Carter v. Menard, No. 718-11-15 Wncv (Tomasi, J., April 13, 2016).
[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text
and the accompanying data included in the Vermont trial court opinion database is not guaranteed.]

                                        VERMONT SUPERIOR COURT

SUPERIOR COURT                                                                  CIVIL DIVISION
Washington Unit                                                                 Docket No. 718-11-15 Wncv

                                                                │
Bernard Carter,                                                 │
 Plaintiff,                                                     │
                                                                │
 v.                                                             │
                                                                │
Lisa Menard, Commissioner of the                                │
Vermont Department of Corrections,                              │
 Defendant.                                                     │
                                                                │

                         Opinion and Order on the State’s Motion to Dismiss

          Inmate Bernard Carter alleges that, together, the application to him of 13

V.S.A. § 5301(7), 28 V.S.A. § 725, and the Vermont Department of Corrections’

(DOC’s) Level C inmate classification directives has retroactively increased the

punishment for his offenses in violation of the Ex Post Facto Clause of the United

States Constitution, U.S. Const. art. I, § 10, by substantially prolonging his effective

ineligibility for parole. He seeks an injunction requiring the DOC to schedule his

programming in the manner it presumably would have prior to the adoption of

these statutes and directives. The State seeks dismissal, arguing that Mr. Carter

has failed to exhaust his administrative remedies and, in any event, has failed to

state a claim, Vt. R. Civ. P. 12(b)(6).

          1.        Exhaustion

          Prior to filing this case, Mr. Carter filed a previous case in this Court raising

due process and attempting to raise Ex Post Facto issues related to his Level C
classification. Carter v. Pallito, No. 177-3-14 Wncv (Vt. Super. Ct.). While he had

initiated an administrative grievance, he had not pursued it to completion. The

Court dismissed for failure to exhaust administrative remedies. Id., 2015 WL

5176807 (Jan. 5. 2015). Mr. Carter then neither appealed nor sought to exhaust his

administrative remedies. Instead, he filed this case, which is limited to his ex post

facto claim.

      Mr. Carter evidently was classified as Level C sometime in 2013. He did not

grieve his original Level C classification in a timely manner. As a result, the State

argues that this case can only fall under 42 U.S.C. § 1983; that such a claim also

must be grieved in a timely fashion or be forever barred; Mr. Carter failed to do so;

and this case must be dismissed. In response, Mr. Carter argues that, in this case

he seeks post-conviction review (PCR), 13 V.S.A. § 7131, or review in the nature of

habeas corpus, and thus the exhaustion doctrine does not apply. The State

responds that this cannot be a PCR because PCRs are limited to attacks on

sentences as imposed and Mr. Carter is not challenging his sentence. The State

also argues that this cannot be a habeas corpus action because Mr. Carter is not

seeking immediate release from custody.

      It is not fully apparent whether Vermont’s PCR statute is coextensive in

substance with a habeas corpus action or differs in some regards. Originally, the

PCR statute was adopted to simplify traditional habeas procedures and distribute




                                          2
cases throughout the court system differently than under habeas.1 In re Stewart,

140 Vt. 351, 356 (1981). PCR specifically applies, however, only where a plaintiff

under sentence:

      claims the right to be released upon the ground that the sentence was
      imposed in violation of the constitution or laws of the United States, or
      of the state of Vermont, or that the court was without jurisdiction to
      impose the sentence, or that the sentence was in excess of the
      maximum authorized by law, or is otherwise subject to collateral
      attack.

13 V.S.A. § 7131. As the State asserts, PCR actions rightly challenge the propriety

and legality of a defendant’s original criminal conviction or sentence. In this case,

Plaintiff is making no claim that falls beneath that statutory grant of jurisdiction.

As a result, the Court does not believe Section 7131 provides a vehicle for his suit.

      To the extent habeas corpus provides a broader remedy than the PCR

statute,2 Plaintiff also fails to set out a claim for habeas corpus relief. The core of a

habeas proceeding is an asserted right to immediate or, to some extent, speedier

release from custody. See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) (explaining

that claims for immediate or speedier release should be brought under the habeas

statute rather than under 42 U.S.C. § 1983). There is no such claim in this case.



1PCR cases are required to be filed in the county of conviction. 13 V.S.A. § 7131.
Habeas cases are required to be filed in the county of imprisonment. 12 V.S.A. §
3953. Since the State failed to assert improper venue as a basis for dismissal in its
original motion, the Court declines to consider the issue. Vt. R. Civ. P. 12(h).

2One Vermont case has noted that PCR is the “substantial equivalent of
conventional habeas corpus.” Shequin v. Smith, 129 Vt. 578, 582 (1971). If so, the
Court’s discussion of the habeas remedy would apply with equal force to Plaintiff’s
PCR claim.

                                            3
Mr. Carter’s claim is that his eligibility, or suitability, for parole has been

diminished. There is no allegation or inference that, if he were to succeed with his

ex post facto claim, that he would become entitled to a favorable parole decision.

The United States Supreme Court has made it plain that actual entitlement to a

speedier or an immediate release is the sine qua non of a habeas case. See

Wilkinson v. Dotson, 544 U.S. 74, 82 (2005) (challenges to parole eligibility and

suitability not properly characterized as habeas corpus actions because success does

not “necessarily demonstrate the invalidity of confinement or its duration”);

Williams v. Ward, 556 F.2d 1143, 1150 (2d Cir. 1977) (challenge to parole procedure

provides no basis for habeas corpus action because, though “relief sought by

petitioner may improve his chances for parole, the question of his release and of the

length of his confinement still lies within the sound discretion of the board”).

Accordingly, this case is more properly characterized as falling under 42 U.S.C.

§ 1983, rather than habeas corpus or PCR.

      The State correctly argues that Mr. Carter was obliged to exhaust his Section

1983 claim under the common law of Vermont and the Prison Litigation Reform Act

(PLRA), 42 U.S.C. § 1997e(a).3 Luck Bros. v. Agency of Transp., 2014 VT 59, ¶¶ 19–




3Mr. Carter’s supposition that there is no exhaustion requirement for habeas
corpus claims is wrong, though the consequence of the failure to exhaust an
available remedy (a so-called procedural default) in that setting would depend on
the “deliberate bypass” rule and would not necessarily lead to dismissal. See
Shuttle v. Patrissi, 158 Vt. 127, 131 (1992) (adopting the deliberate bypass rule of
Fay v. Noia, 372 U.S. 391 (1963)); see also 13 V.S.A. § 7136 (if PCR applicable, it
should be pursued before a habeas corpus action); Shequin v. Smith, 129 Vt. 578,
583 (1971) (same).
                                            4
20, 196 Vt. 584, 594 (describing common law exhaustion requirement); Johnson v.

Louisiana, 468 F.3d 278, 280 (5th Cir. 2006); Kellogg v. Neb. Dep’t of Corr. Servs.,

690 N.W.2d 574, 579 (Neb. 2005); Baker v. Rolnick, 110 P.3d 1284, 1288 (Ariz. Ct.

App. 2005); Richardson v. Comm'r of Corr., 863 A.2d 754, 756 & n.1 (Conn. App. Ct.

2005); Toney v. Briley, 813 N.E.2d 758, 760 (Ill. Ct. App. 2004) (all holding that

PLRA exhaustion requirement applies in state court).

      Mr. Carter failed to exhaust administrative remedies prior to filing this case.

While he continues to maintain that exhaustion is unnecessary, in response to the

State’s motion, he also initiated a new process that fully grieved the State’s

November 2015 decision to keep him at his Level C designation. See Exhibit A to

Plaintiff’s Opposition to Motion to Dismiss. The State nevertheless argues that,

having missed his opportunity to grieve his 2013 Level C designation, Mr. Carter is

forever barred from challenging it administratively and in this Court.

      The Court is not fully persuaded that the exhaustion doctrine properly

applies with the breadth urged by the State. Mr. Carter’s claim is not predicated on

an isolated event, a single Level C decision. Rather, he seeks prospective relief from

an alleged continuing violation of his constitutional rights: the perceived effect of

his Level C classification, and related DOC decisions, on his ultimate ability to be

paroled. The DOC’s grievance policy generally requires the inmate to initiate an

informal complaint prior to filing a formal complaint. The timing of the initial

complaint, which determines the timing of the subsequent steps, is contingent on

when the inmate discovered the “cause of the complaint.” Directive 320.01 ¶ 7.a.i.



                                           5
The State does not specify when it believes Mr. Carter should have discovered the

complex legal claim he advances in this case, and it is not clear how this provision

applies in the circumstance of an ongoing violation of a constitutional right that is

necessarily predicated on the DOC’s ongoing decision-making.

      The Court need not resolve those issues, however. Mr. Carter’s recent

grievance followed the State’s determination to continue his Level C designation

and likely should be seen as a new and separately grievable determination. Even if

Mr. Carter’s recent grievance was procedurally flawed because it was out of time,

the DOC appears to have accepted it and addressed it on the merits. Under the

PLRA, this is sufficient to demonstrate proper exhaustion. Hammett v. Cofield, 681

F.3d 945, 947 (8th Cir. 2012) (“all circuits that have addressed [this issue] have

concluded that the PLRA’s exhaustion requirement is satisfied if prison officials

decide a procedurally flawed grievance on the merits”).

      Mr. Carter should have exhausted his administrative remedies prior to filing

the first suit. He again should have done so before filing this suit. The State

correctly argues that dismissal of this pending action normally would follow from

that failure, even though he has recently exhausted his administrative remedies

regarding the November 2015 decision.

      In this unique instance, however, important constitutional rights are at

issue, Plaintiff has already exhausted his remedies with regard to the November

2015 determination, and the Court sees little to be gained from a dismissal and the

initiation of a new lawsuit. The issue of the November 2015 decision and grievance



                                           6
has been injected into this matter through the filings made by Plaintiff. The Court

views those filings as an implicit request to amend the complaint to add that claim

to this action. The Court approves such an amendment, and an amended complaint

shall be served on the State within 30 days.

      2.     Failure to State a Claim4

      The thrust of Mr. Carter’s ex post facto claim is that legislative changes and

his classification as Level C prevent him from engaging in programming, which

prevents him from participating in furlough, which, in turn, effectively nullifies his

opportunity for parole until far later than would have been the case before those

statutes existed and the Level C policies were adopted. The State argues that this

claim cannot succeed because its Level C directives are not “laws,” and the denial of

parole at the sentence minimum is not “punishment” for ex post facto purposes.

      The Vermont Supreme Court has described the familiar standard for motions

to dismiss for failure to state a claim as follows:

      “A motion to dismiss . . . is not favored and rarely granted.” This is
      especially true “when the asserted theory of liability is novel or
      extreme,” as such cases “should be explored in the light of facts as
      developed by the evidence, and, generally, not dismissed before trial
      because of the mere novelty of the allegations.” In reviewing a motion
      to dismiss, we consider whether, taking all of the nonmoving party’s
      factual allegations as true, “‘it appears beyond doubt’ that there exist
      no facts or circumstances that would entitle the plaintiff to relief.” We
      treat all reasonable inferences from the complaint as true, and we
      assume that the movant’s contravening assertions are false.




4The Court chooses to address the arguments set forth by the State as those
contentions would apply with equal force to the extent the complaint is amended to
challenge the November 2015 determination.
                                            7
Alger v. Dep’t of Labor & Indus., 2006 VT 115, ¶ 12, 181 Vt. 309, 316–17 (citations

omitted).



      As he explains it, Mr. Carter’s claim is similar in form, at least at one level of

abstraction, to the ex post facto issues addressed by the Vermont Supreme Court in

Girouard v. Hofmann, 2009 VT 66, 186 Vt. 153 (relying on Knox v. Lanham, 895 F.

Supp. 750 (D. Md. 1995), aff’d, Worsham v. Lanham, 76 F.3d 377 (4th Cir. 1996)),

and in this Court’s recent decision in Chandler v. Pallito, No. 210-4-13 Wncv, 2015

WL 10551407 (Vt. Super. Ct. Dec. 24, 2015).

      Girouard generated a remand to the trial court for factual development. On

remand, the trial court found an Ex Post Facto Clause violation based on its

understanding of Girouard and related authority.5 Girouard v. Hoffman, No. 236-9-

07 Ancv (Vt. Super. Ct. Dec. 18, 2009). The State did not appeal. Chandler

progressed to summary judgment, and the Court ruled for the State, based in part

on its understanding of the Supreme Court’s Girouard decision and related

authority. Chandler is now on appeal.

      As Chandler reflects, the issues in this branch of ex post facto cases are

complicated and nuanced. In Chandler, the Court was able to make a




5 In so ruling on remand, the Girouard trial court expressly recognized that the
facts of Girouard, once developed, were distinguishable from those of Knox (and
presumably from the reasons the Vermont Supreme Court had cited to Knox).
Girouard v. Hoffman, No. 236-9-07 Ancv, Decision and Order at 5 (Vt. Super. Ct.
Dec. 18, 2009). It nevertheless found an ex post facto violation on a different
rationale without considering whether any “legislative act” was at issue in the case.
                                           8
determination that the State policies at issue did not rise to the level of being

“laws.” Here, different policies and directives are in play, and Mr. Carter also has

attempted to link his ex post facto claim to two acts passed by the Legislature.

While this case, ultimately, may present similar directives and legal issues to those

resolved in Chandler, the Court cannot rightly make that determination based on

the limited record available to it on a motion to dismiss. Mr. Carter is entitled to

develop the record as to the legal force of the Level C directives, the links between

the Level C designation and statutory law, and the actual impact of his

classification vis-à-vis parole eligibility.

       The Court also is not persuaded by the State’s argument that there can be no

increase in punishment for ex post facto purposes here because a denial of parole at

a person’s minimum release date can never be considered an increase in

punishment. The argument mischaracterizes Mr. Carter’s claim, which is that

legislative changes and Level C directives have effectively converted his parole-

eligible sentence into one in which he essentially is ineligible for parole for a long

time beyond his minimum. Under limited circumstances, a diminished ability to

receive parole could be sufficient to demonstrate an ex post facto violation. That

was precisely the alleged increase in punishment that was at issue in Girouard and

Knox. See also In re Blow, 2013 VT 75, ¶¶ 10–11, 194 Vt. 416, 422–23 (2013).

                                          ORDER

       For the foregoing reasons, the State’s motion to dismiss is denied. Plaintiff

shall submit an amended complaint concerning the November 2015 determination



                                               9
within 30 days.

      Dated this __ day of April 2016 at Montpelier, Vermont.

                                            _____________________________
                                            Timothy B. Tomasi,
                                            Superior Court Judge




                                       10
