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Marchetti v. O'Brien

United States District Court, D. Massachusetts

August 18, 2016

CARL M. MARCHETTI, Petitioner,
v.
CAROL H. O'BRIEN, Respondent.

          ORDER ADOPTING REPORT AND RECOMMENDATION

          George A. O'Toole. Jr. United States District Judge

         The 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).

         Having 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.

         Finally, 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).

         It is SO ORDERED.

         REPORT 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 21)

          Donald L. Cabell, U.S.M.J.

         Petitioner 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.

         I. RELEVANT BACKGROUND

         In 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).

         The 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).

         The 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, pgs. 2-3).

         On 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).

         The 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 ...


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