Fellows v. Vermont

Filing 15

REPORT AND RECOMMENDATION recommending that Respondents' 5 MOTION to Dismiss be granted in part, as follows: Petitioner's 3 PETITION for Writ of Habeas Corpus should be dismissed without prejudice as unexhausted, except with respect to his claims regarding the ineffectiveness of his PCR counsel and his Vermont Public Defender Act claims, which should be dismissed with prejudice. I also recommend that in light of these recommendations Respondent's 5 M OTION for Stay and Abeyance be denied. I further recommend that the Court refrain from issuing a certificate of appealability. ORDERED: That portion of Respondent's 5 Motion seeking to substitute the Commissioner of Corrections as th e proper Respondent is GRANTED. Regarding the remaining motions, Respondent's 7 MOTION for Extension of Time to File Answer is DENIED as moot; Petitioner's 9 MOTION for Order re: Recording of Vermont State Police and for Transcripts of P.C.R. Trial in Vt. Super. Ct. is DENIED as moot; and 14 MOTION for Telephone Status Conference is DENIED as moot. Objections to R&R due by 3/19/2018. Signed by Judge John M. Conroy on 3/2/2018. (hbc)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT

Frank W. Fellows,
Petitioner,
v.

Civil Action No. 5:17-cv-187

State of Vermont,
Respondent.

REPORT AND RECOMMENDATION AND ORDER
(Docs. 3, 5, 7, 9, 14)
Frank Fellows, a Vermont inmate proceeding pro se, has filed a Petition for
Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 against Respondent the State
of Vermont. (Doc. 3.) In 2010, Fellows was convicted in state court of sexual
assault and lewd and lascivious conduct with a child after a jury trial. He is
currently serving concurrent state sentences of five years to life, and five to fifteen
years.
Fellows’s Petition and subsequent Amendments attack the proceedings both
in his underlying criminal trial and in his postconviction relief (PCR) case. (See
Docs. 3, 12, 13.) Reading Fellows’s papers liberally, he appears to assert the
following 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 was ineffective and conspired against him with the prosecutor
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 was ineffective,
resulting in a delay in the proceedings such that state remedies are now futile. (Id.)
Fellows claims that, “had it not been for the[se] constitutional and plain errors[,] no
reasonable factfinder would have found [him] guilty.” (Doc. 12 at 3.)
In response to Fellows’s Petition, Respondent has filed a Motion to Dismiss,
seeking to dismiss without prejudice “various claims” contained in the Petition on
several different grounds. (Doc. 5 at 1.) First, Respondent contends that the
Petition should be dismissed because “there is an ongoing and active PCR case in
the Vermont Superior Court.” (Id. at 4; see also id. at 9.) Second, Respondent
asserts that, although the Petition is difficult to understand, it appears to raise
claims that are not cognizable in a petition arising under 28 U.S.C. § 2254,
including claims that PCR counsel was ineffective. (Id. at 4–5, 9.) Third,
Respondent argues that some of Fellows’s claims are barred by procedural forfeiture
because Fellows did not file his Petition within the applicable one-year statute of
limitations found at 28 U.S.C. § 2244(d)(1). (Id. at 7, 11.) Fourth, Respondent

2

contends that Fellows’s claim of objectionable conduct by the prosecutor in his
criminal trial is procedurally barred because Fellows failed to raise it in the trial
court and on direct appeal to the Vermont Supreme Court. (Id. at 8.) Finally,
Respondent urges that, if Fellows shows good cause to stay (rather than dismiss)
his Petition, he must amend the Petition to replace the Vermont Commissioner of
Corrections for the State of Vermont as Respondent. (See id.)
Respondent has also filed a Motion for Extension of Time, seeking an
extension of time to answer the Petition until thirty days after an amended petition
has been filed. (Doc. 7 at 2.) In support, Respondent argues that the Petition does
not comply with Rule 2(c) and (d) of the Rules Governing Section 2254 Cases, which
state in relevant part that petitions filed under § 2254 must “state the facts
supporting each ground” and must “substantially follow either the form appended to
these rules or a form prescribed by a local district-court rule.” Rules Governing
Section 2254 Cases in the United States District Courts: 28 U.S.C.A. Foll. § 2254,
Postconviction Remedies Appendix B, Rule 2(c)(2) and (d) (June 2017 update).
Respondent also claims the Petition does not comply with Rules 10(b) and 12(e) of
the Federal Rules of Civil Procedure. Rule 10(b) requires that a party must “state
its claims or defenses in numbered paragraphs, each limited as far as practicable to
a single set of circumstances.” Fed. R. Civ. P. 10(b). And Rule 12(e) allows a party
to “move for a more definite statement of a pleading to which a responsive pleading
is allowed but which is so vague or ambiguous that the party cannot reasonably
prepare a response.” Fed. R. Civ. P. 12(e).

3

Fellows has filed a Response to Respondent’s Motion to Dismiss (Doc. 11);
and has moved for the Court to “order the State Police Department of St. Johnsbury
. . . to turn over [a copy of an April 2009 police recording involving a detective and
Fellows],” along with “proof of [a]uthentication,” and to also turn over several
transcripts from Fellows’s PCR trial (Doc. 9). Fellows has also filed a letter asking
the Court to hold a “status conference by phone” and to hear his pending Petition
and Amendments in a “speedy” manner. (Doc. 14.) No particular reason is stated
in support of the requested status conference. (Id.)
For the reasons explained below, I recommend that Respondent’s Motion to
Dismiss (Doc. 5) be GRANTED in part, as follows: Fellows’s Petition (Doc. 3) should
be DISMISSED without prejudice as unexhausted, except with respect to his PCRrelated claims and his Vermont Public Defender Act claims, which should be
DISMISSED with prejudice. Given these recommendations, I further recommend
that Respondent’s Motion to Dismiss (Doc. 5) be DENIED with respect to the claims
regarding a stay and changing the name of the respondent on the Petition.
Regarding the remaining motions, Respondent’s motion seeking an extension of
time to respond to the Petition (Doc. 7) is DENIED as moot; Fellows’s motion
seeking an order requiring the production of police recordings and trial transcripts
(Doc. 9) is DENIED as moot; and Fellows’s request for a status conference (Doc. 14)
is DENIED as moot.

4

Factual and Procedural Background1
I.

Criminal Trial and Conviction
Following an investigation by the Department of Children and Families in

April 2009, Fellows was charged in the Essex County Superior Court with sexual
assault and lewd and lascivious conduct with a child, his 14-year-old daughter.
Fellows denied the charges, and the case proceeded to a three-day jury trial
beginning on September 21, 2010. (Doc. 5-2 at 3–4.) At the trial, the State called to
the stand the victim (Fellows’s daughter) and six other witnesses: a clinical
psychologist who testified as an expert witness, the nurse practitioner who
examined the victim after the incident, the victim’s counselor, the victim’s teacher,
the victim’s friend who helped the victim report the incident, and the police officer
who conducted the initial interview of Fellows about the incident. Fellows, 2013 VT
45, ¶ 8. Fellows called his two sisters as witnesses. Id.
Fellows was out on conditions of release pending trial. Without explanation,
however, he did not attend the second and third days of trial, resulting in the
issuance of a warrant for his arrest. (Doc. 5-2 at 4.) In October 2010, the jury
convicted Fellows, and he was later sentenced to concurrent sentences of five years
to life for the sexual assault conviction and five to fifteen years for the lewd and
lascivious conduct conviction. (Id. at 4–5.) At his October 11, 2011 sentencing
hearing, Fellows conceded that he had fled after the first day of trial, explaining

This factual summary is largely derived from the Vermont Supreme Court’s
opinion in State v. Fellows, 2013 VT 45, 194 Vt. 77, 76 A.3d 608.
1

5

that he was frustrated with his lawyer’s representation of him and “decided [that
his] own lawyer w[as not] even trying to fight [for him].” (Doc. 5-1 at 2.)
Fellows appealed his conviction and sentence to the Vermont Supreme Court
on two principal grounds: (1) “the trial court erred by allowing the State to question
[Fellows’s] sisters about [Fellows’s] sexual relationship with [the victim’s] mother
when she was a minor and to use the evidence of that relationship in its closing
argument to show that [Fellows] acted in conformity with that prior bad act,”
Fellows, 2013 VT 45, ¶ 10; and (2) “the trial court committed reversible error when
it admitted testimony from [the victim’s friend] relating the conversations that she
had with [the victim] on the day after the incident,” id. at ¶ 21. On June 28, 2013,
the Vermont Supreme Court affirmed Fellows’s conviction. Id. at ¶ 1.
Fellows now appears to claim that he filed a motion asking the court to
reconsider his sentence and that the court denied that motion in reliance on the
prosecutor’s false statement that it was untimely. (Doc. 3 at 2.) A review of the
docket, however, shows that no such motion was filed. (See generally Docket, State
v. Fellows, No. 54-4-09 Excr (Vt. 2013); see also Doc. 5-2.)
II.

PCR Petition
On November 5, 2013, Fellows filed a PCR Petition in state court, arguing

that he received ineffective assistance of counsel from his trial attorney. (Doc. 5-4
at 1.) In its entirety, the PCR Petition states as follows:
[My attorney] dozed off on more than one occasion[;] he was late on more
than one occasion[;] he failed to investigate evidence or lack thereof[;]
and he failed to counsel me or defend me in any way. He began my case
in court by bringing prejudicial evidence against me about my past
which allowed the State to use that against me throughout the trial and

6

in its closing argument. He did not ensure witnesses were used in the
proper order. He did not object when necessary during the crossexamination of my character witnesses. I believe that he convinced the
prosecution to add the second charge of lewd and lascivious conduct. He
failed to get a deposition from the victim at the beginning to use in crossexamination during the trial. He refused to use some of the character
witnesses I thought were valuable to my case. He should have put in a
request to post[]pone my trial until I was located instead of proceeding
without me.
Fellows v. Vermont, No. 50-11-13 Excv (Vt. Super. Ct. filed Nov. 5, 2013). On
December 10, 2013, Attorney Mark Furlan entered his appearance in the case as
counsel for Fellows. (Doc. 5-4 at 2.)
In June, July, and August 2017, the Essex Civil Division of the Vermont
Superior Court held four days of hearings in connection with Fellows’s PCR
Petition. (Id. at 6–7.) The Petition remains pending in that court.
III.

Petition for Writ of Habeas Corpus
On October 2, 2017, Fellows filed the instant Petition for Writ of Habeas

Corpus pursuant to 28 U.S.C. § 2254. (Doc. 3.) Approximately one month later,
Fellows filed two Amendments to the Petition. (Docs. 12, 13.) Although “an
amended complaint ordinarily supersedes the original, and renders it of no legal
effect,” Dluhos v. Floating & Abandoned Vessel, 162 F.3d 63, 68 (2d Cir. 1998)
(internal quotation marks omitted), because it is difficult to understand Fellows’s
factual allegations without considering the original Petition together with the
subsequent Amendments, and given Fellows’s pro se status, I have considered all
three documents as one, see Herbert v. Delta Airlines, No. 12-CV-01250 (SLT)(LB),
2014 WL 4923100, at *1 n.2 (E.D.N.Y. Sept. 30, 2014) (reading pro se plaintiff’s
original and amended complaints together).

7

As summarized above, Fellows claims nine grounds for relief in his Petition
and subsequent Amendments, most of them relating to his underlying criminal
trial. (Docs. 3, 12, 13.) He alleges that he is being held in violation of the United
States Constitution and federal laws (Doc. 3 at 1), and seeks to be released from
custody until the State “can show they have a reason to retry this case fairly and
allow [him] to confront the wi[]tness[es] against [him]” (id. at 2). Each of Fellows’s
grounds for relief is raised for the first time in the Petition and Amendments, with
the exception of certain components of the ineffective assistance of counsel claim
against his trial attorney, Sten Lium, which are currently being litigated in the
pending PCR proceedings. As discussed below, most of Fellows’s claims remain to
be resolved both in the state trial court and in the appellate court. Also noteworthy,
although the Petition and Amendments contain many theories and accusations,
they include very few facts.
Analysis
I.

Motion to Dismiss
A.

Legal Standard

Fellows’s Petition is governed by the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), which applies to petitions filed by incarcerated state
court defendants seeking federal habeas corpus relief pursuant to 28 U.S.C. § 2254.
Under this statute, a federal court may not grant a state prisoner’s habeas
application unless the relevant state-court decision was: (1) “contrary to, or involved
an unreasonable application of, clearly established Federal law, as determined by
the Supreme Court of the United States,” or (2) “based on an unreasonable

8

determination of the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d)(1)–(2); see Williams v. Taylor, 529 U.S. 362, 412
(2000). “[C]learly established Federal law” “refers to the holdings, as opposed to the
dicta,” of the Supreme Court’s decisions “as of the time of the relevant state-court
decision.” Carey v. Musladin, 549 U.S. 70, 74 (2006) (quoting Williams, 529 U.S. at
412). And a state-court decision is “contrary to” federal law if the state court
“arrives at a conclusion opposite to that reached by th[e Supreme] Court on a
question of law,” or decides a case differently than the Supreme Court on
“materially indistinguishable” facts. Williams, 529 U.S. at 405. Relief is
appropriate under the “unreasonable application” clause of § 2254(d)(1) “if the state
court correctly identifies the governing legal principle from [the Supreme Court’s]
decisions but unreasonably applies it to the facts of the particular case.” Bell v.
Cone, 535 U.S. 685, 694 (2002).
Federal courts considering habeas petitions brought under § 2254 must give
the state court’s adjudication “a high degree of deference,” Yung v. Walker, 341 F.3d
104, 109 (2d Cir. 2002) (citing Brown v. Artuz, 283 F.3d 492, 497 (2d Cir. 2002)), and
the state court’s “determination of . . . factual issue[s] . . . shall be presumed to be
correct,” 28 U.S.C. § 2254(e)(1); see Cullen v. Pinholster, 563 U.S. 170, 181 (2011)
(standard under § 2254 is “difficult to meet” and “highly deferential . . . for
evaluating state-court rulings, . . . demand[ing] that state-court decisions be given
the benefit of the doubt” (internal quotation marks omitted)). The petitioner has
the burden of rebutting this presumption of the state court’s correctness by “clear
and convincing evidence.” Yung, 341 F.3d at 109.

9

B.

Exhaustion

Federal courts generally do not grant habeas relief from a state court
conviction, as Fellows seeks here, unless the petitioner “has exhausted the remedies
available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A). To satisfy this
exhaustion requirement, a petitioner “must present the substance of the same
federal constitutional claim[s] 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) (alteration in original) (internal citation and quotation marks omitted); see
Rose v. Lundy, 455 U.S. 509, 518 (1982) (The exhaustion doctrine “is principally
designed to protect the state courts’ role in the enforcement of federal law and
prevent disruption of state judicial proceedings.”). Exhaustion may be achieved
through either a full round of the state’s appellate review process or a full round of
postconviction proceedings. See O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)
(“Because the exhaustion doctrine is designed to give the state courts a full and fair
opportunity to resolve federal constitutional claims before those claims are
presented to the federal courts, we conclude that state prisoners must give the state
courts one full opportunity to resolve any constitutional issues by invoking one
complete round of the State’s established appellate review process.”); Castille v.
Peoples, 489 U.S. 346, 350 (1989) (“[O]nce the state courts have ruled upon a claim,
it is not necessary for a petitioner to ask the state for collateral relief, based upon
the same evidence and issues already decided by direct review.” (internal quotation
marks omitted)). “The burden of proving exhaustion lies with the habeas

10

petitioner.” Cartagena v. Corcoran, No. 04-CV-4329 (JS), 2009 WL 1406914, at *3
(E.D.N.Y. May 19, 2009) (citing Colon v. Johnson, 19 F. Supp. 2d 112, 120 (S.D.N.Y.
1998)).
In this case, Fellows has not sought direct review of his current claims in the
state court. His appeal to the Vermont Supreme Court involved two evidentiary
issues, which are not raised in the pending Petition. See Fellows, 2013 VT 45.
Specifically, as noted above, Fellows’s direct appeal to the Vermont Supreme Court
involved (1) the testimony of Fellows’s two sisters regarding Fellows’s sexual
relationship with the victim’s mother when she was a minor, and (2) the testimony
of the victim’s friend regarding conversations she had with the victim on the day
after the incident. Id. at ¶¶ 1, 10, 21. Neither claim is at issue in Fellows’s Petition
filed in this Court. Furthermore, although Fellows has initiated collateral review of
his ineffective assistance of trial counsel claim, the Vermont Superior Court has not
yet reached a decision on that issue. See generally Docket, Fellows v. Vermont,
No. 50-11-13 Excv (Vt. 2013). Therefore, Fellows has not completed a “full round” of
either appellate or PCR review, and his claims remain unexhausted. O’Sullivan,
536 U.S. at 845.
Where, as here, a petitioner has not exhausted his state remedies, the federal
court must decide whether his claim should be “deemed exhausted,” thereby
excusing the requirement that it be presented to a state court. Ramirez v. Attorney
Gen. of State of New York, 280 F.3d 87, 94 (2d Cir. 2001). A claim is deemed
exhausted “if it is clear that the state court would hold [it] procedurally barred.”
Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991) (quoting Harris v. Reed, 489 U.S.

11

255, 263 n.9 (1989)); see Aparicio, 269 F.3d at 90 (federal court may deem a claim
exhausted “if it is clear that the unexhausted claim is procedurally barred by state
law and, as such, its presentation in the state forum would be futile”). In such a
case, the petitioner no longer has “remedies available in the courts of the State,”
within the meaning of 28 U.S.C. § 2254(b)(1)(A). Moreover, unexhausted claims
may be deemed exhausted if “there is an absence of available State corrective
process” or “circumstances exist that render such process ineffective to protect the
rights of the applicant.” Id. at § 2254(b)(1)(B)(i) and (ii).
Under Vermont law, a claim that has not been raised on direct appeal is
“barred” if, absent exigent circumstances, “the movant deliberately bypassed the
issue on appeal.” In re Stewart, 140 Vt. 351, 361, 438 A.2d 1106, 1110 (1981)
(“Post[]conviction relief is not a substitute for appeal.”). Furthermore, when a §
2254 petitioner has brought a PCR petition in state court, Vermont law dictates
that a second such petition may be considered an “abuse of the writ.” In re Laws,
2007 VT 54, ¶¶ 16–22, 182 Vt. 66, 928 A.2d 1210 (quoting Sanders v. United States,
373 U.S. 1, 17 (1963); McCleskey v. Zant, 499 U.S. 467, 489 (1991)). A petitioner
abuses the writ by “raising a claim in a subsequent petition that he could have
raised in his first, regardless of whether the failure to raise it earlier stemmed from
a deliberate choice.” Id. at ¶ 18 (quoting McCleskey, 499 U.S. at 489).
Fellows’s claims of prosecutorial misconduct at his criminal trial are
procedurally barred because Fellows “deliberately bypassed” these claims in his
direct appeal to the Vermont Supreme Court. In re Stewart, 140 Vt. at 361.
Although the Supreme Court in its June 2013 decision addressed certain

12

questioning and argument of the prosecutor at Fellows’s criminal trial (ultimately
finding “no plain error in the prosecutor’s closing argument,” Fellows, 2013 VT 45,
¶ 20), Fellows did not raise in that appeal the claims of prosecutorial misconduct
raised here. For example, Fellows’s appeal to the Supreme Court did not include
claims that the prosecutor at his criminal trial coerced witnesses, tainted the jury,
improperly delayed the trial, withheld evidence, and corrupted transcripts, all of
which are alleged in Fellows’s pending Habeas Petition and Amendments. (See Doc.
3 at 3, 5; Doc. 12 at 2; Doc. 13 at 1.)
Regarding Fellows’s claims of ineffective assistance of his trial counsel, they
may be raised postconviction without having been raised on appeal. See State v.
Spooner, 2010 VT 75, ¶ 23, n.5, 188 Vt. 356, 8 A.3d 469 (“the proper avenue of
raising the issue of ineffective assistance of counsel is through a motion for
post[]conviction relief, and not through a direct appeal of a conviction” (quoting
State v. Gabaree, 149 Vt. 229, 232–33 (1988))). And, in fact, as quoted above,
Fellows has raised claims of ineffective assistance of his trial counsel in his pending
PCR Petition to the state trial court. As noted, however, that Petition remains
pending. (See Docs. 5-4, 5-5, 5-6.) Therefore, Fellows has not yet exhausted this
avenue of relief, and this claim is therefore procedurally barred.
Where, as here, a petitioner has failed to properly exhaust his claims in state
court, and “‘the court to which the petitioner would be required to present his claims
in order to meet the exhaustion requirement would now find the claims
procedurally barred,’” the claim “is procedurally defaulted” for the purpose of
federal habeas review. Reyes v. Keane, 118 F.3d 136, 140 (2d Cir. 1997) (emphasis

13

omitted) (quoting Coleman v. Thompson, 501 U.S. 722, 735 (1991)); see Gray v.
Netherland, 518 U.S. 152, 162 (1996) (“[T]he procedural bar that gives rise to
exhaustion provides an independent and adequate state-law ground for the
conviction and sentence, and thus prevents federal habeas corpus review of the
defaulted claim, unless the petitioner can demonstrate cause and prejudice for the
default.”). To avoid procedural default, the petitioner must demonstrate either
“cause for the default and actual prejudice as a result of the alleged violation of
federal law,” or that “failure to consider the claims will result in a fundamental
miscarriage of justice.” Acosta v. Artuz, 575 F.3d 177, 184 (2d Cir. 2009) (quoting
Coleman, 501 U.S. at 750). Use of the fundamental miscarriage of justice exception
is “‘extremely rare[,]’ and should be applied only in ‘the extraordinary cases.’” Sweet
v. Bennett, 353 F.3d 135, 142 (2d Cir. 2003) (quoting Schlup v. Delo, 513 U.S. 298,
321–22 (1995)).
Fellows’s Petition and Amendments make no effort to show either cause for
his failure to raise all of his ineffective assistance of counsel arguments in his state
PCR Petition, or actual prejudice resulting from that failure. The same is true
regarding Fellows’s prosecutorial misconduct claims. Nor does Fellows urge the
Court to excuse his procedural defaults on the basis of a fundamental miscarriage of
justice. In his Petition, Fellows vaguely asserts a “miscarriage of [j]ustice [that] if
uncorrected would be an affront to the integrity and reputation of [j]udicial
[p]roceedings,” without offering any further explanation. (Doc. 3 at 3; see also Doc.
12 at 1.) Moreover, throughout his Petition and Amendments, Fellows does not
challenge his underlying guilt, instead seeking court review of his sentence in light

14

of the alleged misconduct occurring throughout his criminal trial and the alleged
ineffectiveness of his PCR attorney. (See generally Docs. 3, 12, 13).
Fellows claims “the court has allowed [an] excessive enlargement of time” in
his PCR case; and that four years is “not [a] reasonable [amount of time]” for that
case to be pending. (Doc. 10; see Doc. 11 at 1 (“The Court has willing[]ly allowed
[the pending PCR case] to drag on [for] four year[]s now and still no decision.”).)
Moreover, Fellows claims he is “not trying to argue . . . inef[f]ective [assistance of]
counsel” in this Court, but rather, he is trying to obtain a resolution of his PCR
case. (Doc. 10.) Reading Fellows’s papers liberally, he thus argues that an
exception to the exhaustion requirement should apply here because the four-year
delay in his PCR proceedings has rendered those proceedings constitutionally
deficient. Oliphant v. Dep’t of Corr., No. 3:04CV470 (CFD), 2006 WL 2432276, at *4
(D. Conn. Aug. 18, 2006) (citing Duckworth v. Serrano, 454 U.S. 1, 3 (1981)).
It is true that “[i]nordinate delay in concluding its post[]judgment criminal
proceedings may preclude a state from relying on the exhaustion requirement to
defeat [f]ederal review.” Sapienza v. Vincent, 534 F.2d 1007, 1010 (2d Cir. 1976).
The Second Circuit has not defined the precise interval that constitutes an
“inordinate delay,” but it has noted that “an inmate is not required ‘to wait six years
. . . or even three or four years before enlisting federal aid.’” Oliphant, 2006 WL
2432276, at *4 (quoting Simmons v. Reynolds, 898 F.2d 865, 870 (2d Cir. 1990)).
Several decisions in this circuit have held that postconviction proceedings were
sufficiently delayed to allow a petitioner to bypass an exhaustion requirement. The
delays in those cases, however, were longer than the delay Fellows alleges here.

15

See, e.g., Sapienza, 534 F. 2d at 1009–10 (over five-year delay); Simmons, 898 F. 2d
at 870 (six-year delay); Brooks v. Jones, 875 F. 2d 30, 31–32 (2d Cir. 1989) (eightyear delay); cf. Young v. Strange, No. 3:03CV1661(CFD), 2005 WL 1943573, at *2–3
(D. Conn. Aug. 12, 2005) (over two-year delay insufficient to meet second exception
to exhaustion requirement). While a four-year delay may be inconvenient, it does
not preclude a state from relying on the exhaustion requirement to defeat federal
review.
Accordingly, Fellows’s claims have not been exhausted, and he should not be
relieved of his default to warrant this Court’s review of his unexhausted claims.
C.

Dismissal With or Without Prejudice

Notwithstanding a petitioner’s failure to exhaust, the federal court may
dismiss with prejudice a habeas petition when the unexhausted claims are “plainly
meritless.” Rhines v. Weber, 544 U.S. 269, 277 (2005); see 28 U.S.C. § 2254(b)(2);
Rivas v. Fischer, 687 F.3d 514, 535 (2d Cir. 2012) (noting that Rule 4 of the Rules
Governing § 2254 Cases “require[] a district judge to dismiss a [habeas] petition [i]f
it plainly appears from the petition and any attached exhibits that the petitioner is
not entitled to relief” (third alteration in original) (internal quotation marks
omitted)). Here, given the limited facts and sparse record provided in support of
Fellows’s Petition and Amendments,2 the Court is unable to determine if the
majority of Fellows’s unexhausted claims are plainly meritless. Therefore,

For example, the record does not contain information or evidence to support Fellows’s
allegation that his Miranda rights and rights under the Vermont Public Defender Act were violated.
Nor does the record contain information or evidence to support Fellows’s claims about corrupted trial
transcripts and the court’s failure to notify him of judgment.
2

16

dismissal of these claims without prejudice is appropriate, with the exception of
Fellows’s claims regarding the ineffectiveness of his PCR counsel and his Vermont
Public Defender Act claims, which should be dismissed with prejudice, as discussed
below.
Fellows asserts that the PCR proceedings were constitutionally defective due
to the ineffectiveness of his PCR attorney, Mark Furlan. But Fellows’s
dissatisfaction with PCR counsel is not a basis for habeas relief. Section 2254(i)
explicitly states: “The ineffectiveness or incompetence of counsel during Federal or
State collateral post[]conviction proceedings shall not be a ground for relief in a
proceeding arising under section 2254.” The Second Circuit explained: “[A]lleged
errors in a postconviction proceeding are not grounds for § 2254 review because
federal law does not require states to provide a post-conviction mechanism for
seeking relief.” Word v. Lord, 648 F.3d 129, 132 (2d Cir. 2011).
Nor are Fellows’s Vermont Public Defender Act (13 V.S.A. § 5231 et seq.)
claims a proper basis for habeas relief, as they are pure state law claims and “[i]t 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
of the United States.” Ponnapula v. Spitzer, 297 F.3d 172, 182 (2d Cir. 2002) (citing
28 U.S.C. § 2254; Estelle v. McGuire, 502 US 62, 67–68 (1991) (“[I]t is not the
province of a federal habeas court to reexamine state-court determinations on statelaw questions.”)).
Therefore, Fellows’s claims regarding the ineffectiveness of his PCR counsel
and his Vermont Public Defender Act claims should be dismissed with prejudice,

17

while his remaining claims should be dismissed without prejudice for failure to
exhaust.
II.

Stay and Abeyance
Respondent asks the Court to consider a stay so that Fellows might exhaust

his unexhausted claims in the state courts and then return to federal court. (Doc. 5
at 11–12.) When presented with a habeas petition containing both exhausted and
unexhausted claims, a federal court may stay the petition and hold it in abeyance to
give the petitioner an opportunity to exhaust the unexhausted claims in state court.
Rhines, 544 U.S. at 276–77. However, as the United States Supreme Court
explained in Rhines v. Weber, staying a federal habeas petition “frustrates AEDPA’s
objective of encouraging finality by allowing a petitioner to delay the resolution of
the federal proceedings,” and “undermines AEDPA’s goal of streamlining federal
habeas proceedings by decreasing a petitioner’s incentive to exhaust all his claims
in state court prior to filing his federal petition.” Id. at 277. Therefore, the
Supreme Court held that “stay and abeyance should be available only in limited
circumstances.” Id.
The Court in Rhines held that three conditions must be satisfied before the
district court may grant a petitioner’s motion to stay a mixed habeas petition:
(1) there must be “good cause” for the petitioner’s failure to exhaust his claims in
state court; (2) the unexhausted claims must be “potentially meritorious”; and
(3) the petitioner must not have engaged in “abusive litigation tactics or intentional
delay.” Id. at 277–78. If the petitioner fails to satisfy these conditions, the district
court should dismiss the petition; or, “if dismissal of the entire petition would

18

unreasonably impair the petitioner’s right to obtain federal relief,” the court should
permit the petitioner to proceed on only his exhausted claims. Id. at 278. If, on the
other hand, the petitioner satisfies all three conditions, “the district court should
stay, rather than dismiss, the mixed petition.” Id.
Preliminarily, Fellows has shown neither that he had good cause for his
failure to exhaust the relevant claims, nor that these claims are potentially
meritorious. Moreover, none of Fellows’s claims have been exhausted or should be
deemed exhausted for purpose of federal review, and therefore a stay is not an
option. See Kalu v. New York, No. 08-CV-4984 (NGG), 2009 WL 7063100, at *5
(E.D.N.Y. Sept. 15, 2009) (collecting cases and holding that “the stay-and[]abeyance procedure described in Rhines is not available . . . where . . . the petition
is not mixed, and contains only unexhausted claims”).
Furthermore, even if this Court determined that Fellows could overcome
procedural default by making the requisite showing of cause and resulting
prejudice, a stay would nonetheless be inappropriate because all of his claims are
time-barred, except for the arguments he has raised in his PCR proceedings. 28
U.S.C. § 2244(d)(1), requires that a petitioner must file an application for a writ of
habeas corpus within one year of his conviction becoming final. See Smith v.
McGinnis, 208 F.3d 13, 15 (2d Cir. 2000). Moreover, when § 2244(d)(1) is
implicated, the statute of limitations must be applied individually to each claim in
the habeas petition. Fielder v. Varner, 379 F.3d 113, 118 (3d Cir. 2004); Bachman v.
Bagley, 487 F.3d 979, 984 (6th Cir. 2007), abrogated on other grounds as stated in
Crangle v. Kelly, 838 F.3d 673, 678 (6th Cir. 2016); Mardesich v. Cate, 668 F.3d

19

1164, 1170 (9th Cir. 2012); Prendergast v. Clements, 699 F.3d 1182, 1186–87 (10th
Cir. 2012); Zack v. Tucker, 704 F.3d 917, 926 (11th Cir. 2013) (en banc). A
conviction becomes final “when [the] time to seek direct review in the United States
Supreme Court by writ of certiorari expire[s],” that is, 90 days after the final
determination by the state court. Williams v. Artuz, 237 F.3d 147, 150 (2d Cir.
2001) (second alteration in original) (quoting Ross v. Artuz, 150 F.3d 97, 98 (2d Cir.
1998)). The one-year limitations period is tolled, however, during the pendency of
“a properly filed application for State post-conviction or other collateral review with
respect to the pertinent judgment or claim.” 28 U.S.C. § 2244(d)(2); see Smith, 208
F.3d at 16–17.
Applied here, the one-year limitations period commenced 90 days after the
Vermont Supreme Court decided Fellows’s direct appeal, unless Fellows petitioned
the United States Supreme Court for a writ of certiorari within that time period.
See Cordero v. Rivera, 677 F. Supp. 2d 684, 696 (S.D.N.Y. 2009); Williams, 237 F.3d
at 150–51. There is no indication that Fellows filed any such petition. Accordingly,
Fellows’s federal habeas limitations period began to run 90 days from the Vermont
Supreme Court’s June 28, 2013 decision on Fellows’s direct appeal, or on September
26, 2013; and the limitations period expired one year from that date, on September
26, 2014. Fellows did not file the instant Habeas Petition until October 2, 2017,
over three years too late.
On the other hand, Fellows filed his PCR Petition in the state court on
November 5, 2013, well within the one-year limitations period. The claims raised in
that Petition––which is currently pending before the state court––are therefore not

20

time-barred, and the statute of limitations remains tolled with respect to the issues
raised in the PCR proceedings throughout the duration of those proceedings.
As noted above, the central reason a federal court should stay ruling on a
habeas petition containing unexhausted claims is to give the petitioner a chance to
exhaust those claims in state court without overrunning the applicable limitations
period. Rhines, 544 U.S. at 276–78. Here, however, a stay is not warranted
because the limitations period on the claims contained in Fellows’s Petition and
Amendments had already run by the time he filed them, and therefore Fellows faces
no risk of overrunning the limitations period while exhausting his claims in state
court. Moreover, regarding Fellows’s PCR claims, as noted above, the limitations
period remains tolled, so there is no danger that those claims will be time-barred. A
stay of the pending Petition is therefore not proper. See Shomo v. Maher, No. 04CV-4149KMK, 2005 WL 743156, at *7 n.12 (S.D.N.Y. Mar. 31, 2005) (“[T]here is no
basis to retain jurisdiction over a petition that contains only unexhausted claims.”).
III.

Respondent’s Motion for Extension of Time to Answer and Request
for Substitution of Party Respondent, and Fellows’s Motion for
Production of Documents and Request for Status Conference
Because I recommend that Fellows’s Petition and Amendments (Docs. 3, 12,

13) be dismissed, Respondent’s motion seeking an extension of time to respond to
the Petition (Doc. 7) is denied as moot. Respondent’s request that the
Commissioner of Corrections be substituted as the proper Respondent (Doc. 5 at
9–10) is granted. Moreover, Fellows’s motion seeking an order requiring the
production of police recordings and trial transcripts (Doc. 9) and his request for a
status conference (Doc. 14) are denied as moot.

21

Conclusion
For these reasons, I recommend that Respondent’s Motion to Dismiss (Doc. 5)
be GRANTED in part, as follows: Fellows’s Petition (Doc. 3) should be DISMISSED
without prejudice as unexhausted, except with respect to his claims regarding the
ineffectiveness of his PCR counsel and his Vermont Public Defender Act claims,
which should be DISMISSED with prejudice. I also recommend that in light of
these recommendations Respondent’s Motion to Dismiss (Doc. 5) be DENIED
insofar as it relates to a suggested stay. That portion of the Motion (Doc. 5) seeking
to substitute the Commissioner of Corrections as the proper Respondent is
GRANTED.
Regarding the remaining motions, Respondent’s motion seeking an extension
of time to respond to the Petition (Doc. 7) is DENIED as moot; Fellows’s motion
seeking an order requiring the production of police recordings and trial transcripts
(Doc. 9) is DENIED as moot; and Fellows’s request for a status conference (Doc. 14)
is DENIED as moot.
I further recommend that the Court refrain from issuing a certificate of
appealability. In a § 2254 proceeding, a certificate of appealability may issue “only
if the applicant has made a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). Under this standard, a certificate will not issue
unless reasonable jurists could debate whether the petition should have been
resolved in a different manner, or the issues are “adequate to deserve
encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000)
(internal quotation marks omitted). I am unable to find that reasonable jurists

22

could debate whether Fellows’s Petition and Amendments should have been
resolved in a different manner.
Dated at Burlington, in the District of Vermont, this 2nd day of March 2018.
/s/ John M. Conroy
.
John M. Conroy
United States Magistrate Judge
Any party may object to this Report and Recommendation within 14 days
after service thereof, by filing with the Clerk of the Court and serving on the
Magistrate Judge and all parties, written objections which shall specifically identify
those portions of the Report and Recommendation to which objection is made and
the basis for such objections. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d),
72(b)(2); L.R. 72(c). Failure to timely file such objections “operates as a waiver of
any further judicial review of the magistrate’s decision.” Small v. Sec’y of Health
and Human Servs., 892 F.2d 15, 16 (2d Cir. 1989).

23