Austin Burnett v. Matthew Christian

VERMONT SUPREME COURT Case No. 2021-104
109 State Street
Montpelier VT 05609-0801
802-828-4774
www.vermontjudiciary.org
Note: In the case title, an asterisk (*) indicates an appellant and a double asterisk (**) indicates a cross-
appellant. Decisions of a three-justice panel are not to be considered as precedent before any tribunal.
ENTRY ORDER
OCTOBER TERM, 2021
Austin Burnett* v. Matthew Christian } APPEALED FROM:
} Superior Court, Windsor Unit, Civil Division
} CASE NO. 20-CV-00697
Trial Judge: Robert P. Gerety, Jr.
In the above-entitled cause, the Clerk will enter:
Petitioner appeals pro se from the trial court’s dismissal of his petition for habeas corpus
for lack of jurisdiction. We affirm.
Petitioner filed a habeas petition in November 2020. At that time, he was being held
without bail pending a probation violation hearing pursuant to 28 V.S.A. § 301(4). He asserted
that he had not been afforded a timely violation-of-probation (VOP) merits hearing and that he
was entitled to immediate release. In January 2021, while the habeas petition was under
advisement, the criminal division held a VOP merits hearing. It found that petitioner violated
several probation conditions and it imposed petitioner’s deferred sentence of three-years-to-life.
Petitioner’s appeal of that decision is pending in State v. Burnett, Supreme Court Docket
Number 2021-031. The State then moved to dismiss petitioner’s habeas petition as moot and the
trial court granted its request. The court found that petitioner was in custody serving a lawful
sentence imposed by the criminal division based on a finding that petitioner violated the terms of
his probation. Petitioner was not entitled to immediate release and the court had no jurisdiction
to grant the only relief available in a habeas matter, which was an order for release from custody.
It thus dismissed the petition. This appeal followed.
Petitioner argues that his VOP hearing was unreasonably delayed. He also appears to
argue that the court should not have considered the revocation of his probation and the
imposition of the underlying sentence because it post-dated the hearing in this case. He contends
that, even though he may now be serving a lawful sentence, his claim remains that he was not
provided a timely hearing on the VOP complaints.
A petition for a writ of habeas corpus is “intended to be a quick and summary proceeding
for relief from illegal imprisonment.” Shuttle v. Patrissi, 158 Vt. 127, 131 (1992); see also 12
V.S.A. § 3952 (“A person imprisoned in a common jail, or the liberties thereof, or otherwise
restrained of his or her liberty by an officer or other person, may prosecute a writ of habeas
corpus to inquire into the cause of such imprisonment or restraint, and obtain relief therefrom if
it is unlawful.”). “A habeas writ . . . does not generally provide a substitute for appellate

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review,” and “[t]he instances in which the writ is granted where there are remedies by
appeal . . . are rare and of exceptional nature.” Patrissi, 158 Vt. at 131 (citation omitted).
The court did not err in dismissing the habeas petition. The court has authority only to
decide “actual, live controversies between adverse litigants.” Sullivan v. Menard, 2019 VT 76,
¶ 5, 211 Vt. 138 (citation omitted). “Even though there was once an actual controversy, a change
in the facts can render an issue or entire case moot.” In re Moriarty, 156 Vt. 160, 163 (1991).
Petitioner alleged in his habeas petition that he was being unlawfully held as no timely VOP
merits hearing had been held. The VOP hearing was then held, and petitioner was in custody
serving a lawful sentence imposed by the criminal division based on its probation-violation
finding when the petition was dismissed. There is no basis for habeas relief. See Paige v. State,
2017 VT 54, ¶ 7, 205 Vt. 287 (recognizing that a case becomes moot when court “can no longer
grant effective relief”) (citation omitted)). Any challenges to the timing of the VOP merits
hearing can be raised in petitioner’s appeal from the criminal division’s decision.
Affirmed.
BY THE COURT:
Beth Robinson, Associate Justice
Karen R. Carroll, Associate Justice
William D. Cohen, Associate Justice