Liberty, In re, 88-571

Decision Date26 February 1990
Docket NumberNo. 88-571,88-571
Citation572 A.2d 1381,154 Vt. 643
PartiesIn re Richard LIBERTY.
CourtVermont Supreme Court

Before ALLEN, C.J., PECK and GIBSON, JJ., and BARNEY, C.J. (Ret.), Specially Assigned.

Defendant appeals the trial court's denial of his petition for a writ of habeas corpus. We affirm.

Defendant filed a petition for a writ of habeas corpus alleging that a 1973 DWI conviction was constitutionally flawed because of a lack of voluntary and knowing waiver of a jury trial, production of evidence, confrontation of witnesses and effective counsel. In 1986, defendant was convicted of DWI, fourth offense. His 1973 conviction was considered in determining the length of his license suspension. His license was suspended for six years; if the 1973 conviction were overturned, the suspension would be for only three years. Defendant was not represented by counsel in 1973, and submitted an affidavit that he has "no present recollection of waiving [his] rights to a jury trial, to compel the production of evidence, to confront witnesses and to an effective attorney." The district court could not locate a transcript of the 1973 proceedings.

A motion for post-conviction relief requires the moving party to establish, by a preponderance of the evidence, that fundamental errors rendered his conviction defective. In re Mecier, 143 Vt. 23, 26, 460 A.2d 472, 474 (1983). The petitioner must further be "in custody" under the allegedly invalid sentence, or the court lacks jurisdiction to consider the matter. 13 V.S.A. § 7131; In re Stewart, 140 Vt. 351, 355, 438 A.2d 1106, 1107 (1981). Petitioner need not be actually incarcerated in order to meet the "custody" requirement. In re Smith, 144 Vt. 494, 495, 479 A.2d 152, 153 (1984). Courts considering the question have delineated the following "useful indicia" of custody: the petitioner's conduct must be to some degree under the supervision or direction of judicial officers; or the petitioner may face the possibility of imminent incarceration without a formal trial and criminal conviction, creating a restraint on liberty sufficient to constitute custody. Fleming v. Abrams, 522 F.Supp. 1203, 1205 (S.D.N.Y.1981), aff'd, 697 F.2d 290 (2d Cir.1982). At a minimum, the combination of such incarceration with even minimum supervision could constitute custody. Id.

Because the defendant is not in custody, his petition fails on jurisdictional grounds. "Every collateral consequence associated with a conviction will not trigger...

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12 cases
  • In re D.C.
    • United States
    • Vermont Supreme Court
    • June 24, 2016
    ... ... These are not extravagant oppressions. Behind them may be discerned the unceasing contest between personal liberty and government oppression. It is no accident that habeas corpus has time and again played a central role in national crises, wherein the claims of ... ...
  • In re Combs
    • United States
    • Vermont Supreme Court
    • July 6, 2011
    ... ... In re Liberty, 154 Vt. 643, 644, 572 A.2d 1381, 1382 (1990) (mem.). Vermont uses a two-part standard for evaluating an ineffective assistance of counsel claima ... ...
  • State v. Yates, 97-191.
    • United States
    • Vermont Supreme Court
    • January 8, 1999
    ... ... that defendant was "in custody under sentence" because the conditions of his probation imposed significant restraints upon his personal liberty that were sufficient to constitute custody. We agree with the State that defendant was in custody. See State v. Wargo, 168 Vt. ___, ___, 719 A.2d ... ...
  • In re Grega
    • United States
    • Vermont Supreme Court
    • August 29, 2003
    ... ... has the substantial burden of proving "by a preponderance of the evidence, that fundamental errors rendered his conviction defective." In re Liberty, 154 Vt. 643, 644, 572 A.2d 1381, 1382 (1990) (mem.). On an appeal from a post-conviction relief decision, we review the court's findings by a ... ...
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