In Re: Edwin Towne, No. S1222-01 CnC (Katz, J., Aug. 6, 2004)

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STATE OF VERMONT
Chittenden County, ss.:



IN RE EDWIN TOWNE



                                  ENTRY

       Petitioner requests relief through V.R.C.P. 60(b) from a denial of
post-conviction relief that led to an untimely appeal that was dismissed.
Petitioner filed his motion for post-conviction relief in 2001. It was denied
on April 16, 2003. On June 11, 2003, his motion for reconsideration was
also denied. Petitioner was sent notice of this final denial and
acknowledges that he received it on June 16, 2003. On that same day,
petitioner claims that he wrote and sent notice of his intent to appeal. He
claims, however, that this notice was lost in the mail by federal prison
authorities and never reached the court. On August 4, 2003, the Chittenden
Superior Court received notice of petitioner’s appeal. On August 29, 2003,
the Vermont Supreme Court dismissed the appeal as untimely. On
September 19, 2003, the Court re-considered the dismissal and denied it for
failure to find any indication that petitioner had filed his notice of appeal
within the time allowed. On November 18, 2003, the Court denied an
additional appeal by petitioner to reinstate the appeal based on a “motion
for relief pursuant to any available remedy.”

        Petitioner now seeks to reinstate his appeal through V.R.C.P. 60(b)
by having us vacate and then re-instate our original, April 16 denial. The
problem is that petitioner’s complaint stems from the failure to file a timely
appeal. His argument is essentially that he should not be held responsible
for the loss of his notice of appeal by prison officials; how ever valid or
frivolous this may be, it is not the basis for granting a Rule 60 motion.
Rule 60 is not a substitute for a timely appeal. Altman v. Altman, 

, 564 (1999). Rule 60 does allow for relief from judgments but only for
defects in the underlying judgment. 11 C. Wright, et al, Federal Practice
and Procedure: Civil 2d §2851 (1995). Failure to file a timely appeal is an
appellate issue covered by the rules of appellate procedure. Houston v.
Lack, 

, 268 (1988) (question of whether pro se prisoner filed a
timely notice of appeal was an issue under Federal Rule of Appellate
Procedure 4(a)). Petitioner has argued this particular issue to the Vermont
Supreme Court, and it has been dismissed. Beside being outside the scope
of the rule, our involvement on a Rule 60 basis would in essence become
appellate review of this decision. This is something we are neither entitled
nor inclined to do.

        Finally, we note that even under an expansive interpretation of Rule
60, petitioner has not present any cogent reason why such a reinstatement
of his appellate clock is warranted. Petitioner is a serial filer of post-
conviction relief motions. By our calculations, this is the petitioner’s sixth
motion for post-conviction relief. We are confident that as long as pencil
and paper remain available, it is far from his last. Substantively,
petitioner’s current filing is no different that his previous ones. It is waste
of limited judicial resources to continue this game. Due process requires
that everyone receive an opportunity to contest and appeal, but it does not
require the process to continue ad absurdum. We find no equitable reason
to expand Rule 60 under these facts and decline petitioner’s invitation.

      Petitioner’s motion to vacate and re-enter our June 11, 2003 order is
denied.

       Dated at Burlington, Vermont________________, 2004.