United States District Court, D. Massachusetts
TALWANI, UNITED STATES DISTRICT JUDGE
October 22, 2014, Petitioner was convicted of nineteen counts
of larceny over $250 in Massachusetts Superior Court. Resp.
Mot. Dismiss Ex. 1 at 9-10 [#7-1] (Massachusetts Superior
Court docket). He filed a timely notice of appeal in the
Superior Court on October 28, 2014. Id. at 10.
Thereafter, he moved for post-conviction relief in the
Superior Court, pursuant to Rule 30A of the Massachusetts
Rules of Criminal Procedure. Id. at 11-12. The court
denied Petitioner's motion for post-conviction relief,
and Petitioner filed a notice of appeal in the Superior Court
on April 28, 2015. Id. The appeals were not
immediately docketed in the Massachusetts Appeals Court.
23, 2015, Petitioner filed a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254 in Case No.
15-cv-12789-IT. On March 30, 2016, the court adopted the
Magistrate Judge's Report and Recommendation and allowed
Respondent's motion to dismiss on the ground that
Petitioner had failed to exhaust state court remedies.
Order, Kyricopolous v. Mitchell, No. 15-cv-12789-IT
(D. Mass. Mar. 30, 2016), ECF No. 58. The court noted that
“even if Petitioner were correct that the Superior
Court clerk ha[d] not processed Petitioner's appeal,
Petitioner [did] not show any steps Petitioner has taken to
pursue or perfect that appeal.” Id. at 3.The
petition was dismissed on March 31, 2016. Order of
Dismissal, Kyricopolous v. Mitchell, No. 15-cv-12789-IT
(D. Mass. Mar. 31, 2016), ECF No. 60.
April 15, 2016, Petitioner filed a Notice of Appeal.
Pet.'s Not. of Appeal, Kyricopolous v. Mitchell, No.
15-cv-12789-IT (D. Mass. Apr. 15, 2016), ECF No. 69. He
subsequently withdrew his appeal, stating that he intended to
pursue state remedies, and the United States Court of Appeals
for the First Circuit dismissed the appeal pursuant to Rule
42(b) of the Federal Rules of Appellate Procedure.
Judgment, Kyricopolous v. Mitchell, No. 15-cv-12789-IT
(D. Mass. July 22, 2016), ECF No. 78.
31, 2016, Petitioner's state-court appeal of the denial
of his motion for post-conviction relief was docketed in the
Massachusetts Appeals Court in Case No. 2016-J-0223. Resp.
Mot. Dismiss Ex. 3 at 1 [#7-3] (Massachusetts Appeals Court
docket in Case No. 2016-J-0223). An appeal of his guilty
verdict was docketed in the Appeals Court in Case No.
2016-P-0967 on July 13, 2016. Ex. 2 at 1 [#7-2]
(Massachusetts Appeals Court docket in Case No. 2016-P-0967).
The appeals were consolidated under Case No. 2016-P-0967 on
July 18, 2016. Id. A review of the Appeals Court
docket reveals that the appeals remain pending in that court
as of the date of this order.
filed the instant action on November 30, 2016, seeking habeas
corpus relief pursuant to 28 U.S.C. § 2254. Pet. [#1].
the Antiterrorism and Effective Death Penalty Act of 1996, a
state prisoner must exhaust available state remedies before
seeking a federal writ of habeas corpus, with exceptions not
relevant here. 28 U.S.C. § 2254(b)(1)(A). This
requirement “giv[es] the state the first
‘opportunity to pass upon and correct alleged
violations of its prisoners' federal rights.'”
Josselyn v. Dennehy, 475 F.3d 1, 2 (1st Cir. 2007)
(quoting Duncan v. Henry, 513 U.S. 364, 365 (1995)).
Exhaustion requires a petitioner to present, or do his best
to present, the substance of a federal habeas claim
“fairly and recognizably” to the state's
highest tribunal before seeking federal review. Janosky
v. St. Amand, 594 F.3d 39, 50 (1st Cir. 2010); see
also Adelson v. DiPaola, 131 F.3d 259, 262-63 (1st Cir.
1997) (“Exhaustion obligations mandate that a habeas
petitioner present, or do his best to present, his federal
claim to the state's highest tribunal.”). Since
Petitioner's appeals currently are pending in the
Massachusetts Appeals Court, the state's highest
tribunal-the Supreme Judicial Court-has not had the
opportunity to pass upon his claims. Because Petitioner must give
the state court the opportunity to correct the alleged
violations of his federal rights before seeking relief in
this court, Petitioner has yet to exhaust available state
court is mindful of the difficulties faced by litigants
navigating the complex rules governing habeas proceedings.
However, the court is constrained by the requirement that a
petitioner exhaust available state court remedies before
seeking habeas corpus relief in this court.
also seeks relief unrelated to his habeas petition.
Pet'r, James Peter Kyricopoulos' Mot. for Court Order
[#28]. The court does not have jurisdiction to consider such
claims as part of a habeas petition. See Nelson v.
Campbell, 541 U.S. 637, 643 (2004) (holding that
“constitutional claims that merely challenge the
conditions of a prisoner's confinement, whether the
inmate seeks monetary or injunctive relief, fall outside of
[the] core [of habeas corpus]”); see also Smith v.
Mulgrave, No. 2015-0078, 2016 WL 373953, at *3 (D.V.I.
Jan. 29, 2016) (denying, for lack of subject matter
jurisdiction, habeas petitioner's motion to enjoin the
respondent from “denying or restricting access to . . .
legal materials and the law library, ” because
“[t]hese claims challenge conditions of prison life,
but not the fact or duration of [the petitioner]'s
confinement, or the execution of his sentence” and
“even a favorable decision regarding [the
petitioner]'s claims would not necessarily imply a change
to the duration, or execution of his sentence.”
(internal quotation marks and brackets omitted)).
these reasons, 1. Respondent's Motion to Dismiss
[#7] for failure to exhaust state court remedies is ALLOWED.
Petitioner, James Peter Kyricopoulos' Motion to Be
Released Immediately [#10] and Petitioner, James
Peter Kyricopoulos' Motion to Amend Motion to Be Released
Immediately [#17] are DENIED as MOOT.
Petitioner, James Peter Kricopoulos' Motion to Amend
Grounds for the Habeas Corpus [#23] is DENIED as MOOT.
Petitioner, James Peter Kyricopoulos' Motion to
Compel [#16], Petitioner's Motion to Compel
[#19], Petitioner, James Peter Kyricopoulos' Motion
to Compel [#21], and Petitioner, James Peter
Kyricopoulos' Emergency Motion to Compel [#30] are
Petitioner, James Peter Kyricopoulos' Motion for