Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2013-399

                                        MARCH TERM, 2014

 Christopher Webb                                      }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Washington Unit,
    v.                                                 }    Civil Division
                                                       }
                                                       }
 Andrew Pallito, Charles E. Samuels, Jr.               }    DOCKET NO. 213-4-13 Wncv
 and Tamyra Jarvis                                     }

                                                            Trial Judge: Robert R. Bent

                          In the above-entitled cause, the Clerk will enter:

       Petitioner, an inmate committed to the custody of the Commissioner of Corrections,
appeals pro se from a superior court order dismissing his petition for a writ of habeas corpus. He
contends that the trial court erred in rejecting claims that his out-of-state confinement violated
provisions of the Vermont and U.S. Constitutions. We reverse and remand.

       Petitioner was convicted in Vermont of various felonies and sentenced to a term of
imprisonment of thirty to sixty-three years. At the request of the Department of Corrections, he
was transferred to a federal correctional facility in Florida.

        In April 2013, petitioner filed a pro se petition for writ of habeas corpus, principally
alleging that: (1) his confinement in Florida violated the provision of the Vermont Constitution
providing “[t]hat no person shall be liable to be transported out of this state for trial for any
offense committed within the same,” Vt. Const. ch. I, art. 21; and (2) he was denied certain
rights and privileges in Florida that were afforded prisoners in Vermont, in violation of his equal
protection rights under the Fourteenth Amendment of the U.S. Constitution. Following a status
conference in late April 2013, the trial court dismissed the petition, finding no basis for the state
constitutional claim, but subsequently granted petitioner’s motion for reconsideration to address
the remaining equal protection claim. Thereafter, in July 2013, the court issued a written
decision reaffirming its earlier ruling and also finding no basis for the equal protection claim.
Accordingly, the court dismissed the petition and entered judgment in favor of defendants. This
appeal followed.

       Petitioner initially contends the court erred in dismissing the petition without holding a
hearing or issuing the writ in the first instance. The claim is without merit. See V.R.C.P. 80.4
(providing for hearing on habeas petition if “required,” and for dismissal on motion where
complaint fails to set forth a basis for the relief requested).

       Petitioner also renews his claim that Chapter I, Article 21 of the Vermont Constitution
prohibits his out-of-state confinement. We considered this constitutional provision in Daye v.
State, however, and specifically rejected the claim that it was designed as an “ ‘anti-
transportation’ clause to forbid the common law English practice of ‘banishment’ or exile of
prisoners.” 171 Vt. 475, 485 (2000). “Having determined independently to forbid the
transportation of persons out of state for trial,” we explained, “it is reasonable to assume that—
had they so desired—the framers could also have expressly prohibited the transportation of
prisoners out of state.” Id. at 485-86. We thus find no merit to the claim, and no basis to disturb
the court’s dismissal of this claim.1

         Petitioner also renews his claim that the Florida correctional facility’s denial of the same
visitation rights, rehabilitative programs, and housing opportunities offered to prisoners in
Vermont violates his equal protection rights. The State argues that habeas corpus relief is
unavailable on this basis for two reasons: first, petitioner does not state any claim that would
affect the length of his sentence or result in his immediate release; and second, petitioner is
entitled to be treated equally with similarly situated prisoners in Florida, not Vermont. The State
is certainly correct that the writ of habeas corpus is generally available only to a state prisoner
who is “challenging the fact or duration of his physical confinement itself,” and who is “seeking
immediate release or a speedier release from that confinement.” Preiser v. Rodriguez, 411 U.S.
475, 498 (1973), overruled on other grounds by Heck v. Humphrey, 512 U.S. 477, 482 (1994);
see also In re M.B., 2004 VT 58, ¶ 8, 177 Vt. 481 (mem.) (reaffirming rule that confined person
“has no right to a writ of habeas corpus unless he is entitled to immediate release, and the writ
will not issue unless he is presently restrained of his liberty without warrant of law” (emphasis
omitted)). We do not generally elevate form over substance in analyzing pro se pleadings,
however, and therefore will address petitioner’s complaint on its terms, as one seeking injunctive
relief from what he perceives as unequal treatment, regardless of its label.

        The State is also correct that we rejected a similar claim in Daye, but the argument there
was predicated on the Interstate Corrections Compact, while petitioner’s here is based on the
Equal Protection Clause. 171 Vt. at 481-82. More to the point is our more recent decision in
Nichols v. Hofmann, 2010 VT 36, 188 Vt. 1, where we addressed an inmate’s claim that the
Department of Corrections had violated the Equal Protection Clause by providing free stamps to
inmates housed in Vermont but not to inmates housed in out-of-state facilities. Although the
DOC argued, as here, “that plaintiffs are not similarly situated with in-state inmates solely on the
basis that they are house out of state,” we rejected the argument, “conclud[ing] that this fact,
alone, does not show that plaintiffs are not situated similarly with in-state inmates for purposes
of an entitlement to stamps.” Id. ¶ 18. In so holding, we stressed that procedurally the case, like
the matter before us here, was at the pleading stage—the trial court having granted the State’s
motion to dismiss—and thus we had little factual context to analyze the claim and the State’s
argument that it was unduly “onerous to have different policies on communication for different
inmates.” Id. ¶ 19. Accordingly, we concluded that the trial court had acted “prematurely” in
dismissing the claim, and remanded for further proceedings. Id.

        The same conclusion follows here. Although the allegations are different, involving
allegedly different visitation and programming afforded Vermont inmates in a Florida federal
correctional facility, we conclude that dismissal was premature, and therefore that that the matter


       1
          Petitioner’s assertion that the original provision in the 1777 Vermont Constitution
contained commas before and after the phrase “for trial” does not alter this conclusion.

                                                 2
must be remanded to allow further development of the factual record and informed analysis of
the claim.

         Petitioner also contends that his confinement out of state violates the federal RICO
statute, as well as treaty provisions prohibiting torture and cruel and inhumane punishment.
These claims were not raised with the trial court in the petition for writ of habeas corpus or the
motion for reconsideration which the trial court granted, and therefore were not preserved for
review on appeal. See State v. Ben-Mont Corp., 163 Vt. 53, 61 (1989) (“To properly preserve an
issue for appeal a party must present the issue with specific and clarity in a manner which gives
the trial court a fair opportunity to rule on it.”).2

        Petitioner also raises a host of additional claims, including summary assertions that
various state officials lacked authority to act without having taken an oath or affirmation of
office, and that defendant Pallito’s filings were invalid due to conflicts of interest. The record
does not disclose that these claims were properly raised in the trial court and preserved for
review on appeal.

          Reversed and remanded for further proceedings consistent with the views expressed
herein.

                                               BY THE COURT:


                                               _______________________________________
                                               Paul L. Reiber, Chief Justice

                                               _______________________________________
                                               John A. Dooley, Associate Justice

                                               _______________________________________
                                               Beth Robinson, Associate Justice




          2
           Although the torture claim was briefly asserted in a post-judgment “motion for arrest
of judgment,” this was insufficient to afford the court a full and fair opportunity to rule on it.
See In re Central Vt. Pub. Serv. Corp., 2006 VT 70, ¶ 12, 180 Vt. 563 (new claim raised in
footnote of motion for reconsideration was insufficient to fairly raise issue with Board and
preserve claim for review on appeal).
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