaust his state court remedies. In order to exhaust his state court remedies, Plaintiff
was required to "present the substance of the same federal constitutional claims that he
now urges upon the federal courts to the highest court in the pertinent state." Aparicio v.
Artuz, 269 F.3d 78,89-90 (2d Cir. 2001) (internal quotation marks and citations omitted).
A dismissal of Plaintiffs appeal for procedural noncompliance is not a full review of his
constitutional claims by the state's highest court, instead, it is a procedural bar to
Plaintiff s claims based upon an independent and adequate state ground. See Ward v.
Hofmann, 2008 WL 2186353, at *3 (D. Vt. May 23,2008) (concluding that dismissal of
petitioner's appeal by Vermont Supreme Court based upon petitioner's failure to file a
timely brief was an "independent and adequate state ground that prevents federal habeas
review."). As a result, this court may reach the merits of Plaintiffs petition only ifhe
can demonstrate either cause and actual prejudice, or that he is actually innocent. St.
Helen v. Senkowski, 374 F.3d 181, 183 (2d Cir. 2004) (quoting Bousley v. United States,
523 U.S. 614, 622 (1998)).
A petitioner may establish cause by showing that the factual or legal basis for his
claim was not reasonably available or that some interference by officials made
compliance impracticable. See Coleman v. Thompson, 501 U.S. 722, 733 (1991). To
satisfy the actual prejudice requirement, Plaintiff must show the alleged error worked to
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his "actual and substantial disadvantage, infecting his entire trial with error of
constitutional dimensions." Torres v. Senkowski, 316 F.3d 147,152 (2d Cir. 2003)
(internal quotation marks omitted). In this case, neither Plaintiffs petition nor his
Answer to the R & R explain how he has satisfied the foregoing conditions for habeas
corpus review. Accordingly, such review must be denied.

IV.

Conclusion.
For the foregoing reasons, the court hereby ADOPTS the R & R as part of this

Opinion and Order. The court DENIES Plaintiffs initial and amended petitions (Docs. 1
& 16) and GRANTS Defendant's motions to dismiss those petitions. (Docs. 8 & 17) and
hereby ORDERS that this case be DISMISSED WITHOUT PREJUDICE.
SO ORDERED.
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Dated at Rutland, in the District of Vermont, this y~ day of March, 2012.

Christina Reiss, Chief Judge

United States District Court

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