By David Rangaviz
In re Russo, 2013 VT 35
Prisoners file a lot of cases.
This is both self-evident and a little confusing. For most criminal cases, the process starts with an arraignment where the charges are heard followed by a courtroom trial (unless the Defendant accepted a plea agreement—which most do). If found guilty the Defendant then appeals to the SCOV. If the SCOV affirms, the appeal is over.
The end, right?
Criminal cases rarely end with the direct appeal from conviction. In Vermont state court, prisoners who lose on appeal can file petitions for post-conviction relief (“PCR”). And, if all else fails, any prisoner (both state and federal) can file a petition for a writ of habeas corpus in federal court. In 2012, prisoner petitions made up about 20% of all civil cases filed in federal courts—54,300 petitions in total.
This wasn’t always the case. In 1966, prisoners filed only 218 civil rights lawsuits in federal courts. A broadening of criminal laws, with a corresponding increase in incarcerative sentences, has led to a boom in the prison population. Although other factors undoubtedly play a role, more prisoners with longer prison terms generally mean more prisoner lawsuits.
These cases are almost always filed pro se (without a lawyer) and are dismissed. Given the overwhelming volume, courts have to work hard to separate the wheat of meritorious cases from the chaff of frivolous ones. This is a delicate balancing act. Give prisoners too much leeway and they will consume increasingly finite judicial resources (I’m talking to you, sequestration). Construe their claims too harshly, however, and you risk imprisoning the innocent or permitting the continuation of unconstitutional prison conditions or practices. There are needles in this haystack.
At the federal level, Congress responded to the glut of prisoner litigation by the passage of the Prison Litigation Reform Act (“PLRA”) and the Antiterrorism and Effective Death Penalty Act (“AEDPA”) in 1996. Those acts, along with subsequent court decisions, have imposed a number of procedural and substantive hurdles that prisoners must traverse before being allowed to present their claims in court.
For example, under the PLRA prisoners who file civil rights lawsuits must now “exhaust” their administrative remedies in prison—meaning that if they have a complaint about prison conditions, they must first file an internal grievance within the prison (and appeal that grievance to the highest level allowed) before filing a federal lawsuit. [The Supreme Court has interpreted the PLRA exhaustion requirement particularly harshly.]
AEDPA imposed a similar requirement on habeas petitions from state prisoners. To “exhaust” their remedies under AEDPA, state prisoners must first present their federal claims in state court before proceeding to federal court. But even if the prisoner exhausts his state remedies and the state court gets it wrong, the federal court cannot necessarily reverse the judgment. Under AEDPA, the state court’s application of federal law must be both wrong and “unreasonable” (that is, pretty obviously wrong).
In addition, these laws limit the number of cases that prisoners can file. The PLRA includes a “three strikes” limitation on prison civil rights lawsuits: if three prior cases filed by the prisoner are dismissed, the fourth must be accompanied by payment of the full filing fee (a prohibitive cost for most indigent prisoners). In the area of habeas corpus, AEDPA bars prisoners from filing second and successive petitions unless they get specific court permission to do so.
Even if they surmount all of these (and other) hurdles, however, prisoners are almost always met by a motion to dismiss. They file a complaint in court pro se, and a government lawyer immediately responds by claiming that the prisoner’s petition is, in some sense, legally defective, effectively arguing that the case should be kicked out of court before the defendants need to answer or any discovery takes place.
Fortunately for prisoners (and other plaintiffs), petitions at the motion to dismiss stage are read liberally in favor of the plaintiff. The allegations are assumed to be true, and the court will then assess whether those allegations state a legally-valid claim. The theory behind this standard of review is that, when no evidence has yet been submitted, there is no basis to rebut a plaintiff’s factual allegations. As a result, we must assume their veracity and assess whether they support the legal claim the plaintiff asserts.
Today’s case involves a 3-2 split among SCOV about how to read prisoner submissions in the face of one such government motion to dismiss.
The facts are relatively straightforward.
In November 2002, Petitioner was arrested after an altercation with his former mortgage holder in which he allegedly shot at him during a car chase. Petitioner pled guilty to several violations of conditions of release, and a jury found him guilty of aggravated assault, driving while intoxicated, unlawful trespass, and driving with a suspended license.
He later successfully challenged his aggravated assault conviction by PCR petition and was granted a new trial. Awaiting this new trial, Petitioner was held without bail because he was considered a danger to the community (specifically, to the mortgage holder).
In December 2010, Petitioner filed a pro se PCR petition, attacking the earlier convictions for driving with a suspended license and violating conditions of release.
But Petitioner had already served the sentences on these convictions. The Vermont PCR statute requires that a petitioner be “in custody under sentence” at the time of the filing of the petition. How could Petitioner challenge convictions whose sentences he had already served?
Petitioner claimed that the judge in his new case had used the prior convictions to hold him without bail on the pending assault charge. So even though he is technically no longer under sentence from the challenged charges, he is effectively so because the judge used those convictions in making the bail decision.
The trial court dismissed, concluding that the pretrial detention order did not suffice to establish that he was “in custody under sentence” of the challenged convictions.
SCOV affirms. In an opinion by Justice Skoglund, joined by Chief Justice Reiber and Justice Burgess, the majority fully agrees that Petitioner failed to meet the jurisdictional requirement for a PCR petition.
According to the majority, the relevant question is whether the detention is a “direct result” of the challenged conviction. Here, in deciding to detain Petitioner, the judge had taken into consideration a number of factors other than the prior, challenged convictions. Looking to the denial-of-bail order and the hearing transcripts, the judge had referenced Petitioner’s criminal history but did not mention the specific charges that Petitioner now challenges. Furthermore, Petitioner had been charged with a crime of violence (felony aggravated assault), and the court concluded that there was enough evidence to sustain a guilty verdict on that charge. Given the other factors at play in the bail determination, the challenged convictions were too remote in relation to the detention order to support jurisdiction over the PCR petition.
The dissent, written by Justice Robinson and joined by Justice Dooley, would not have dismissed the case quite so soon.
As stated, courts must assume that all of a petitioner’s allegations are true at this early stage of the proceedings, before any evidence is submitted. According to the dissent, rather than look solely at the allegations, the majority has expanded the record to incorporate the denial-of-bail order and hearing transcripts without giving Petitioner an opportunity to present any evidence in response. In essence, the majority has allowed the government to submit evidence without giving a reciprocal opportunity to the Petitioner.
The dissent is careful to state that it did not necessarily agree with Petitioner’s claim, noting instead that the dissent merely felt dismissal was premature.
So who’s right?
Petitioner claimed in his PCR petition that the judge “used” his earlier, challenged convictions to hold him without bail. If we treat all allegations in the petition as true (as we must) I don’t see how the majority can disregard this allegation, the only one relevant to the issue of causation. The majority tries to get around this issue by expanding the record to include transcripts and written orders from the bail hearings, but this is precisely the one-sided admission of evidence that requires that a motion to dismiss be transformed into a motion for summary judgment (which would then allow the Petitioner to respond).
The majority effectively changed the rules in the middle of the game, expanding the record to rebut Petitioner’s allegations without giving him a corresponding opportunity to submit his own evidence. The closeness of the case reminds us of the applicable standard of review—all ambiguity and uncertainty as to the factual allegations must be resolved in Petitioner’s favor at the motion to dismiss stage. The State itself had conceded that the earlier convictions were a factor in the bail determination, but the majority disregarded that concession in favor of its own view of the evidence. For now, that concession, along with Petitioner’s allegations, should have been enough.
Prisoners face many hurdles to having their day in court. They have to worry about filing fees, exhaustion, restrictive statutes of limitations, immunity, standards of review, and, above all else, the legal substance of their claims. Many prisoner claims are frivolous; but not all of them. Prisoners, like other litigants, should be able to rely on generally applicable pleading rules—i.e., that their allegations will be treated as true before discovery begins—to know that their complaints will survive a motion to dismiss if they state a legally-valid claim.
Of course, I hardly blame the majority. Prisoner filings overwhelm the courts. I’m sure this is particularly true at SCOV, as there is no intermediate appellate court in Vermont to shoulder the load. But courts must not allow the daunting caseload to distort their approach to prisoner cases. There is not one set of pleading rules for prisoners and another for plaintiffs (yet). Indeed, once they meet the requirements of the PLRA and AEDPA (in federal court) and applicable state law rules (in state court), prisoners are no different than any other class of plaintiffs. Assuming their mendacity rather than veracity hardly hastens the search for meritorious cases. To the contrary, it buries the needle deeper in the haystack, eventually tricking us into thinking there was nothing buried there to begin with, reinforcing the belief that all prisoner petitions are frivolous and justifying their disparate treatment. But these petitions do not just get dismissed because they are frivolous; they get dismissed because courts and legislatures have erected special barriers to the courts in the belief that prisoners file only frivolous cases. Casebooks are littered with petitions dismissed only because they were unexhausted or untimely, with no assessment of the legal merits having taken place.
When prisoners somehow survive the hurdles uniquely applicable to them and state a valid claim—all without a lawyer, in most cases—they should not have to meet a higher standard of pleading than is applicable to any other plaintiff. Courts should not be inherently skeptical of prisoner cases just because of their volume. Each petition must be assessed on its merits, at least to the degree that laws like the PLRA and AEDPA allow.
Of course, there is one other possible fix for the surfeit of suits: If we want fewer prisoner petitions, maybe we should consider having fewer prisoners.