United States District Court, D. Massachusetts
CARL M. MARCHETTI, Petitioner,
CAROL H. O'BRIEN, Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION
A. O'Toole. Jr. United States District Judge
magistrate judge to whom this matter was referred has filed a
Report and Recommendation (dkt. no. 28) ("R&R")
recommending that the respondent's motion to dismiss the
petitioner's petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 (dkt. no. 15) be granted.
The R&R further recommends that the petitioner's
motions for injunctive relief, bail, and a stay and abeyance
of his petition to permit him to exhaust his state court
remedies (dkt. nos. 17, 19, 21) be denied. The petitioner
filed a response to the R&R (dkt. no. 31).
reviewed the relevant pleadings and submissions, I approve
and ADOPT the magistrate judge's recommendation in its
entirety. Accordingly, the respondent's Motion to Dismiss
(dkt. no. 15) is GRANTED. The petitioner's Motion for a
Temporary Restraining Order and Preliminary Injunction and
Request for Emergency Hearing (dkt. no. 17), Motion
Requesting Bail Pending Review of a Petition for Writ of
Habeas Corpus (dkt. no. 19), and Motion for Stay and Abeyance
(dkt. no. 21) are DENIED.
this Court finds that no certificate of appealability should
issue because the petitioner has failed to show that
reasonable jurists would find it debatable whether he had a
valid constitutional claim or whether this Court was correct
in this procedural ruling. See 28 U.S.C. § 2253(c);
Slack v. McDaniel. 529 U.S. 473, 478 (2000).
AND RECOMMENDATION ON RESPONDENT CAROL H. O'BRIEN'S
MOTION TO DISMISS, AND PETITIONER CARL M. MARCHETTI'S
MOTION FOR A STAY AND ABEYANCE, MOTION FOR INJUNCTIVE RELIEF,
AND MOTION REQUESTING BAIL (DKT. NOS. 15, 17, 19, AND
L. Cabell, U.S.M.J.
Carl Marchetti ("the petitioner" or
"Marchetti") was convicted in state court on
several counts of receiving stolen property and was sentenced
to a term of incarceration. He appealed on several grounds
and the matter is presently pending before the Massachusetts
Appeals Court. Commonwealth v. Marchetti,
2015-P-1622 (Mass. App. Ct.). He also filed a habeas
petition with this Court, raising the same arguments as those
raised in the pending state court appeal. That backdrop
frames the four pending motions. First, respondent Carol
O'Brien, the Commissioner of the Department of
Corrections ("the respondent"), correctly notes
that the petitioner has not yet exhausted his state court
remedies and moves on that ground to dismiss the
habeas petition. (Dkt. No. 15). The petitioner
concedes he has failed to exhaust his claims but argues that
the solution is to hold the federal proceeding in abeyance
until the state litigation has been resolved, and he thus
moves to stay this federal proceeding. (Dkt. No. 17). And, to
avoid having to continue serving what he deems to be an
unconstitutional sentence, the petitioner moves to enjoin the
respondent from executing the judgment of conviction, and to
be released on bail. (Dkt. Nos. 19, 21). For the reasons that
follow, I recommend that the respondent's motion to
dismiss be granted and that the petitioner's three
motions be denied.
2010, the petitioner was charged with six counts of receiving
stolen property. (Dkt. No. 16-1, pg. 1). On July 23, 2012, he
appeared with counsel in the Barnstable Superior Court to
plead guilty to the charges. The trial judge initially
accepted the petitioner's guilty plea on the record, but
ultimately rejected it due to the petitioner's behavior,
and scheduled the case for trial. (Dkt. No. 16-5, pgs.
13-19). On January 28, 2013, the jury convicted the
petitioner on five out of six counts of receiving stolen
property and the petitioner was subsequently sentenced to a
term of incarceration. (Dkt. No. 16-1, pgs. 10-13).
petitioner timely appealed both his conviction and sentence.
In June of 2013 the Massachusetts Appeals Court stayed his
appeal pending the outcome of a restitution hearing in the
trial court. The restitution hearing was still ongoing in
January of 2014, when the petitioner obtained new counsel.
New counsel moved to vacate the petitioner's conviction
on the ground that the trial court's decision to force
him to stand trial after he had pled guilty violated double
jeopardy principles. (Dkt. 16-1, pgs. 11-13).
Appeals Court shortly thereafter lifted the stay on the
petitioner's appeal but in February of 2014 granted the
Commonwealth's motion to re-stay the appeal in light of
new counsel's just-filed motion for a new trial. The
Appeals Court also asked the petitioner to provide monthly
status updates on the trial court proceedings. (Dkt. 16-2,
April 11, 2014, the trial judge denied the petitioner's
motion for a new trial. The petitioner appealed the denial of
the motion but also subsequently filed a second motion for a
new trial, advancing the same double jeopardy argument. The
petitioner also asked that the trial judge be recused. On
November 19, 2014, the trial judge denied the
petitioner's motion. (Dkt. 16-1, pgs. 13-15).
petitioner had as requested been filing monthly status
reports with the Appeals Court through early November, but
failed to file status reports for December 2014 or January
2015, and thus never informed the Appeals Court that he had
moved again for a new trial or that the trial court had
denied his motion. On February 19, 2015, the Appeals Court,
bereft of any current information, dismissed the
petitioner's appeal for lack of prosecution and ...