United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON PETITIONER’S MOTION TO
STAY AND ON RESPONDENT’S MOTION TO DISMISS
Dennis Saylor IV United States District Judge
an action by a state prisoner, currently serving a sentence
at MCI-Norfolk, seeking a writ of habeas corpus pursuant to
28 U.S.C § 2254. Petitioner Peter Hrycenko, Sr., was
convicted after a jury trial in Suffolk County Superior Court
on a charge of intimidating a judge in violation of G.L. c.
268, § 13B. He was sentenced to a term of imprisonment
of three to seven years. The Massachusetts Appeals Court
affirmed his conviction and the Supreme Judicial Court denied
his application for leave to obtain further appellate review.
has filed a petition for habeas relief, asserting that his
conviction and sentence are unlawful on the following
grounds: (1) that trial counsel provided ineffective
assistance at trial; (2) that the admission of the
victim-judge’s interpretation of petitioner’s
letter was irrelevant to prove intimidation and unduly
prejudicial; and (3) that the sentencing judge had no
authority to revise his sentence and inappropriately
considered the possibility of parole. Hrycenko acknowledges
that he has not exhausted Claim Two in his petition and that
he is currently appealing Claim Three in the Massachusetts
Appeals Court. Along with the petition for habeas relief,
Hrycenko has moved for a stay and abeyance of proceedings
while he resolves his unexhausted claims in state court.
Respondent Sean Medeiros, superintendent of MCI-Norfolk, has
moved to dismiss the petition for lack of exhaustion.
following reasons, the motion to stay will be DENIED and
respondent’s motion to dismiss the petition will be
DENIED without prejudice.
December 20, 2007, Peter Hrycenko, Sr., appeared before Judge
Kathleen Coffey in the Boston Municipal Court. (Pet. Ex. A at
3). He pleaded guilty to a charge of operating after
suspension and received a two-year split sentence.
(Id.). He was taken into custody and lodged at the
Suffolk County House of Correction at South Bay.
in custody, Hrycenko wrote a seven-page handwritten letter to
Judge Coffey asking for a sentence reduction. (Id.
at 4). In the letter, he referred to his familiarity with
Judge Coffey’s residence and how he “ha[s] never
retaliated against [her] or [her] property because it is not
who [he is].” (Id.). Judge Coffey received the
letter on December 27. She promptly informed the police.
was arrested and interviewed about the letter on December 28,
2007. (Id.). He was then indicted on charges of
intimidating a judge.
was tried in the Massachusetts Superior Court in August 2009.
(Id. at 5). That proceeding ended in a mistrial when
the jury could not reach a unanimous verdict. (Id.).
On November 12, 2009, his former counsel withdrew, and he was
appointed a new attorney, Matthew Campbell. (Id.).
Campbell defended Hrycenko during the second trial.
(Id. at 7). The jury convicted him on March 29,
2012. He was then sentenced to state prison for a term of
three to seven years. (Id. at 2).
his conviction, Hrycenko filed a motion for new trial based
on a claim of ineffective assistance of counsel. (Pet. Ex. A
1). On April 7, 2014, that motion was denied. (Id.
at 13). He also filed a motion to revise and revoke his
sentence, which the trial judge did not act upon. (Pet. 4).
appealed the denial of the motion for new trial to the
Massachusetts Appeals Court. That appeal raised three claims:
(1) the trial court erred in denying the motion for new trial
because defense counsel at trial was ineffective when he
failed to raise a defense of lack of criminal responsibility
based on mental impairment; (2) the admission of Judge
Coffey’s interpretation of the letter was irrelevant to
prove intimidation and unduly prejudicial; and (3) the trial
judge misunderstood his power to revise a sentence under
Mass. R. Crim. P. 29(a) and improperly relied on the