Davey v. Baker

• Decision Date: 17 December 2021
• Docket Number: 2021-111
• Citation: 2021 VT 94
• Court: Vermont Supreme Court
• Parties: Anthony Davey v. James Baker

2021 VT 94

Anthony Davey
v.
James Baker

No. 2021-111

Supreme Court of Vermont

December 17, 2021

On Appeal from Superior Court, Windsor Unit, Civil Division Robert P. Gerety, Jr., J.

Matthew F. Valerio, Defender General, and Annie Manhardt, Prisoners' Rights Office, Montpelier, for Plaintiff-Appellant.

Thomas J. Donovan, Jr., Attorney General, Montpelier, and Patrick T. Gaudet, Assistant Attorney General, Waterbury, for Defendant-Appellee.

PRESENT: Reiber, C.J., Robinson, ^[1] Eaton, Carroll and Cohen, JJ.

CARROLL, J.

¶ 1. Petitioner Anthony Davey appeals the dismissal of his habeas corpus petition filed after the Department of Corrections (DOC) revoked his community-reentry furlough status. Petitioner argues that DOC's procedural errors following his arrest, after he absconded from furlough for more than eighteen months, constitute a denial of his due process rights. He also contends that legislation governing appeals of community-reentry furlough revocations does not apply to him. While we agree that DOC's procedural errors raise legitimate

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concerns, petitioner did not avail himself of an appropriate alternative avenue to challenge DOC's decision regarding his furlough status. Therefore, we affirm.

¶ 2. We review the trial court's dismissal order de novo, and we may affirm on any ground. Bock v. Gold, 2008 VT 81, ¶ 4, 184 Vt. 575, 959 A.2d 990 (mem.). A motion to dismiss may not be granted "unless it appears beyond doubt that there exist no facts or circumstances that would entitle the plaintiff to relief." Wool v. Off. of Pro. Regul., 2020 VT 44, ¶ 8, 212 Vt. 305, 236 A.3d 1250 (quotation omitted). "On appeal, we assume as true the nonmoving party's factual allegations and accept all reasonable inferences that may be drawn from those facts." Murray v. City of Burlington, 2012 VT 11, ¶ 2, 191 Vt. 597, 44 A.3d 162 (mem.).

¶ 3. With this standard in mind, the relevant facts are as follows. Petitioner was convicted of several counts of sexual assault in 2014. Petitioner is currently incarcerated, serving a sentence for which his minimum release date was March 30, 2017 and his maximum sentence is life. Petitioner was placed on community-reentry furlough status on April 5, 2017.^[2] During the nearly two years petitioner was on furlough, he lived with his grandmother in Pownal and held a few jobs. He was subject to a curfew and a condition that he avoid places where children gather. Otherwise, petitioner was free to travel throughout the state.

¶ 4. On March 6, 2019, petitioner failed to appear for a scheduled meeting with his parole officer. The parole officer called petitioner and petitioner did not answer. Petitioner was not home moments after curfew that night. The next day, petitioner missed a second phone call from his parole officer, and again was not home at his evening curfew. DOC placed petitioner on "absconded" status and issued a "Return on Mittimus" warrant for his arrest. DOC made no further

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attempts to locate petitioner. The following week, petitioner was charged with escape from furlough in Bennington County. In June 2019, he was charged with failure to comply with the sex-offender registry.

¶ 5. Petitioner was arrested by U.S. Marshals on October 27, 2020. On that date, DOC provided petitioner with a notice of suspension (NOS) report. The NOS notified petitioner that he was charged with escape from furlough and that he would receive a hearing on the furlough violation no later than October 29, 2020. The next day, October 28, he was arraigned on the failure-to-register charge. The court imposed a $5000 bond, which petitioner did not post. Petitioner argues that he could have posted the bond but chose not to because he was also held on the escape-from-furlough violation.^[3]

¶ 6. October 30 came and went without a hearing. Petitioner did not receive any communication from DOC regarding the lack of a hearing. On November 18, petitioner learned that he would be case staffed the next day.^[4] Petitioner filed a grievance objecting to the case staffing given that he had not yet received a furlough violation hearing. DOC told him he was not being held on a furlough violation.

¶ 7. The case staffing went forward on November 19. As a sanction, DOC placed petitioner on "furlough interrupt" for one year and, on November 23, transferred him to a different facility to serve the one-year interrupt.

¶ 8. On February 17, 2021, DOC sent petitioner a new NOS charging him with "escaping" and disclosed that the date of the incident was-February 17, 2021. This NOS, issued nearly four months after petitioner's arrest, represented that the furlough violation hearing would

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occur no later than February 20. Also on February 17, DOC provided a notice of hearing form to petitioner, informing him of a hearing on February 23 at 1:30 p.m. Again, the hearing date came and went with no communication from DOC.

¶ 9. The hearing finally occurred on February 24. Petitioner received no written notice that the hearing would take place that day. The hearing officer was unaware of the October NOS and the October notice of hearing form. Petitioner provided the officer with copies of both documents. Petitioner raised the four-month delay at the hearing. The hearing officer refused to consider the delay or any due process arguments. The officer returned from a ninety-minute off-the-record deliberation with a supervisor, found petitioner guilty of the furlough violation, and referred petitioner for case staffing. Petitioner appealed this decision to the district manager on the same day but received no immediate response.

¶ 10. Petitioner was case staffed for a second time on March 24, 2021, and again he was not informed of the case staffing. The March 24 case staffing affirmed the one-year furlough interrupt as a sanction and added that he be transferred to transitional housing at the end of the interrupt.

¶ 11. Petitioner pled guilty to the failure-to-register charge on March 26, 2021 and was sentenced to a term of zero to one year, to be served consecutive to his current sentence. On March 12, before the final case staffing, petitioner filed a petition for habeas corpus in the Rutland Civil Division.

¶ 12. The State moved to dismiss the petition arguing that 28 V.S.A. § 724, the statute providing the terms and conditions of community-reentry furlough, governed petitioner's appeal, that petitioner's delayed hearing was not grounds for release under a petition for habeas corpus, and that petitioner did not exhaust his administrative remedies. Petitioner countered that § 724 only provides for de novo review of furlough revocation decisions on the grounds that DOC "abused its discretion in imposing a furlough revocation or interruption for 90 days or longer." 28 V.S.A. § 724(c).

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He explained that in his view DOC does not have the "discretion" to deny a furloughee due process, and that § 724 is therefore not an appropriate avenue to address petitioner's due process claim. Petitioner argued that he did exhaust his administrative remedies when he raised the four-month delay at the February 24 hearing and appealed DOC's determination to the district supervisor the same day. Finally, petitioner argued that remaining on community-reentry furlough implicates a liberty interest, and that he was prejudiced by DOC's procedures subsequent to his arrest.

¶ 13. The civil division granted the State's motion to dismiss. The court concluded that 28 V.S.A. § 724 provided an alternative avenue for...