By Douglas Ankey
A Vermont prisoner’s valiant effort to hold the state Department of Corrections (DOC) to account died a maddening bureaucratic death in state court on April 4, 2022.

The facts underlying the case began in April 2017, when DOC placed state prisoner Anthony Davey on community-reentry furlough status. He was then arrested again in October 2020 on several charges, including escape from furlough.

While he held in custody on those charges, Davey received a notice of suspension (NOS) report from DOC, informing him a hearing would be held on the escape-from-furlough charge no later than October 29, 2020.

But that date came and went without a hearing and without any contact from DOC.

The following month, DOC issued another NOS and set a new hearing date. But that deadline also lapsed without a hearing. The following February, Davey was suddenly taken to a hearing without any advance notice. Among other sanctions, he was placed on “furlough interrupt” for one year.

The next month, in March 2021, Davey appealed the sanctions via a habeas corpus petition filed in the Windsor Civil Division of state Superior Court. But that court dismissed his case, saying a new state law provided an alternative avenue of appeal, and he had failed to present the kind of “extraordinary circumstances that would warrant substituting a habeas petition” for review under an available alternative.

Understandably curious what circumstances could be more “extraordinary” than the stonewalling he’d received from DOC, Davey appealed, aided by state Defender General Matthew F. Valerio and Annie Manhardt from the Prisoners’ Rights Office in Montpelier.

Taking up the case, the Vermont Supreme Court began by observing that under 12 V.S.A. § 3952, a “person imprisoned in a common jail …may prosecute a writ of habeas corpus to inquire into the cause of such imprisonment or restraint, and obtain relief therefrom if unlawful.”

Yet habeas relief “does not generally provide a substitute for appellate review,” the Court added, citing Shuttle v. Patrissi, 605 A.2d 845 (Vt. 1992).

“Where there are remedies otherwise available, courts do not grant the writ except in ‘rare and exceptional’ circumstances,” the Court continued, citing the same precedent, from which it added that “Petitioners may not gain a ‘tactical advantage through strategic manipulation’ of the courts by deliberately bypassing alternative remedies.”

The Court agreed with the lower court that when his habeas petition was filed in March 2021, Davey had an alternative avenue available to him under 28 V.S.A. § 724(c), which became effective January 1, 2021. Under that law, offenders whose “furlough status is revoked or interrupted for 90 days or longer” make file appeals that are “in accordance” with Vermont Rule of Civil Procedure 74.

Since Davey did not dispute that he was on a community-reentry furlough subsequently interrupted for more than 90 days, § 724(c) was an available alternative to challenge revocation of his furlough status, the Court said. Accordingly, on December 17, 2021, it affirmed the lower court’s dismissal of the habeas petition.

In its decision, the Court chided DOC for failing to follow its own regulations, warning it was coming “very close to the sort of ‘procedural mockery’” the Court had previously warned against in Rutz v. Essex Junction Prudential Comm., 458 A.2d 1368 (Vt. 1983). Yet it gave a DOC a free pass anyway, refusing to award Davey any relief, begging the question: How much mockery will the Court allow? See: Davey v. Baker, 2021 VT 94.

On April 4, 2022, as if in answer to that question, the Washington Civil Division—where Davey returned after his release—said it would love to slap away DOC’s motion to dismiss the case as moot. But its hands were tied by that pesky Rule 74, under which Davey had only 30 days to appeal the revocation of his furlough back in March 2021.

The court duly noted the run-around DOC had given Davey: Since the first two hearings that the agency sent notice of were never held, there was no way Davey could have been found guilty of any violations or earned any sanctions. And since there was no notice of the one hearing at which he was found guilty and sanctioned, it wasn’t legitimate for DOC to continue to hold him in “furlough interrupt.”

Moreover, the court noted, “the case is not moot” because if “Davey were able to prove the due process violation he asserts against the State, it is possible that he could be entitled to an order of expungement.”

“It is therefore not clear that no controversy between the parties remains,” the court said.

Yet because Davey’s appeal was by this point was well outside his 30-day window to file it, the court said it lacked jurisdiction to hear the case and dismissed it. See: Davey v. Vt. Dep’t of Corr., 2022 Vt. Super. LEXIS 54.

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