United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON PETITION FOR A WRIT OF HABEAS
DENNIS SAYLOR IV UNITED STATES DISTRICT JUDGE.
a pro se petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. Petitioner James
Kyricopoulos was convicted of nineteen counts of larceny over
$250 and sentenced to a term of imprisonment of three to five
years. He seeks a writ of habeas corpus on the grounds that
he was arrested without probable cause, denied a fair trial,
denied due process, and denied equal protection. He has filed
several other motions in this case, including two motions for
immediate release, a motion to compel, and a motion for an
evidentiary hearing. Respondent has filed a motion to dismiss
the petition for failure to exhaust state remedies.
reasons given below, respondent's motion to dismiss will
be granted, and petitioner's motions will be denied as
April 22, 2013, James Kyricopoulos was indicted for nineteen
counts of larceny over $250 in violation of Mass. Gen. Laws
ch. 266, § 30(1). (Resp't's Mot. to Dismiss Ex.
1 at 1, 4). On October 22, 2014, an Essex County jury found
him guilty on all counts. (Id. Ex. 1 at 9-10). The
state court sentenced him to three to five years in state
prison, with eight years of probation following his release.
(Id. Ex. 1 at 10).
his sentencing, Kyricopoulos made several requests for relief
from the trial court. On October 28, 2014, the day after
sentencing, he filed a notice of intent to appeal.
(Id.). The same day, he filed a renewed motion for a
required finding of not guilty pursuant to Massachusetts Rule
of Criminal Procedure 25, which the trial judge immediately
denied. (Id.). On October 29, 2014, he filed a
petition for release from unlawful restraint, which he
amended on December 22. (Id.). The amended petition
was denied on April 15, 2015. (Id. Ex. 1 at 12). In
the meantime, on January 5, 2015, he filed a motion to revise
and revoke his sentence, which was denied on February 23,
2015. (Id. Ex. 1 at 11). He filed his notice of
appeal on April 28, 2015. (Id. Ex. 1 at 12).
reasons that are unclear, two different appeals were docketed
in the Massachusetts Appeals Court; they were consolidated on
July 18, 2016. (Id. Ex. 2 at 1-2, Ex. 3 at 2).
Pursuant to Massachusetts Rule of Appellate Procedure 19(a),
Kyricopoulos's appeal brief and appendix were due forty
days later, or on August 27, 2016. Mass. R. App. P. 19(a);
(Resp't's Mot. to Dismiss Ex. 2 at 2). Instead of
filing a brief, on August 1, 2016, he filed a motion to stay.
(Id.). The Appeals Court granted the motion to stay
in order to allow him to pursue relief in the trial court and
ordered him to file a status report by September 2, 2016.
September 14, 2016, the Appeals Court continued the stay
until October 14, 2016, because Kyricopoulos's motion to
compel the trial court to produce transcripts of certain
pre-trial conferences was outstanding. (Id.). As of
October 14, 2016, no status report had been filed, and on
November 10, 2016, the Appeals Court warned Kyricopoulos that
if he did not file a status report within thirty days, his
appeal would be dismissed for lack of prosecution.
(Id.). On November 30, 2016, December 12, 2016, and
January 5, 2017, he filed status reports concerning the
outstanding trial transcripts. (Id. Ex. 2 at 3). On
January 9, 2017, the Appeals Court continued the stay until
March 6, 2017. (Id.). On March 13, 2017,
Kyricopoulos filed a status report that the Appeals Court
deemed “inappropriate.” (Id.). On March
23, 2017, the Appeals Court notified him that an appropriate
status report was due by April 6, 2017, and that failure to
file a report by that date would result in dismissal of the
appeal. (Id.). On May 2, 2017, the Appeals Court
provided notice preceding dismissal of the appeal.
(Id. Ex. 2 at 4). On June 7, 2017, the appeal was
dismissed for lack of prosecution. (Id.).
the pendency of his appeal, Kyricopoulos filed three
petitions with the Supreme Judicial Court of Massachusetts
for a writ of mandamus pursuant to Mass. Gen. Laws ch. 211,
§ 3. (See Resp't's Mot. to Dismiss Ex.
1 at 13, Ex. 4). The first petition was filed on August 10,
2016, and was denied on September 6, 2016. (Kyricopoulos
v. Driscoll, No. SJ-2016-0342 (Mass.)). The second
petition was filed on December 22, 2016, and was denied
without hearing on February 2, 2017. (Kyricopoulos v.
Appeals Court, No. SJ-2016-0520 (Mass.)). The third
petition was filed on April 28, 2016; it sought the
production of transcripts and the expedition of his appeal,
among other things. (Kyricopoulos v. Clerk of Appeals
Court, No. SJ-2017-0182, (Mass.); Resp't's Mot.
to Dismiss Ex. 4, Ex. 5 at 2). That petition was denied as
moot on June 12, 2017, presumably because the transcript had
been provided in the Essex Superior Court and the appeal had
been dismissed. (Resp't's Mot. to Dismiss Ex. 4 at
2); see Stow v. Commonwealth, 423 Mass. 1002, 1003
(Mass. 1996) (holding that criminal defendant's request
in mandamus proceeding for order compelling preparation of a
transcript was moot after transcript had been
filed the present habeas corpus petition on September 18,
2017. The petition is based on six grounds: (1)
that he was arrested without probable cause; (2) that he was
denied a fair trial; (3) that he was denied due process; (4)
that he was denied equal protection; (5) that he was denied
due process in obtaining pre-trial and trial transcripts; and
(6) that he was denied equal protection of the Administrative
Office of the Trial Court's Order no. 09-2, Time
Standards for Completion of Transcripts in Civil and Criminal
Cases, in obtaining the requested transcripts within 120
days. (Am. Pet. at 6 & Ex. D). The respondent filed a
motion to dismiss on the ground that petitioner had failed to
exhaust his state remedies. (Resp't's Mem. in Supp.
Mot. to Dismiss at 5). Kyricopoulos subsequently filed two
identical amended petitions for habeas relief under the same
grounds. (Docket Nos. 18, 24).
Standard of Review
applying for a writ of habeas corpus, a petitioner must
exhaust his available remedies in state court. 28 U.S.C.
§ 2254(b)(1)(A). Specifically, the petitioner must
demonstrate that he has “exhausted his state remedies
by having first presented the federal constitutional issue to
the state courts for their decision.” Goodrich v.
Hall, 448 F.3d 45, 47 (1st Cir. 2006). Where a claim
raised in a petition for a writ of habeas corpus is
unexhausted, “‘it would be unseemly in our dual
system of government for a federal district court to upset a
state court conviction without an opportunity to the state
courts to correct a constitutional violation.'”
Rose v. Lundy, 455 U.S. 509, 518 (1982) (quoting
Darr v. Burford, 339 U.S. 200, 204 (1950)). For a
claim to be exhausted, the claim must have been fairly
presented to the state court. Baldwin v. Reese, 541
U.S. 27, 30-32 (2004). That requires the petitioner to have
presented “both the factual and legal
underpinnings” of his claims to the state court.
Nadworny v. Fair, 872 F.2d 1093, 1096 (1st Cir.
1989) (calling the exhaustion principal “the
disputatious sentry which patrols the pathways of
state-court appeal was dismissed for lack of prosecution
because he did not file an appropriate status report-or
respond in any way to the May 2, 2017 notice preceding
dismissal-as ordered by the Massachusetts Appeals Court.
(Resp't's Mot. to Dismiss Ex. 2 at 3-4). Petitioner
did not seek further review of the dismissal of his appeal
from the Supreme Judicial Court. Because neither the Appeals
Court nor the Supreme Judicial Court had the opportunity to
address any alleged constitutional violations, petitioner ...