Stewart, In re

Decision Date03 November 1981
Docket NumberNo. 405-80,405-80
Citation438 A.2d 1106,140 Vt. 351
CourtVermont Supreme Court
PartiesIn re Gordon A. STEWART.

Andrew B. Crane, Defender Gen., Stephen W. Gould, Montpelier, for petitioner; Gene Condon, Law Clerk, on the brief.

John J. Easton, Jr., Atty. Gen., and Susan R. Harritt, Asst. Atty. Gen., Montpelier, for respondent.

Before BARNEY, C. J., BILLINGS, HILL and UNDERWOOD, JJ., and LARROW, J. (Ret.), Specially Assigned.

HILL, Justice.

The appellant, Gordon Stewart, filed a petition for post-conviction relief in the Windsor Superior Court. The lower court dismissed the petition for lack of jurisdiction. We reverse.


The appellant was convicted of seven felonies in Vermont between 1960 and 1969. He completed serving all of the sentences for those convictions in 1971, and was released from Vermont parole in 1974. In 1973 the appellant was convicted of a narcotics charge in Colorado. In 1976, he was again convicted in Colorado of a narcotics charge. The Colorado court imposed a thirteen to fifteen year sentence which he is now serving in Colorado.

The 1977 the appellant filed a challenge to his Vermont convictions on a variety of state and federal constitutional grounds. On the State's motion to dismiss, the trial court held that 12 V.S.A. § 3952 provided habeas jurisdiction over the complaint. In response to the State's motion for reconsideration, the lower court reversed itself, and dismissed the appellant's petition. It held that habeas was unavailable, as the appellant would not be entitled to immediate release from Colorado prison upon vacation of the Vermont convictions, noting that a Vermont habeas writ would be unenforceable in Colorado. The court also denied jurisdiction under 13 V.S.A. § 7131, holding that the post-conviction relief statute only afforded relief to individuals incarcerated under Vermont sentences. Finally, the trial court said that laches provided an alternative ground for dismissal of the petition.

The parties to this appeal stipulated that the Vermont convictions directly affected Mr. Stewart's sentencing by causing the Colorado court to impose a harsher sentence and precluding the appellant from applying for parole. They also stipulated that the appellant would be resentenced if the Vermont convictions are vacated.

Although the appellant now concedes that habeas is unavailable as a jurisdictional basis for his petition, he urges us to reverse the lower court on two alternative grounds. First, he asserts that he meets the jurisdictional requirements of 13 V.S.A. § 7131. Second, he argues that coram nobis is available to govern his petition. 1 The appellant also challenges the applicability of laches to his petition.


The Vermont Legislature first provided a remedy for illegal restraint or imprisonment in 1787. See 1787 Vermont Statutes at 31-32 (now codified at 12 V.S.A. § 3951). Today the primary mechanism for post-conviction relief is 13 V.S.A. § 7131, which is a "special statutory remedy in the nature of habeas corpus." In re Clark, 127 Vt. 555, 557, 255 A.2d 178, 180 (1969). It is patterned after the federal post-conviction relief statute, 28 U.S.C. § 2255 (1976). See Shequin v. Smith, 129 Vt. 578, 581, 285 A.2d 708, 710 (1971). The statute permits a collateral attack upon Vermont convictions or sentences which are defective under the Constitution, statutory law, or "otherwise subject to collateral attack." 13 V.S.A. § 7131.

The jurisdictional limitation on this broad remedy is that a petitioner must be "in custody" to mount an attack. This appeal presents the question of what conditions constitute "in custody" and are therefore remediable under the post-conviction statute.

Courts have divided over this issue. Some states have adopted a restrictive view of "in custody," and have limited post-conviction review to individuals actually incarcerated in the forum state's prisons. See Jessen v. State, 95 Wis.2d 207, 211-12, 290 N.W.2d 685, 687 (1980); Lalla v. State, 463 S.W.2d 797, 801 (Mo.1971); Johnson v. State, 4 Kan.App.2d 573, 608 P.2d 1044, 1045 (1980). Other jurisdictions, faced with cases similar to the appellant's, have held that the impact of a prior conviction on a sentence satisfies the "in custody" requirement, and subjects the prior conviction to collateral attack. See Smith v. State, 94 Idaho 469, 471, 491 P.2d 733, 734-35 (1971); State v. Reynolds, 238 So.2d 598, 600 (Fla.1970); State v. Urbano, 105 Ariz. 13, 14, 457 P.2d 343, 344 (1969)(en banc), cert. denied, 397 U.S. 948, 90 S.Ct. 968, 25 L.Ed.2d 129 (1970); Green v. State, 237 A.2d 409, 411 (Me.1968). Cf. United States v. Condit, 621 F.2d 1096, 1097-98 (10th Cir. 1980) (federal prisoner in California may use 28 U.S.C. § 2255 to attack Oklahoma sentence which was predicate for parole revocation by California court).

Like its counterpart in the federal system, our post-conviction relief has expanded in two distinct and important dimensions. First, the species of errors subject to collateral attack have increased. Habeas corpus formerly protected against only "jurisdictional" defects in criminal judgments. See, e.g., In re Greenough, 116 Vt. 277, 282, 75 A.2d 569, 573 (1950); Developments in the Law-Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1044-55 (1970). Relief is now available for a variety of errors that affect the validity of guilty verdicts. See In re Dussault, 128 Vt. 135, 136-37, 259 A.2d 776, 777 (1969); In re Provencher, 127 Vt. 558, 560, 255 A.2d 180, 182 (1969). Second, the "Great Writ" has expanded to encompass "a wide range (of relief), ... including remedies short of full release, (and) the scope of review itself is likewise broad." Sherwin v. Hogan, 136 Vt. 606, 608, 401 A.2d 895, 896 (1979).

The expansion of habeas relief has largely occurred under the guise of modern post-conviction relief statutes, such as 13 V.S.A. § 7131 and 28 U.S.C. § 2255 (1976). These statutes were enacted to simplify the often cumbersome procedures associated with habeas corpus. Section 2255 was designed to distribute the federal habeas caseload evenly among the federal courts and to provide a more convenient forum for obtaining relevant records and witnesses. The statute achieved these purposes by vesting jurisdiction in the sentencing district, rather than the district of incarceration. See United States v. Hayman, 342 U.S. 205, 210-19, 72 S.Ct. 263, 267-72, 96 L.Ed. 232 (1952); Developments, supra, 83 Harv.L.Rev. at 1062. Similarly, 13 V.S.A. § 7131 apportioned Vermont's habeas cases among the trial courts. See generally In re Shuttle, 127 Vt. 602, 603, 256 A.2d 28, 28 (1969). Thus, the modern statutes, including 13 V.S.A. § 7131, are venue devices, and are not designed to affect the availability of habeas relief. See United States v. Addonizio, 442 U.S. 178, 185, 99 S.Ct. 2235, 2240, 60 L.Ed.2d 805 (1979); Davis v. United States, 417 U.S. 333, 343-44, 94 S.Ct. 2298, 2303-04, 41 L.Ed.2d 109 (1974).

The State argues that the "in custody" phrase should be literally construed to bar relief in this case. This contention fails to account for the limited venue functions of modern post-conviction relief statutes. The statute mandates that an individual be "in custody under sentence of a court," 13 V.S.A. § 7131; "custody in Vermont" is not mentioned. Furthermore, as Justice Stewart wrote for the United States Supreme Court concerning the federal statute: "microscopic analysis of § 2255 surely shows that the statutory language is somewhat lacking in precision." Davis v. United States, supra, 417 U.S. at 343, 94 S.Ct. at 2303. Thus the specific language of 13 V.S.A. § 7131 sheds little light on the jurisdictional requirements of "in custody."

The State's position is further undermined by Vermont precedent. Our decisions have explicitly extended "in custody" beyond incarceration. This Court has previously held that: "post conviction petitions require consideration even where release from confinement is not one of the possible dispositions under the issues presented." In re Bashaw, 129 Vt. 393, 395, 278 A.2d 752, 754 (1971)(construing 13 V.S.A. § 7131). On two occasions we have stated that an individual need not be incarcerated to satisfy the "in custody" requirement of 13 V.S.A. § 7131. In State v. McMann, 133 Vt. 288, 336 A.2d 190 (1975), the Court said in dicta:

Nor would (post-conviction) relief be precluded, we feel, by the requirement of 13 V.S.A. § 7131 that the respondent be "in custody." His "permanent furlough" to New Hampshire authorities, a form of parole, would, since it involves a curtailment of liberty, constitute a form of "custody."

Id. at 291-92, 336 A.2d at 193.

In Magoon v. Smith, 130 Vt. 603, 298 A.2d 820 (1972), we reached the merits of an attack on a murder conviction by a parolee. The Court noted that habeas jurisdiction was unavailable, as the petitioner was not then incarcerated. Id. at 603-04, 298 A.2d at 821. The Court then held:

(B)ecause he is in at least technical custody under sentence of a court, we will treat the matter as if the plaintiff had brought his petition under the postconviction relief statute, which is, substantively, a special statutory remedy in the nature of habeas corpus, applicable to those "in custody under sentence of a court."

Id. at 604, 298 A.2d at 821. Thus, our decisions have explicitly extended "in custody" beyond incarceration.

Our prior interpretations of "in custody" are in harmony with the federal court's extension of post-conviction and habeas relief to individuals attacking consecutive sentences not yet served, Peyton v. Rowe, 391 U.S. 54, 64-67, 88 S.Ct. 1549, 1554-56, 20 L.Ed.2d 426 (1968); to federal parolees, United States v. Kriz, 621 F.2d 306, 308 n.2 (8th Cir. 1980); and, to parolees who were released during the pendency of their petitions. Addison v. United States, 589 F.2d 252, 252-53 (5th Cir. 1979). These extensions of "in custody" have enabled post-conviction relief to respond to the restrictions on individual...

To continue reading

Request your trial
41 cases
  • In re Carter
    • United States
    • Vermont Supreme Court
    • February 27, 2004
    ...132 Vt. 597, 600, 326 A.2d 166, 168 (1974). The prohibition on deliberate bypass arises from this principle. See In re Stewart, 140 Vt. 351, 361, 438 A.2d 1106, 1110 (1981). The prohibition was described in Where the issues raised in a petition for post-conviction relief were contested at t......
  • In re Carter, No. 01-502
    • United States
    • Vermont Supreme Court
    • February 27, 2004
    ...132 Vt. 597, 600, 326 A.2d 166, 168 (1974). The prohibition on deliberate bypass arises from this principle. See In re Stewart, 140 Vt. 351, 361, 438 A.2d 1106, 1110 (1981). The prohibition was described in Where the issues raised in a petition for post-conviction relief were contested at t......
  • Rumierz v. Gonzales
    • United States
    • U.S. Court of Appeals — First Circuit
    • August 3, 2006
    ...not properly file a motion for post-conviction relief under the Vermont statute is plainly contrary to Vermont law. See In re Stewart, 140 Vt. 351, 438 A.2d 1106 (1981). 25. While I appreciate the majority's concern that some petitioners may seek to avoid or delay deportation by taking adva......
  • Lopez v. State
    • United States
    • Court of Special Appeals of Maryland
    • May 10, 2012
    ...did not bar post-conviction claim asserting [43 A.3d 1142]that petitioner's guilty plea was constitutionally infirm); In re Stewart, 140 Vt. 351, 438 A.2d 1106, 1110 (1981) (declining to apply laches where post-conviction statute provided that a petition may be filed at any time); cf. In re......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT