Editor’s note: This piece from the SCOV Law Blog is by Elizabeth Kruska.
In re Towne, 2018 VT 5
Like certain cheeses and fine wines, some appellate opinions get better with age. I won’t take a position on whether this is such an opinion, but it did seem like we ought to get to it, since it’s been patiently waiting since 2018.
Without belaboring the first 12 paragraphs of this opinion, it ought to be noted that the petitioner in this case, Edwin Towne Jr., was convicted of first-degree murder in 1989. He then appealed and then filed a petition for post-conviction relief. Through many years of dismissals and filings, Mr. Towne filed a total of 11 post-conviction relief (PCR) petitions.
This appeal concerns the 10th and 11th petitions. In Number 10, the petitioner raised a number of issues having to do with his original trial and PCR counsel’s performance, as well as issues related to conflicts of interest. The State filed a motion to dismiss, arguing it was successive, meaning it raised previously-raised and dismissed issues, abusive of the process, and didn’t state a claim that could be resolved in a PCR. Petitioner had appointed counsel, who did not respond to the motion.
The court granted this motion to dismiss. It noted that even with respect to the claims of ineffective assistance of trial counsel, that there was legal ability to overcome the claims of successiveness. But since Petitioner couldn’t establish that the initial ruling in the case was in error, there was nowhere to go with the matter and it was properly dismissed. The court also ruled that with respect to ineffective assistance of appellate counsel, Petitioner couldn’t establish that he was prejudiced by an alleged conflict. Lastly, the court concluded that his claim of ineffective assistance by PCR counsel was outside the scope of the statute.
About a year and a half later, Petitioner filed PCR Number 11. Here he elaborated on a conflict of interest his trial counsel had. It appears the trial lawyer revealed that he had previously represented a witness in the original murder case, and that Petitioner told his lawyer he (Petitioner) believed the witness was the person who committed the murder. The State filed a motion to dismiss this one, as well. Mr. Towne’s attorney did not respond. The court dismissed the petition indicating that this all could have been raised before, and also that even with this information there was no showing the trial or sentencing would have gone differently.
Now, on appeal, Petitioner raises lots of arguments with respect to PCR Number 10, as well as to PCR Number 11.
Post-conviction relief cases are purely creatures of statute, and provide an avenue for a prisoner to challenge the legality of their confinement and guard against illegal restraints on liberty.
But people filing PCRs don’t get to do it repeatedly and frivolously. If a petitioner files a PCR and raises issues A, B, and C, they don’t get to go back and relitigate those issues again in a successive filing if the issues were disposed of on the merits. There may be times when a court entertains a successive filing if its consideration meets “the ends of justice.” However, it’s a fairly rare circumstance that the court will entertain this. Ultimately, it’s up to the trial court’s discretion to decide if it would entertain an “ends of justice” petition. On appeal SCOV is quite deferential to the trial court.
This is related to Abuse of the Writ. This comes up if a petitioner files a second or subsequent petition, raising claims that appear for the first time. So, if a petitioner files once, alleging A, B, and C, and that gets decided, but then later raises D, E, and F, that could look like Abuse of the Writ. The burden is then on the petitioner to show why this couldn’t have been raised earlier. Sometimes other things aren’t known at the time of the first petition. The petitioner has to show actual prejudice that created “errors of constitutional dimensions” in the trial.
SCOV hasn’t yet determined a review standard for Abuse of the Writ. Courts often look to other courts to help decide things like this. Unhelpfully, there’s a split across federal appellate courts about what standard to use. And SCOV decides to keep us in suspense, because it decides not to use this case to pick a standard because it has another reason to affirm the trial court(s). And really, it’s nice to keep a little mystery. Sort of like how I did there, and buried deep in this paragraph that SCOV affirms.
Now we can get in to some interesting legal stuff. Petitioner wanted SCOV to follow the lead of the Big Court in Martinez v. Ryan and adapt it for state court use. Boiled way down, Martinez allows petitioners to file federal habeas corpus proceedings to attack the effectiveness of their representation in their state PCRs. And importantly, it allowed petitioners in some circumstances to attack the underlying issue of trial counsel ineffectiveness in the context of this federal habeas proceeding. Essentially, if a petitioner has ineffective PCR representation in litigating whether his or her trial counsel was ineffective, the petitioner needs to be able to raise all of that somewhere somehow.
To even make a Martinez claim, the petitioner has to show that the initial ineffective assistance of counsel case was substantial and had some legs under the appropriate standard. From there, there’s got to be a showing that the PCR counsel was ineffective in litigating the underlying claim.
The petitioner in this case wanted SCOV to adopt an adaptation of Martinez for the state level so that a PCR petitioner could file subsequent petitions without running into the successive filing or Abuse of the Writ problems described above.
SCOV calls in the special team and punts. SCOV reasons that Petitioner’s claims didn’t have legs to go forward, so there’s no reason to create a new state-based rule under Martinez.
First of all, by the time the appeal for this particular PCR rolled around, Petitioner had already raised an ineffective assistance claim twice, and both times it was disposed on the merits. To get to use a Martinez rule, the petitioner would have to show that there was merit to the ineffective assistance of trial counsel claim. Because it had already been disposed of and shown that there wasn’t merit to the claim, he doesn’t get to try to re-attack it by saying his PCR counsel was ineffective.
Another part of this is not just showing that the lawyer did something ineffective, but that there was prejudice to the petitioner as a result of that action or inaction. He’d have to have shown that but for the unprofessional error by the lawyer that there would have been a different outcome. SCOV does not believe the petitioner could show that here.
Petitioner’s issue is that his trial counsel didn’t contact a potential alibi witness. If there’s anything we’ve learned in the last few years due to a particular wildly popular podcast (which I have used in connection with teaching criminal procedure and thus have listened to approximately 28 times), is that if you are a defense lawyer you Always. Call. A. Potential. Alibi. Witness. On. The. Telephone. Just call them. Call them and find out what they have to say. Take some notes. Write it down. Make a memo. Tell your client you called.
Because you know what? Even if the alibi witness doesn’t pan out or isn’t credible or isn’t really an alibi witness, you don’t know if you don’t ask. And if the alibi witness doesn’t fit with the theory of the case or could potentially do harm to a case the lawyer doesn’t have to call that person to testify as long as it fits in with the lawyer’s legal strategy. And as long as there’s a strategy and a reason, it may not be ineffective assistance of counsel.
*climbs off soapbox*
Getting back to the issue in this case, there wasn’t any evidence to suggest that even if the trial lawyer had called the suggested alibi witness that the outcome would have been different. Simply saying, “Steve will say I was with him” isn’t enough. If Steve wrote an affidavit saying, “I swear I was with petitioner. We [whatever they did over whatever the time frame in whatever location thus providing a good alibi]” or whatever is relevant, that might help. But there wasn’t anything else to help back up the petitioner’s story to show that had his lawyer called this witness that it would have caused the trial to end differently. So that’s the end of that.
Guess what – there’s more!
Petitioner also argues that his attorney in his initial direct appeal was ineffective due to a conflict of interest. SCOV says this “does not have substantial merit.” It appears Petitioner’s trial counsel was A. Petitioner also says that A represented him on his direct appeal. While the appeal was pending, he filed a PCR alleging ineffective assistance of counsel at the trial level by A. Therefore, he argues that the appellate representation was necessarily ineffective because he and A were adverse to one another. However, the court records show that B and C were actually the appellate attorneys. A was present and sat at counsel table during the argument, but this isn’t sufficient to show a conflict that would create an ineffectiveness problem.
SCOV points out the substantive conflict having to do with the alibi issue was only raised for the first time in PCR Number Nine, which was dismissed as being successive to earlier filings. And because he can’t show actual prejudice, this can’t go forward.
