NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109
State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made
before this opinion goes to press.


                                           2018 VT 5

                                  Nos. 2013-191 & 2015-382

In re Edwin A. Towne, Jr.                                     Supreme Court

                                                              On Appeal from
                                                              Superior Court, Chittenden Unit,
                                                              Civil Division

                                                              September Term, 2017


Geoffrey W. Crawford, J. (2013-191)
Helen M. Toor, J. (2015-382)

Edwin A. Towne, Jr., Pro Se, Marion, Illinois, Petitioner-Appellant.

Thomas J. Donovan, Jr., Attorney General, and John Treadwell and Eleanor L.P. Spottswood,
 Assistant Attorneys General, Montpelier, for Respondent-Appellee.


PRESENT: Reiber, C.J., Skoglund, Robinson and Eaton, JJ., and Burgess, J. (Ret.),
         Specially Assigned


       ¶ 1.    ROBINSON, J. Petitioner Edwin A. Towne, Jr. appeals in this consolidated case

from the dismissal of two petitions for post-conviction relief (PCR), his tenth and eleventh such

petitions. Because his various claims are either successive, an abuse of the writ, or outside the

scope of the PCR statute, we affirm.

       ¶ 2.    This somewhat complex appeal requires an understanding of petitioner’s past

history of PCR petitions; the two PCR petitions on appeal in this case; our law concerning

successive petitions and abuse of the writ, respectively; the potential implications of the U.S.

Supreme Court’s 2012 decision in Martinez v. Ryan, 556 U.S. 1 (2012); and the effect of these

considerations on petitioner’s main contentions on appeal.
                                       I. Prior PCR Petitions

       ¶ 3.    The relevant history is as follows. In 1989, petitioner was convicted of first-degree

murder. This Court’s decision on petitioner’s direct appeal of his conviction describes the

circumstances of the underlying crime. State v. Towne, 158 Vt. 607, 615 A.2d 484 (1992).

       ¶ 4.    While his direct appeal was pending, petitioner filed a petition for post-conviction

relief (PCR) in the superior court alleging that he had been denied a speedy trial and that his trial

counsel was ineffective in failing to pursue alibi witnesses, raise an insanity defense, or adequately

impeach State’s witnesses. The court held a series of hearings at which petitioner was represented

by counsel. In an entry order dated August 1992, the court dismissed the petition, stating that

“[p]etitioner has failed to frame the issue in such a way that any likelihood of a different outcome

would have been possible.” Petitioner did not appeal.

       ¶ 5.    In September 1992, petitioner filed his second PCR petition alleging a speedy trial

violation and arguing that his “trial on information” rather than grand jury indictment violated his

rights. The court dismissed this petition on the merits, and petitioner did not appeal.

       ¶ 6.    Seven months later, petitioner filed his third PCR petition, once again alleging that

his trial counsel had been ineffective in failing to pursue potential alibi witnesses. The court

dismissed the petition, noting that the same claim had already been addressed on the merits in the

first PCR petition. Petitioner appealed to this Court, arguing that the dismissal of his first PCR

petition had not been on the merits because there was no evidentiary hearing held on the record,

and thus the original PCR court could not have determined whether his claim had merit. In re

Towne, No. 1994-105 (Vt. April 25, 1995) (unpub. mem.). In April 1995, this Court affirmed the

dismissal on the ground that petitioner’s claim was successive because the original PCR court

dismissed the petition on the merits after considering the trial record and the underlying facts

concerning the alleged deficiencies by trial counsel. Id., slip op. at 2. In addition, this Court

concluded that the third petition suffered the same flaw as petitioner’s first: petitioner did not


                                                  2
establish that the alibi witnesses would have confirmed his story and changed the outcome of the

trial. Id.

        ¶ 7.    In September 1995, petitioner filed his fourth PCR petition. He alleged, among

other things, that his appointed counsel during his first PCR petition was ineffective for failing to

appeal its dismissal or to notify him of the dismissal so that he could appeal pro se. That PCR

court granted the State summary judgment, ruling in relevant part that his original PCR counsel’s

failure to appeal could have been raised in prior petitions and were thus successive. On appeal to

this Court, petitioner argued that his claim was not successive because a PCR claim is only

successive if it renews issues that were determined on the merits in an earlier decision and the ends

of justice would not be served by reaching the merits on a later petition. The Court disagreed with

petitioner and held that the PCR court had the discretion to dismiss new claims that could have

been raised in an earlier petition, absent petitioner demonstrating cause as to why he had not raised

them previously. In re Towne, No. 1997-483, slip op. at 2 (Vt. Sept. 30, 1998) (unpub. mem.).

        ¶ 8.    In a fifth PCR petition petitioner argued that he was denied effective assistance of

PCR counsel in his first PCR proceeding because his counsel failed to present alibi witnesses,

appeal the petition dismissal, or notify petitioner of the dismissal. This court affirmed that PCR

court’s dismissal on the basis that all of these claims were raised in previous PCR petitions and

were thus successive. In re Towne, No. 1999-216, slip op. at 1 (Vt. Jan. 6, 2000) (unpub. mem.).

        ¶ 9.    While his fifth PCR petition was pending, petitioner filed a sixth, raising claims not

relevant to this appeal. This Court affirmed that PCR court’s dismissal. In re Towne, No. 2000-

71, slip op. at 2 (Vt. Aug. 3, 2000) (unpub. mem.).

        ¶ 10.   In October 2001, petitioner filed his seventh PCR petition arguing that the judge

who presided over his first PCR petition had also participated in his underlying criminal

proceeding, which violated 13 V.S.A. § 7131. This Court expressed doubts about petitioner’s

argument on the merits but noted that, even assuming § 7131 could be extended to disqualify a

PCR judge who only heard pretrial motions in the underlying case, petitioner’s claim exceeded the
                                               3
scope of the PCR statute because it would not invalidate the conviction or sentence or otherwise

make his criminal judgment vulnerable to collateral attack. Towne v. State, No. 2004-390, 2005

WL         6151843,      at     *1-2      (Vt.      Oct.      28,      2005)      (unpub.       mem.),

https://www.vermontjudiciary.org/sites/default/files/documents/eo04-390.S.pdf.1             The Court

further explained that, even if petitioner had a viable claim within the statute, the claim was

precluded because he had not shown cause for failing to raise it in an earlier PCR petition. Id.

       ¶ 11.    In October 2003, petitioner filed his eighth PCR petition alleging grounds not

relevant to this appeal. This Court affirmed the dismissal and explained that the petition was

successive because essentially this same claim had already been addressed and decided on the

merits in a prior PCR proceeding, and “the ends of justice would [not] be served in reaching the

merits” of this petition. Towne v. State, No. 2004-521, 2005 WL 6151845, at *2 (Vt. Oct. 28,

2005) (unpub. mem.), https://www.vermontjudiciary.org/sites/default/files/documents/eo04-

521.S.pdf.

       ¶ 12.    In October 2005, petitioner filed a petition that the PCR court construed as his ninth

PCR,2 challenging the 1986 traffic stop that precipitated his arrest for murder and arguing that he

had ineffective assistance of counsel during both his trial and direct appeal. That PCR court

dismissed the motion as successive, and this Court affirmed, explaining that petitioner’s claims


       1
          This Court dismissed petitioner’s direct appeal of the trial court’s decision as untimely.
The PCR court subsequently denied petitioner’s 60(b) motion to set aside and then reissue its initial
judgment to enable petitioner to file a timely appeal. This Court’s discussion of the merits of
petitioner’s arguments in his seventh PCR petition appeared in a decision affirming that PCR
court’s denial of petitioner’s 60(b) motion.
       2
            In October 2004, petitioner filed a motion alleging that the State violated his
constitutional rights by arguing on the basis of laches for the dismissal of his federal habeas corpus
petition because laches is not recognized as a defense in state PCR proceedings. This Court
affirmed the trial court’s dismissal, holding that it was without power to give petitioner relief for
the State’s successful litigation in federal court pursuant to federal law. Towne v. State, No. 2005-
201, 2005 WL 6151856 at *1 (Vt. Oct. 1, 2005) (unpub. mem.),
https://www.vermontjudiciary.org/sites/default/files/documents/eo05-201.S.pdf. The trial court
treated this petition as a PCR, although for purposes of our analysis on appeal we accepted
petitioner’s assertion that his petition was not a petition for post-conviction relief. For that reason,
we do not count this post-judgment petition in the tally of prior PCR petitions in this case.
                                                    4
“[did] not clearly differ in substance from those already raised and ruled upon in petitioner’s many

prior petitions.” In re Towne, 2007 VT 80, ¶ 6, 182 Vt. 614, 938 A.2d 1205 (mem.).

                                     II. PCR Petitions on Appeal

        ¶ 13.   This consolidated opinion addresses petitioner’s tenth and eleventh PCR petitions.

In April 2012, petitioner, pro se, filed a “Petition for Appointment of Competent, Conflict-Free

Counsel to File a 13 V.S.A. 7131 Petition for Ineffective Assistance of Court Appointed Trial,

Appellate, and Post-Conviction Counsel in Light of the Recent U.S. Supreme Court Rulings in

Martinez v. Ryan, 132 S. Ct. 1309 (2012) and Maples v. Thomas, 132 S. Ct. 912 (2012).” (PCR

2013-191). Petitioner argued that: (1) his trial counsel was ineffective in failing to pursue alibi

witnesses and for failing to disqualify himself due to a conflict of interest that arose from counsel’s

prior representation of a State’s witness; (2) one of his lawyers on direct appeal, who had

represented petitioner at trial, had a conflict of interest on appeal after petitioner filed his first PCR

petition alleging ineffective assistance of trial counsel; (3) Chief Justice Jeffery Amestoy was

conflicted from sitting on his direct appeal because Chief Justice Amestoy had been Vermont’s

Attorney General during petitioner’s trial; and (4) petitioner’s original PCR counsel had been

ineffective in arguing his case, failing to appeal, and failing to notify petitioner that his petition

had been dismissed so petitioner could appeal himself. Petitioner cited Martinez v. Ryan, 556 U.S.

1 (2012), to argue that ineffective assistance of counsel at his original PCR proceeding created

cause to bypass the procedural hurdles of successiveness and abuse of the writ. The State filed a

motion to dismiss the petition as successive, an abuse of the writ, and “for failure to state claims

cognizable in a PCR petition.” Petitioner’s court-appointed counsel did not respond to the State’s

motion.

        ¶ 14.   In March 2013, the PCR court granted the State’s motion to dismiss. With respect

to petitioner’s claims of ineffective assistance of trial counsel, the court concluded on the basis of

the reasoning in Martinez and Maples v. Thomas, 565 U.S. 266 (2012), that ineffectiveness of

petitioner’s lawyer in his first PCR proceeding could overcome the procedural bars of
                                           5
successiveness and abuse of the writ to enable the court to consider the merits of petitioner’s PCR

claims on the basis of ineffective assistance of trial counsel. However, the court concluded that

petitioner had failed to establish that the first PCR court had erred in determining that his

ineffective-assistance-of-trial-counsel claim was without merit. In particular, petitioner did not

demonstrate that the errors of counsel during his underlying trial actually and substantially

prejudiced him because he did not show that the alibi witnesses he contended trial counsel should

have contacted would have provided exculpatory testimony.                Because petitioner did not

demonstrate prejudice from his initial PCR counsel’s alleged ineffectiveness with respect to this

claim, his claim was “barred as successive and an abuse of the writ.”

        ¶ 15.   The court noted that petitioner’s claim that he had ineffective assistance on direct

appeal of his underlying conviction because one of his lawyers on direct appeal had a conflict was

likewise successive. The court further explained that even if petitioner could link his failure to

raise this claim in his original PCR petition to ineffective assistance of PCR counsel, his claim

failed on the merits. The lawyer alleged by petitioner to be ineffective at trial did not represent

him on appeal, and petitioner failed to show how the only lawyer who represented him both at trial

and on appeal was incompetent in his appellate representation. Because the claim failed on the

merits, the alleged ineffectiveness of petitioner’s lawyer in his first PCR case in failing to raise the

issue caused no prejudice, and the PCR court dismissed this claim as an abuse of the writ.

        ¶ 16.   Finally, the court concluded that petitioner’s stand-alone claim of ineffective

assistance of prior PCR counsel was beyond the scope of the PCR statute—which “is limited to

correcting a defective conviction or sentence resulting from a violation of the law.” 13 V.S.A.

§ 7131; id. § 7133.3



        3
           The PCR court did not address the other two issues raised in petitioner’s tenth PCR
petition: that one of his trial lawyers had an actual conflict of interest and the trial court failed to
hold a hearing to address the matter when it came to light, and that Chief Justice Amestoy
improperly participated in his direct appeal.

                                                   6
       ¶ 17.    In December 2014, petitioner, pro se, filed his eleventh PCR petition (PCR 2015-

382).4 Petitioner elaborated on the circumstances surrounding the in-court disclosure that his trial

counsel had previously represented a witness in the case, and explained that he had told his lawyer

that he believed this witness had committed the murder. Petitioner argued that the trial court

should have advised him of his right to conflict-free representation and the dangers of this

particular conflict, giving him the opportunity to decide whether to accept the risks and dangers of

the conflict after consultation with independent counsel. He identified examples of failures by his

trial counsel that he attributed to the conflict. Petitioner’s appointed counsel filed no response to

the State’s motion to dismiss the petition as successive and an abuse of the writ.

       ¶ 18.    In September 2015, the court dismissed the petition on the basis that his claims had

either already been raised and addressed on the merits in previous petitions or they could have

been raised in previous petitions. Furthermore, the court noted that “there is nothing to suggest

that if trial counsel had done what [petitioner] now thinks he should have done, the result at his

trial or sentencing would have been different.”

       ¶ 19.    Now on consolidated appeal in PCR 2013-191 and PCR 2015-382, petitioner

appears to argue that: (1) the PCR court “jumped the gun” in dismissing PCR 2013-191 because

his petition merely sought appointment of counsel and did not yet raise the merits of that petition;

(2) the PCR court improperly failed to inform him that the State had filed a motion to dismiss in

PCR 2013-191, preventing him from protecting his rights; (3) his trial counsel was ineffective for

failing to pursue alibi witnesses who would have provided exculpatory evidence; (4) he was

ineffectively represented on direct appeal because he had filed an ineffective-assistance-of-counsel

claim against his appellate lawyer; (5) the court’s decision in his first PCR proceeding was

compromised because the judge in that matter had participated in pretrial rulings in the underlying




       4
           Petitioner was represented by counsel for at least part of this proceeding.
                                                 7
prosecution; and (6) requiring him to represent himself in this appeal deprives him of meaningful

access to the courts.5

                             III. Successive Petitions and Abuse of the Writ

       ¶ 20.   Vermont’s PCR statute, 13 V.S.A. § 7131, provides “prisoners with an opportunity

to challenge the legality of their confinement, and thus to guard against illegal restraints on

liberty.” In re Laws, 2007 VT 54, ¶ 9, 182 Vt. 66, 928 A.2d 1210 (quotation omitted). Specifically,

the statute provides that:

                A prisoner who is in custody under sentence of a court and 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, may at any time move the superior court of the county where
               the sentence was imposed to vacate, set aside or correct the sentence.

13 V.S.A. § 7131.




       5
          In addition, he makes general references to his “200+” claims of error in support of his
various petitions for post-conviction relief. Because these references are vague and not otherwise
adequately briefed, we do not review whatever claims he may be attempting to reference. See
Quazzo v. Quazzo, 136 Vt. 107, 111, 386 A.2d 638, 641 (1978) (explaining that “we do not search
the record for error not adequately briefed or referenced”).

        Petitioner also intimates that he received inadequate access to legal research materials, but
appears to do so in the context of noting the ineffectiveness of his current PCR counsel. It is not
clear whether petitioner makes an independent claim based on the access-to-law-library
allegations, or what relief he seeks. Inadequate access to legal materials in these tenth and eleventh
PCR proceedings would not in any event be grounds for post-conviction relief invalidating the
underlying conviction or sentence. 13 V.S.A. § 7131; see also infra, ¶ 42 n.14.

         Petitioner alludes in passing to his previous complaint that Chief Justice Amestoy
improperly participated in his direct appeal, and his assertion that Justice Amestoy’s name was
deleted from the decision’s signature page in response. He does not appear to squarely renew the
argument on appeal, and we note that it is demonstrably false. Arguments for petitioner’s direct
appeal were heard in February 1991, and the final opinion was issued in May 1992, which was
well before Chief Justice Amestoy was sworn into this Court in January 1997. See Office of the
Vermont Secretary of State, Vermont State Archives and Records Administration, Justices of the
Supreme         Court     1778-Present,    https://www.sec.state.vt.us/media/308078/justices.pdf,
[https://perma.cc/6B4J-3XWN].
                                                 8
       ¶ 21.   We have identified two related but distinct restrictions that limit a petitioner’s

ability to raise a claim in a second or subsequent PCR petition: limitations on successive petitions

and abuse of the writ. See Chandler v. State, 2016 VT 62, ¶ 6 n.2, 202 Vt. 226, 148 A.2d 574

(distinguishing between the test for abuse of the writ and successiveness); Laws, 2007 VT 54, ¶ 11

(same); see also Kuhlmann v. Wilson, 477 U.S. 436, 444 n.6 (1986) (“The terms ‘successive

petition’ and ‘abuse of the writ’ have distinct meanings.”). These constraints arise from Vermont’s

PCR statute and the gloss that this Court has applied to that statute.

                         A. Successive Petitions Resolved on the Merits

       ¶ 22.   Vermont’s PCR statute provides, “The court is not required to entertain a second or

successive motion for similar relief on behalf of the same prisoner.” 13 V.S.A § 7134. We have

recognized that this provision applies to “relitigation of claims actually raised and decided on the

merits in an earlier PCR.” Laws, 2007 VT 54, ¶ 11.

       ¶ 23.   In recent decisions, we have suggested that if a claim has been addressed on the

merits in a prior proceeding, a court is affirmatively precluded from entertaining it again. See

Chandler, 2016 VT 62, ¶ 8 (“Section 7134 bars relitigation of claims already raised and decided

on the merits in an earlier PCR.”); Towne, 2007 VT 80, ¶ 5 (same); Laws, 2007 VT 54, ¶ 11

(same). However, this open-and-shut approach does not entirely jibe with our prior caselaw, which

we have not expressly overruled, that calls for consideration of the “ends of justice” in determining

whether to entertain a successive petition raising a claim previously addressed on the merits.6 We

need not in this case resolve the tension in our caselaw because we would affirm under either test.



       6
           In Sanders v. United States, the U.S. Supreme Court examined its test for a successive
writ of habeas corpus under 28 U.S.C. § 2255, which at that time provided that a “sentencing court
shall not be required to entertain a second or successive motion for similar [habeas] relief on behalf
of the same prisoner.” 373 U.S. 1, 3 (1963) (quotations omitted). The Court held that a district
court had the discretion to decline to entertain a habeas writ if: (1) the same ground presented in
the subsequent petition was determined adversely to the applicant in the prior petition; (2) the prior
determination was on the merits; and (3) the “ends of justice” would not be served by reaching the
merits in the subsequent petition. Id. at 15.

                                                  9
       ¶ 24.   Our standard of review turns in part on the applicable test. If we have replaced the

Sanders framework, with its inclusion of discretionary consideration of the “ends of justice,” with

a complete bar to successive petitions, our review is nondeferential. Under this approach, the PCR

court engages in a straightforward application of law that does not warrant a deferential review.

See Chandler, 2016 VT 62, ¶ 6 n.2 (explaining that “[i]t matters little, if any, what standard of

review is used” for successive petitions because § 7134 “bars relitigation of claims actually raised

and decided on the merits in an earlier PCR”). On the other hand, to the extent that the “ends of

justice” are a pertinent consideration in determining whether to entertain a successive petition

regarding a matter previously resolved on the merits, we defer to the trial court’s reasonable

exercise of discretion on that question. See Woodmansee, 132 Vt. at 109, 315 A.2d at 251

(explaining that under “ends of justice” test “each application is to be disposed of in the exercise

of a sound judicial discretion guided and controlled by a consideration of whatever has a rational

bearing on the propriety of the discharge sought”).




         Beginning in at least the early 1970s, this Court used the Sanders three-part “ends of
justice” test in applying our own limitation on successive petitions. See State v. Provencher, 128
Vt. 586, 591, 270 A.2d 147, 150 (1970) (Holden, C.J., concurring) (suggesting, with concurrence
of all members of Court, that § 7134 has “the same force and effect” as corresponding federal
statute, and identifying three-part Sanders framework for evaluating subsequent petitions); see also
In re Currier, 147 Vt. 645, 645, 513 A.2d 41, 41 (1986) (mem.) (applying three-part test and
concluding that petitioner had failed to show that ends of justice would be served by permitting
redetermination of petitioner’s claim); Woodmansee v. Stoneman, 132 Vt. 107, 110, 315 A.2d
249, 251 (1974) (expressly adopting three-part framework for evaluating successive petitions).

        However, in Laws, the Court sought to establish a test for abuse of the writ, and, in doing
so, differentiated our test for abuse of the writ compared to that for successiveness. 2007 VT 54,
¶ 20. In this analysis, the Court briefly examined our past case law concerning successive petitions
and noted that we had employed the Sanders “ends of justice” test. Id. ¶ 11. Then, the Court
asserted without discussion that “it is clear that § 7134 bars litigation of claims actually raised and
decided on the merits in an earlier PCR.” Id. Since Laws, rather than holding that a court is not
required to entertain a subsequent writ addressing a matter previously resolved on the merits, we
have apparently barred successive petitions altogether without addressing the “ends of justice”
prong of the Sanders framework that we had previously adopted. See Chandler, 2016 VT 62, ¶ 8
(citing Towne, 2007 VT 80, ¶ 5, and Laws, 2007 VT 54, ¶ 11); Towne, 2007 VT 80, ¶ 5 (citing
Laws, 2007 VT 54, ¶¶ 11, 20-22). Laws did not purport to overrule our prior decisions in whole
or in part, but did articulate a standard that is inconsistent with our prior approach.
                                                    10
                                        B. Abuse of the Writ

       ¶ 25.   A close cousin to the restriction against successive petitions doctrine is the

prohibition of abuse of the writ, which pertains to claims raised for the first time in a second or

subsequent PCR petition. When a petitioner files a second or subsequent petition, the government

bears the burden of pleading abuse of the writ, setting forth a petitioner’s writ history, identifying

the claims that appear for the first time, and alleging the petitioner has abused the writ. Laws,

2007 VT 54, ¶¶ 21-22 (citing McCleskey v. Zant, 499 U.S. 467, 494 (1991)). Then the burden

shifts to the petitioner to show cause for failing to raise the claim previously and actual prejudice

from the default. Id. ¶ 22. Under the cause prong, the petitioner must show “some objective

factor external to the defense” that “impeded counsel’s effort to raise the claim in an earlier

proceeding.” Id. ¶ 20 (quotation omitted). Examples of cause include situations where a factual

or legal basis was not available at the time of the earlier proceeding, instances of official

interference, or ineffective assistance of counsel. Id. (citing McCleskey, 499 U.S. at 493-94).

Actual prejudice requires more than merely showing that the alleged errors during the underlying

trial “created a possibility of prejudice,” but rather that they worked to the petitioner’s “actual and

substantial disadvantage,” poisoning “the entire trial with errors of constitutional dimensions.” Id.

(quotation omitted).

       ¶ 26.   We have not previously established a standard of review for abuse of the writ. In

considering the matter, we turn to federal case law to aid our interpretation of Vermont’s PCR

statute. See In re Chandler, 2013 VT 10, ¶ 16 n.4, 193 Vt. 246, 67 A.3d 261 (“We frequently refer

to federal case law in the interpretation of our own post-conviction relief statute because, as we

have observed, our statute is in the nature of habeas corpus.”); Laws, 2007 VT 54, ¶ 13 (explaining

that federal habeas corpus statute, 28 U.S.C. § 2255, is “federal counterpart to Vermont’s § 7134”).

       ¶ 27.   Federal appellate courts historically reviewed trial court decisions involving abuse

of the writ for abuse of discretion. This tradition stems, in large part, from Sanders v. United

States, in which the U.S. Supreme Court established an abuse of discretion standard for review of
                                               11
federal district court judgments of abuse of the writ. 373 U.S. at 18. In Sanders, the Court called

upon district courts to examine whether a petitioner raised a new claim that was deliberately

withheld in the first petition, id. at 17-18, or whether the petitioner had exercised “inexcusable

neglect” in failing to raise the claim previously. See McCleskey, 499 U.S. at 488-90. The Court

explained that this “inexcusable neglect” determination was “addressed to the sound discretion of

federal trial judges” since the district courts own “the major responsibility for the just and sound

administration of federal collateral remedies.” Sanders, 373 U.S. at 18.

       ¶ 28.   In 1991, the U.S. Supreme Court adopted the cause and prejudice test noted above

in order to guide federal courts in reviewing allegedly abusive habeas corpus petitions and clarify

“the imprecise contours of the term ‘inexcusable neglect.’ ” McCleskey, 499 U.S. at 493-95, 496.

The Court explained that the test is objective and specific to avoid “individualized enforcement of

the Constitution in different parts of the Nation.” Id. at 496.

       ¶ 29.   In the wake of McCleskey, federal circuit courts of appeal began to abandon the

traditional abuse-of-discretion standard in favor of nondeferential review. These courts reasoned

that the cause-and-prejudice test, as opposed to the old “inexcusable neglect” test, involves a

straightforward application of law that requires far less discretion on the part of the district court.

See, e.g., Zayas v. I.N.S., 311 F.3d 247, 252-53 (3d Cir. 2002) (explaining that after McCleskey,

third circuit reviews abuse of the writ de novo); Macklin v. Singletary, 24 F.3d 1307, 1313 (11th

Cir. 1994) (“In this post-McCleskey era, the abuse of the writ doctrine presents objective, threshold

questions involving application of law to facts. We review district court rulings on such issues not

under an abuse of discretion standard, but de novo.”).

       ¶ 30.   Today, there is an almost even split in the federal circuits as to the standard of

review for abuse of the writ. A slight majority of circuits review the trial courts’ determinations

without deference. See In re Phillips, No. 17-3729, 2017 WL 4541664, at *2 (6th Cir. July 20,

2017); Esposito v. Ashcroft, 392 F.3d 549, 550 (2d Cir. 2004) (per curiam); Zayas, 311 F.3d at

252-53; United States v. Palmer, 296 F.3d 1135, 1141 (D.C. Cir. 2002); Ahmed v. Warden-FCI
                                             12
Englewood, 36 F. App’x 943, 944 (10th Cir. 2002); Jones v. Hanks, No. 94-CV-765, 1997 WL

355515, at *1 (7th Cir. June 24, 1997); Macklin, 24 F.3d at 1313 (1994). While at least four

circuits still apply an abuse-of-discretion review. See McGary v. Scott, 27 F.3d 181, 183 (5th Cir.

1994); Campbell v. Blodgett, 997 F.2d 512, 516 (9th Cir. 1992); Williams v. Groose, 979 F.2d

1335, 1337 (8th Cir. 1992); Miller v. Bordenkircher, 764 F.2d 245, 248 (4th Cir. 1985).

        ¶ 31.   As set forth below, we would hold that petitioner’s claims that have not been

addressed on the merits in an earlier petition are an abuse of the writ under any standard of review.

For that reason, our resolution of this case does not turn on whether we review the trial court’s

ruling as to newly raised claims for abuse of discretion or without deference. We accordingly

decline to decide at this juncture which standard governs our review of the trial court’s dismissal

of claims raised in a second or subsequent PCR petition on account of abuse of the writ.7

                   IV. Petitioner’s Proposed State Law Adaptation of Martinez v. Ryan

        ¶ 32.   In Martinez v. Ryan, the U.S. Supreme Court ruled that ineffective assistance of

PCR counsel in arguing ineffective assistance of trial counsel during petitioner’s initial state PCR

proceeding can constitute cause under federal habeas corpus review to allow the court to entertain

a claim of ineffective assistance of counsel at trial even if the petitioner failed to raise the claim in

the initial PCR proceeding. 566 U.S. at 9, 13-14. Federal law prevents federal courts from

reviewing the merits of a claim in a writ of habeas corpus that a state court declined to hear on

independent state procedural grounds, absent the petitioner demonstrating cause and prejudice. Id.

at 9. In Martinez, the Court formulated the following rule:

                [W]hen a State requires a prisoner to raise an ineffective-assistance-
                of-trial-counsel claim in a collateral proceeding, a prisoner may
                establish cause for a default of an ineffective-assistance claim in two
                circumstances. The first is where the state courts did not appoint

        7
          We recognize that, like the proper framework for evaluating successive petitions raising
issues that have been previously resolved on the merits, the standard of review for abuse-of-the-
writ rulings warrants a clear explication from this Court. However, because resolution of this
question is not essential to deciding this case, we opt to defer the question to a future case in which
it may be more fully briefed by counsel on both sides.

                                                   13
               counsel for the initial-review collateral proceeding for a claim of
               ineffective assistance at trial. The second is where appointed
               counsel in the initial-review collateral proceeding, where the claim
               should have been raised, was ineffective under the standards of
               Strickland v. Washington, 466 U.S. 668 (1984). To overcome the
               default, a prisoner must also demonstrate that the underlying
               ineffective-assistance-of-trial-counsel claim is a substantial one,
               which is to say that the prisoner must demonstrate that the claim has
               some merit.

Id. at 14.8 This rule constitutes an exception to the general rule that negligence on the part of a

prisoner’s post-conviction attorney does not qualify as “cause” to excuse compliance with state

procedural rules. See Coleman v. Thompson, 501 U.S. 722, 752-53 (1991). The Martinez Court

explained that this exception was necessary because the right to effective assistance of trial counsel

“is a bedrock principle in our justice system” and a PCR proceeding is often a petitioner’s first

opportunity to argue a claim of ineffective assistance of counsel. 566 U.S. at 11-12. If a state

imposes limits to second and subsequent petitions, ineffective assistance of a petitioner’s initial

PCR counsel may foreclose a petitioner from ever actually raising ineffective assistance of trial

counsel. Id. The Court noted, however, that its holding was not grounded in the Constitution but

rather in equity as it applied specifically to the federal habeas procedural default rule. Id. at 16.

The Court did not purport to require states to adopt Martinez, or a Martinez-like rule, for

examining the implications of ineffective assistance of original PCR counsel on state procedural

limits such as successiveness and abuse of the writ.9


       8
          In Trevino v. Thaler, the U.S. Supreme Court extended this rule to state procedures that
“by reason of its design and operation, makes it highly unlikely in a typical case that a defendant
will have a meaningful opportunity to raise a claim of ineffective assistance of trial counsel on
direct appeal.” 569 U.S. 413, 414 (2013).
       9
           See, e.g., Johnson v. State, 395 P.3d 1246, 1260-61 (Idaho 2017) (“Because the holding
in Martinez is not a constitutional holding it is not binding on state courts . . . . Accordingly, we
are not obliged to follow Martinez in our state courts.”); Brown v. McDaniel, 331 P.3d 867, 870
(Nev. 2014) (explaining that Martinez “does not address state procedural bars”); Kelly v. State,
745 S.E.2d 377, 377 (S.C. 2013) (mem.) (“Like other states, we hereby recognize that the holding
in Martinez is limited to federal habeas corpus review and is not applicable to state post-conviction
relief actions.”); Ex parte Preyor, No. WR-72,660-04, 2017 WL 3379283, at *2 (Tex. Crim. App.
July 24, 2017) (“[C]ourts have uniformly recognized that the Martinez-Trevino rule is a federal
exception not a constitutional command to correct state habeas proceedings. More specifically,
                                                  14
       ¶ 33.   To show cause under Martinez, the petitioner must demonstrate that the ineffective

assistance of trial counsel claim has merit and that the initial PCR counsel was ineffective in

arguing, or declining to argue, this claim. See, e.g., Cox v. Horn, 757 F.3d 113, 119 (3d Cir. 2014)

(explaining that under Martinez, petitioner must show that “default was caused by ineffective

assistance of [PCR] counsel” and that “the underlying claim of trial counsel ineffectiveness is

substantial, meaning the claim has some merit” (quotation omitted)).

       ¶ 34.   Petitioner urges us to adopt Martinez, or some similar rule, as an exception to the

principles set forth above concerning successive petitions and abuse of the writ. As we understand

his argument, he would have us conclude under our state law that where counsel in the initial PCR

proceeding has been ineffective in raising or advocating a claim of ineffective assistance of trial

counsel (and perhaps other claims that could only be raised for the first time on initial collateral

review) that ineffectiveness would satisfy the “cause” prong of the “cause and prejudice” test that

applies to the abuse-of-the-writ analysis of claims raised for the first time in a second or subsequent

petition. He apparently also urges us to hold that ineffective assistance of counsel in the initial

PCR proceeding constitutes grounds to relitigate subsequent petitions raising claims previously

resolved on the merits, although it is less clear how this exception would fit into either of the

alternate frameworks for evaluating successive petitions described above.

                         V. Application to Petitioner’s Claims on Appeal

       ¶ 35.   We need not decide whether to accept petitioner’s invitation to import the reasoning

of Martinez into our state law governing successive PCR petitions and abuse of the writ because

we conclude that, even if we did so, petitioner’s claims in this case would fail. In particular, we

conclude that (1) he has failed to show prejudice from the claimed ineffectiveness of trial counsel

with respect to identifying alibi witnesses and securing their testimony; and (2) he has failed to




courts have held that Martinez does not provide a basis for state courts to excuse petitioners from
compliance with state procedural rules.”)
                                               15
show prejudice in connection with his claim of ineffective assistance of counsel on direct appeal

of his conviction.10

               A. Trial Counsel’s Failure to Secure Testimony of Alibi Witnesses

       ¶ 36.   Even if we adopted some version of Martinez in our state law, petitioner’s attempt

to circumvent the successive-petition limitation due to the alleged ineffectiveness of his initial

PCR counsel in advocating the ineffectiveness-of-trial-counsel claim would fail. First, the claim

is clearly successive, having been previously resolved on the merits—twice. Second, to avoid the

successive-petition limitation even by his own argument, petitioner would have to show that he

has been prejudiced by trial counsel’s alleged ineffectiveness. Finally, he has not demonstrated

any such prejudice, relying only on speculation and hypothetical possibilities to support his claim.




       10
            Several of petitioner’s process-related claims do not require extensive analysis. We
reject petitioner’s claim that the trial court erred in construing his 2012 “Petition for Competent,
Conflict-Free Counsel to File a 13 V.S.A. 7131 Petition for Ineffective Assistance of Court
Appointed Trial, Appellate, and Post-Conviction Counsel in Light of Recent U.S. Supreme Court
Rulings in Martinez v. Ryan, 132 S. Ct. 1309 (2012) and Maples v. Thomas, 132 S. Ct. 912 (2012)”
as one for post-conviction relief, and in reaching the merits of that petition. While petitioner
captioned his motion as a request for PCR counsel, its content “return[ed] quickly to [the] familiar
ground” of an argument for PCR. Chandler, 2016 VT 62, ¶ 11 (quotation omitted). Moreover,
insofar as petitioner suggests that the PCR court’s ruling was premature, and he has not had an
opportunity to present evidence or arguments concerning the merits of his PCR petition, we note
that he has not presented any additional arguments or proffered any additional evidence on appeal.

        We also conclude that requiring petitioner to present his own case has not denied him
meaningful access to the courts. Petitioner has no constitutional right to court-appointed counsel
on appeal in connection with his tenth and eleventh PCR petitions. See In re Bruyette, 2014 VT
30, ¶ 9, 196 Vt. 261, 96 A.3d 1151 (“A convicted offender has no constitutional right to state-
funded counsel in an appeal from a trial court judgment in a PCR case.” (citing Coleman v.
Thompson, 501 U.S. 722, 755 (1991))). His statutory right to state-funded counsel is generally
conditioned on an assessment by the Defender General. Id. ¶¶ 10-18.

       And we reject petitioner’s contention that the trial court had a duty to mail him, personally,
a copy of the State’s motion to dismiss. Petitioner makes no claim that the State failed to serve its
motion on his counsel of record, as required by Vermont Rule of Civil Procedure Rule 5(b). While
the Court frowns on the failure of defense counsel to file any response to the State’s motions to
dismiss in the two dockets, we do not credit petitioner’s claim that the court’s failure to send him
a copy of the State’s motion constituted reversible error.

                                                 16
        ¶ 37.   Petitioner’s claim of ineffective assistance of trial counsel due to counsel’s failure

to pursue alibi witnesses was addressed on the merits on two previous occasions—by the PCR

court in his original PCR petition and by this Court in his third petition.11 See Towne, No. 94-105,

slip op. at 1. This claim is successive. Even if this Court revived our prior test to allow for

consideration of the interests of justice in considering whether to review a successive petition,

petitioner has not established any basis for departing from our general reluctance to allow

relitigation of a claim raised and decided on the merits in a prior PCR proceeding.

        ¶ 38.   Moreover, even if we adopted some version of Martinez and applied it to successive

petitions as well as abuse-of-the-writ claims, petitioner would have to show prejudice. The need

to demonstrate prejudice arises at two junctures in the analysis. First, we have adopted the

Strickland v. Washington, 466 U.S. 668 (1984), standard for determining ineffective assistance of

counsel under the Vermont Constitution. See, e.g., In re Sharrow, 2017 VT 69, ¶ 9,__ Vt.__, __

A.3d __. Pursuant to Strickland, the petitioner must show (1) “that counsel’s performance fell

below an objective standard of reasonableness informed by prevailing professional norms,” and

(2) that there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different.” In re LaBounty, 2005 VT 6, ¶ 7, 177 Vt. 635, 869

A.2d 130 (mem.) (quotation omitted); see also Sharrow, 2017 VT 69, ¶ 9. In other words, under

Strickland, to establish that initial PCR counsel was ineffective for failing to effectively advocate

the claim of ineffective assistance of trial counsel, failing to appeal the PCR court’s dismissal of

the ineffective-assistance-at-trial claim, and failing to notify petitioner of the dismissal so he could

appeal himself, petitioner must demonstrate that it would have made a difference if counsel had

advocated more effectively, appealed the dismissal, or notified petitioner of the dismissal.

        ¶ 39.   Second, as noted above, to avoid the limitation on successive petitions under

Martinez, petitioner “must also demonstrate that the underlying ineffective-assistance-of-trial-


        11
         In addition, this claim was dismissed as successive in his fifth PCR petition. Towne,
No. 99-216, slip op. at 1.
                                             17
counsel claim is a substantial one, which is to say that [he] must demonstrate that the claim has

some merit.” 566 U.S. at 14. Whether cast as a component of the threshold “ineffective

assistance” determination, or as a necessary element of the analysis under Martinez, petitioner’s

burden of persuasion in seeking to circumvent the limitations on successive petitions requires that

he make some showing to support his claim that if trial counsel had properly investigated alibi

witnesses and secured their testimony, it would have helped petitioner’s defense. See Laws, 2007

VT 54, ¶ 21 (explaining that once State establishes basis for abuse-of-writ claim, burden shifts to

petitioner to show cause for prior failure to raise claim in question); In re Dunbar, 162 Vt. 209,

211-12, 647 A.2d 316, 319 (1994) (explaining that petitioner alleging ineffective assistance of

counsel bears burden of proving that counsel’s performance fell below professional standard and

“that counsel’s deficient performance prejudiced the defense”).

       ¶ 40.   As the PCR courts in both proceedings below noted, there is no evidence to suggest

that if trial counsel had done what petitioner contends he should have done, the result of his trial

and sentencing would have been any different. Petitioner speculates that the one identified witness

and the ten unidentified witnesses would have confirmed his alibi. He does not offer any affidavits,

deposition testimony, or other basis other than his own conjecture to support his belief on this

point. Petitioner’s speculation on this point is insufficient to establish the requisite prejudice at

either step of the analysis noted above. Accordingly, whether we review the trial courts’

determinations with or without deference, we conclude that there is no basis for entertaining

successive petitions on the claim of ineffective assistance of trial counsel based on counsel’s

failure to secure the testimony of additional alibi witnesses.12




       12
           In his petition to the court below, petitioner raised an ineffective-assistance-of-trial-
counsel claim premised on an alleged conflict of interest between trial counsel and a State’s
witness. Because petitioner did not address this claim in his briefs on appeal, we do not reach it.
State v. Grenier, 2014 VT 121, ¶ 11 n.4, 198 Vt. 55, 110 A.3d 291.
                                                18
                    B. Counsel’s Alleged Conflict of Interest on Direct Appeal

       ¶ 41.   For similar reasons, even if we incorporated into Vermont law the Martinez

approach to reviewing claims for post-conviction relief raised in the second or subsequent PCR

petitions, we would reject petitioner’s argument because his claim that his appellate counsel was

ineffective due to a conflict does not have substantial merit.13 Petitioner argues that his appellate

counsel was ineffective because petitioner was represented on appeal by his trial counsel, Attorney

Stetler, and during the course of his direct appeal, petitioner filed his first PCR petition claiming

ineffective assistance of counsel, thereby creating a conflict of interest for his appellate counsel.

In contrast to his claim that his trial counsel was ineffective due to his failure to muster alibi

witnesses, it does not appear that any court has previously resolved this claim on the merits.

Petitioner apparently raised the claim for the first time in his ninth PCR petition, which was

dismissed as successive. For the reasons set forth above, supra, ¶¶ 36-39, petitioner can only avoid

dismissal on the basis of abuse of the writ if he can establish cause for failing to raise the claim in

the earliest possible petition, and prejudice as a result of the claimed conflict. In other words, even

if petitioner could show cause for failing to raise this claim in the earliest possible petition, he

would also have to show that if his initial PCR counsel had raised the issue it would have made a

difference to his conviction or sentence—that is, that the claim has merit. We conclude that he

has not made such a showing.

       ¶ 42.   Court records reflect that Attorneys E.M. Allen and William A. Nelson entered

appearances for petitioner in his direct appeal. Attorney Allen was Vermont’s Defender General

during the course of much of petitioner’s direct appeal, but there is no evidence that he played a

direct role in the appeal. Attorney Nelson—who did not represent petitioner during his trial—



       13
           In Davila v. Davis, the U.S. Supreme Court declined to extend Martinez to instances
where initial PCR counsel was ineffective in arguing ineffective-assistance-of-appellate-counsel,
as contrasted with trial counsel. __ U.S.__, 137 S. Ct. 2058, 2065 (2017). However, Davila would
not constrain our ability to adopt or reject Martinez, or our ability to decide whether to extend
Martinez to claims of ineffective assistance of appellate counsel.
                                                 19
authored the appellate brief and presented the oral argument. The evidence supports the PCR

2013-191 court’s finding that Attorney Stetler was not counsel of record in the direct appeal. The

fact that Attorney Stetler was apparently pictured in a newspaper article sitting at counsel table

during the oral argument on appeal does not undermine this conclusion. Petitioner has not

demonstrated how the alleged conflict arising from his ineffective-assistance claims regarding

Attorney Stetler undermined his representation by Attorney Allen or Attorney Nelson—the lead

counsel on the appeal—during his preparation and presentation of the appeal. Regardless of

whether we review the trial courts’ decisions with or without deference, because petitioner’s

claims fall short on the merits, he cannot avoid the impact of the abuse-of-the-writ limitation.14

       Affirmed.

                                                FOR THE COURT:



                                                Associate Justice




       14
            We reject petitioner’s argument that the judge who presided in the initial PCR
proceeding was ineligible to do so because he made pretrial rulings in the underlying case for the
reasons we articulated in addressing the exact same challenge in connection with petitioner’s
seventh PCR petition. Even assuming § 7131 can be extended to disqualify a PCR judge who only
heard pretrial motions in the underlying case, petitioner’s claim exceeds the scope of the PCR
statute because it would not invalidate the conviction or sentence or otherwise make his criminal
judgment vulnerable to collateral attack. Towne, 2005 WL 6151843, at *1-2. To the extent that
petitioner continues to press a stand-alone claim based on the denial of constitutionally effective
assistance of counsel in his initial PCR proceeding, that claim fails for the same reason.
                                                20
