United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON PETITION FOR HABEAS CORPUS
F. Dennis Saylor IV United States District Judge
This is an action by a state prisoner, currently on parole, seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner Charlene Connors was convicted in Middlesex County Superior Court on five counts of fiduciary embezzlement under Mass. Gen. Laws ch. 266, § 57. She was sentenced to concurrent terms of three to six years in state prison on two counts, and a concurrent ten-year term of probation on and after her prison sentence on the remaining three counts. The Massachusetts Appeals Court affirmed her conviction and the Supreme Judicial Court then denied her application for leave to obtain further appellate review (“ALOFAR”).
Connors has filed a petition for habeas relief, contending that her conviction was obtained in violation of her Fourteenth Amendment right to due process and her Sixth Amendment right to trial by jury on the grounds of insufficient evidence and improper jury instructions. Respondent Massachusetts Parole Board has opposed her petition, contending that Connors has not demonstrated that the result of the decision was contrary to, or an unreasonable application of, Supreme Court case law. For the following reasons, the petition will be denied.
A. Factual Background
Connors and a co-defendant, building contractor Peter DeGennaro, were engaged in the construction and improvement of residential homes through various business entities. Commonwealth v. DeGennaro, 84 Mass.App.Ct. 420, 421 (2013). DeGennaro held himself out as the president and manager of three companies associated with such projects. Id. at 422. Connors served as the bookkeeper for all three companies, as well as the co-manager of one and a signatory for the bank accounts of the other two. Id.
The transactions that gave rise to Connors’s conviction involved arrangements with two different home purchasers. See Id. at 422-25. Each customer provided a deposit check to DeGennaro to go toward the construction of a new home, as well as additional advance payments pursuant to purchase and sale agreements presented to the purchasers by DeGennaro. See Id. The purchase and sale agreements indicated that the payments would be held in escrow. See id.
Rather than placing the money into a certified escrow account, DeGennaro deposited the checks into checking accounts maintained by two of his three business entities. See Id. Connors had access to both accounts, and evidence established that she managed the finances and paperwork of DeGennaro’s multiple entities. See Id. at 424, 434. During the period that construction was supposed to be taking place, DeGennaro and Connors depleted the two accounts by writing multiple checks payable to “themselves, ‘cash, ’ other business entities, and other individuals.” Id. at 424. In both cases, the promised construction was never performed and the deposits were not returned. See id.
B. State Court Proceedings
On June 17, 2010, a Superior Court jury found both DeGennaro and Connors guilty of five counts of fiduciary embezzlement under Mass. Gen. Laws ch. 266, § 57, one for each of the deposits received from the home purchasers. See Id. at 425. The Commonwealth contended that the purchase and sale agreements presented to both parties established DeGennaro as a fiduciary within the meaning of the statute in that he became “an express trustee created by an ‘instrument in writing, ’ or ‘any person upon whom or to whom such a trust has developed or come.’” Id. at 428 (quoting Mass. Gen. Laws ch. 266, § 57). Connors was prosecuted and convicted as a joint venturer actively participating in the misappropriation of the deposited funds. DeGennaro, 84 Mass.App.Ct. at 434.
In March 2013, Connors appealed her conviction to the Massachusetts Appeals Court. Her appeal raised four claims: “(1) that the statute is inapplicable to the [charged transactions]; (2) that the evidence could not establish her as a trustee of those customers’ deposits; (3) that the judge’s instructions wrongly excluded the requirement of an intention of permanent deprivation; and (4) that the instructions trespassed into fact finding . . . .” Id. at 434. Connors explicitly contended that the trial judge’s instructions to the jury violated (1) her Fourteenth Amendment right to due process, because the instruction relieved the Commonwealth of its burden to prove every essential element beyond a reasonable doubt, and (2) her Sixth Amendment right to trial by jury, by usurping the jury’s role as fact-finder. See Def. Br. on Appeal from Middlesex Div. of the Superior Court Dept. at 34-35, Commonwealth v. DeGennaro, 84 Mass.App.Ct. 420 (2013). She argued that her rights were violated when the trial judge instructed the jury that DeGennaro was, in fact, acting as an agent in his relationship to the purchasers, and that the first element would be met if the jury found he was acting as an agent. See id.
C. Procedural Background
Connors filed the present petition on December 18, 2014. On March 27, 2015, the Commonwealth moved to dismiss the petition on the grounds that Connors had not exhausted her state law remedies. On April 14, 2015, the Court ...