Fellows v. Baker

Decision Date10 March 2021
Docket NumberCivil Action 2:20-cv-139-wks-jmc
CourtU.S. District Court — District of Vermont
PartiesFrank W. Fellows, Petitioner, v. James Baker and Thomas J. Donovan, Jr., Respondents.

(Docs 4, 5, 10)

REPORT AND RECOMMENDATION

John M. Conroy, United States Magistrate Judge.

Petitioner Frank W. Fellows, a prisoner proceeding pro se, has filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 to vacate his prior conviction in the Vermont Superior Court for sexual assault and lewd and lascivious conduct, in violation of 13 V.S.A. §§ 3252(e)(1) and 2602. (Doc. 4.) Fellows asserts various errors and rights violations regarding his underlying criminal trial, his postconviction-relief (PCR) proceedings in Vermont state court, and execution of his sentence by the Vermont Department of Corrections (DOC). (Id.) Presently before the court is a Motion to Dismiss filed by the State of Vermont (hereafter referred to as Respondent) on behalf of Respondents James Baker and Thomas J. Donovan Jr., wherein Respondent argues that Fellows's claims are barred by his failure to exhaust state judicial remedies procedural default, and the statute of limitations; or are otherwise without merit. (Doc. 5.) Fellows has filed two memoranda in opposition to Respondent's Motion. (Docs 11, 12.)

For the reasons explained below, I recommend that Respondent's Motion to Dismiss (Doc. 5) be GRANTED, and that Fellows's Petition (Doc. 4) be DISMISSED. Given these recommendations, Fellows's Motion to Reconsider this court's denial of his request for appointed counsel (Doc. 10) should be DENIED as moot.

Factual and Procedural Background
I. Criminal Trial and Conviction[1]

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. At the trial, the State presented the testimony of 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. State v. Fellows, 2013 VT 45, ¶ 8, 194 Vt. 77, 76 A.3d 608. Fellows called his two sisters as witnesses. Id.

Fellows did not attend the second and third days of trial. In re Fellows, No. 2018-130, 2018 WL 4835000, at *1 (Vt. Sept. 28, 2018). 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. Fellows, 2013 VT 45, ¶ 9.

II. Direct Appeal

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, ” id. ¶ 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. ¶ 21. On June 28, 2013, the Vermont Supreme Court affirmed Fellows's conviction. Id. ¶ 1.

III. First PCR Petition

On November 5, 2013, Fellows filed his first PCR Petition in state court, arguing that he received ineffective assistance of counsel from his trial attorney. In June, July, and August 2017, the Essex Civil Division of the Vermont Superior Court held four days of evidentiary hearings in connection with the PCR Petition. In re Fellows, 2018 WL 4835000, at *1. Fellows was represented by counsel, and both Fellows and the State presented expert testimony. Id. “In a lengthy and detailed decision, ” the superior court concluded that Fellows had not demonstrated that his trial counsel was ineffective and denied Fellows's request to amend his PCR Petition to include allegations of prosecutorial misconduct. Id.

On September 28, 2018, the Vermont Supreme Court affirmed. Id. The court acknowledged that Fellows's pro se appellate brief “allege[d] dozens of errors in the PCR proceedings, ” but denied those claims because most of them “were not raised below, and [Fellows] provide[d] little legal or factual support for any of the alleged errors.” Id. at *2. With regard to the eight claims of ineffective assistance of counsel supported by expert testimony, the court “discern[ed] no basis to disturb the [superior] court's denial of post[]conviction relief.” Id. Specifically, the court affirmed the superior court's finding that Fellows had directed the defense strategy and that trial counsel's strategic options were limited, given Fellows's admission to police that the complainant was credible, his equivocation as to whether the charged acts had occurred, and his failure to appear at trial after the first day. Id.

The court further found that trial counsel was not ineffective for: (1) failing to challenge the admission of Fellows's police interview; (2) failing to contest the medical testimony of the nurse practitioner who examined the victim shortly after the incident; (3) declining to hire a forensic medical expert to counter the nurse practitioner's testimony; (4) failing to file a motion in limine to exclude evidence of Fellows's sexual relationship with the complainant's mother when the mother was 14 years old; (5) acknowledging that relationship in his opening statement to blunt the State's anticipated use of the evidence; (6) failing to call additional character witnesses; or (7) failing to object to the continuation of the trial in Fellows's absence (in fact, the record showed that trial counsel did object, but the trial court overruled the objection). Id. at *2-3. Finally, the court held that the trial court did not err in its response to the jurors' request, after they retired to deliberate, to see certain items of evidence, noting that “there was neither an objection at trial nor an argument at the PCR proceeding concerning this matter.” Id. at *3.

IV. First § 2254 Federal Habeas Corpus Petition

On October 2, 2017, while his first PCR Petition was pending before the superior court, Fellows filed a Petition for Writ of Habeas Corpus in this court pursuant to 28 U.S.C. § 2254. See Fellows, 2018 WL 1157788, at *3. Therein, Fellows asserted nine grounds for relief, which the court summarized as follows:

(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.

Fellows v. Vermont, Case No. 5:17-cv-187, 2018 WL 1951156, at *2 (D. Vt. Apr. 25, 2018). The court concluded that Fellows's claims under the Vermont Public Defender Act and regarding the ineffectiveness of his PCR attorney-i.e., the claims numbered (4) and (9) above-were not cognizable under § 2254 and dismissed them with prejudice. Id. at *4.

As to the remaining claims, the court found that all but one were barred by the statute of limitations. Specifically, the court determined that “the one-year limitations period began to run on September 26, 2013-90 days after the expiration of the time to seek direct review by writ of certiorari of the Vermont Supreme Court's June 28, 2013 decision in State v. Fellows, 2013 VT 45.” Id. at *5. For claims raised in Fellows's then-pending PCR Petition in state court, the court found that the limitations period was tolled under 28 U.S.C. § 2244(d)(2) from November 5, 2013 through the duration of those pending PCR proceedings. Id. However, for claims not raised in Fellows's then-pending PCR Petition, the statute of limitations expired on September 26, 2014, well before Fellows filed his federal Habeas Petition on October 2, 2017. Accordingly, any claims not raised in Fellows's first PCR Petition were time-barred.

Applying this framework, this court concluded that claims (1)-(3) and (6)-(8) were barred by the statute of limitations. Id. Claim (5) regarding the ineffectiveness of Fellows's trial counsel was tolled, but because the PCR Petition was still pending before the state court at that time, it was unexhausted. Thus, the court dismissed claim (5) without prejudice pending the resolution of Fellows's first PCR Petition. Id.

V. Second PCR Petition

On June 13, 2018, following this court's dismissal of his first federal Habeas Petition but before the Vermont Supreme Court had affirmed the denial of his first PCR Petition, Fellows filed a second PCR Petition, proceeding pro se. See In re Fellows, No....

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