Babson v. State, No. 262-7-11 Bncv (Hayes, J., Jan. 6, 2012)

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                                                    STATE OF VERMONT

SUPERIOR COURT                                                                             CIVIL DIVISION
Bennington Unit                                                                            Docket No. 262-7-11 Bncv

                                                                         │
Barry S. Babson,                                                         │
 Petitioner                                                              │
                                                                         │
 v.                                                                      │
                                                                         │
State of Vermont,                                                        │
 Respondent                                                              │
                                                                         │

                                                      DISMISSAL ORDER

           A hearing was held on January 5, 2012, on the plaintiff’s motion for the

appointment of counsel, filed on December 9, 2011. The petitioner appeared by

telephone, Attorney Seth Lipschutz appeared for the Prisoner’s Rights Office, and

Deputy State’s Attorney Tina Rainville appeared for the Respondent.

           In the course of arguments by the two attorneys, both counsel agreed that in the

petitioner’s prior PCR case, Docket No. 471-12-07 Bncv, after a contested hearing, Judge

Wesley issued an order denying petitioner’s request for relief. His judgment order was

issued on 2/23/11. Petitioner’s attorney in that case filed notice of appeal from this

order on 3/28/11. The appeal was dismissed by the Supreme Court as untimely on

4/22/11.

           The current PCR petition is based on the petitioner’s claim that his attorney in

the first PCR provided ineffective assistance of counsel in connection with that petition

by filing his notice of appeal out of time. The State argued at the hearing on petitioner’s

request for counsel that the petitioner should have appointed counsel in this case, in
order to investigate the causes of his prior counsel’s error, and to help petitioner in

seeking relief from that error. Attorney Lipschutz argued that there is no constitutional

right to counsel in a PCR proceeding, and that there cannot therefore be any valid claim

of ineffective assistance of counsel in a PCR proceeding. He agreed that prior counsel

erred, and that the petitioner was prejudiced by that error, in that he was denied any

opportunity to appeal from the denial of his PCR petition in 471-12-07 Bncv. He advised

the court that he and his office would attempt to assist the petitioner in seeking relief in

that docket, perhaps under V.R.C.P. 60(b), in order to try to reinstate the petitioner’s

right to appeal from that decision. He argued, however, that in this new case, the

petitioner’s PCR petition did not state a valid legal claim, and that petitioner was

therefore not entitled to counsel.

       The petitioner did not disagree with any of the factual allegations made by the

two attorneys who appeared in court. He also agreed that the basis for this petition is

that his prior PCR attorney erred and provided ineffective assistance of counsel by filing

his notice of appeal too late, thus denying the petitioner the right to appeal the denial

of his prior PCR petition.

       The court stated on the record that because of these stipulated facts, the court

believed that it could rule as a matter of law not only on the petitioner’s request for

counsel, but on the petition itself, and outlined the terms of the likely ruling, which are

set forth below. Neither counsel nor the petitioner objected to this approach.

       The court concludes that the stipulated facts demonstrate that petitioner’s prior

PCR counsel’s failure to file a timely notice of appeal in fact would amount to per se


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ineffective assistance of counsel, if the petitioner had a right to make such a claim. The

failure to file a timely notice of appeal is the kind of error that demonstrates a “lack of

care . . . so apparent that only common knowledge and experience are needed to

comprehend it.” In re Grega, 2003 VT 77, ¶ 16, 175 Vt. 631 (citations omitted).

However, as Attorney Lipschutz argued in this case, there is no constitutional right to

counsel in a PCR case. A post-conviction relief proceeding is civil and statutory in

nature, and the constitutional protections for defendants in criminal proceedings do not

apply here. See: In re Bailey, 2009 VT 122, ¶ 9, 187 Vt. 176, 182; In re Chapman, 155 Vt.

163, 167 (1990). “The only requirement is that state procedures meet the general due

process requirements of fundamental fairness.” Chapman, 155 Vt. 167. The court

concludes that this subsequent PCR petition must be denied, therefore, for failure to

state a claim upon which relief can be granted. It is so ordered. This case is dismissed.

The court expresses no view on whether relief may be available in the other, now

closed, PCR docket.

       Dated at Bennington, this 6th day of January, 2012.




                                              _____                               _
                                              Katherine A. Hayes
                                              Superior Judge




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