United States District Court, D. Massachusetts
PETER C. DEGENNARO, Petitioner,
EDWARD J. DOLAN and MAURA HEALEY, Respondents.
MEMORANDUM AND ORDER ON PETITION FOR HABEAS
DENNIS SAYLOR IV UNITED STATES DISTRICT JUDGE.
an action by a former state prisoner, now on probation,
seeking a writ of habeas corpus pursuant to 28 U.S.C. §
2254. Petitioner Peter C. DeGennaro was convicted in
Middlesex County Superior Court on five counts of fiduciary
embezzlement under Mass. Gen. Laws ch. 266, § 57. The
Massachusetts Appeals Court affirmed his conviction and the
Supreme Judicial Court then denied his application for leave
to obtain further appellate review (“ALOFAR”).
contends that his conviction was obtained in violation of his
constitutional right to due process. Respondents Edward J.
Dolan, the Commissioner of Probation, and Maura Healey, the
Attorney General, have moved to dismiss the petition,
contending that the single claim raised in the petition was
not exhausted in the state courts. For the following reasons,
the motion to dismiss will be granted.
DeGennaro and a co-defendant, Charlene Connors, were engaged
in the construction and improvement of residential homes
through various business entities. Commonwealth v.
DeGennaro, 84 Mass.App.Ct. 420, 421 (2013). DeGennaro
held himself out as the president and manager of three
companies associated with such projects. Id. at 422.
Connors served as the bookkeeper for all three companies, as
well as the co-manager of one and a signatory for the bank
accounts of the other two. Id.
transactions that gave rise to the conviction involved
arrangements with two different home purchasers. See
Id. at 422-25. Each customer provided a deposit check to
DeGennaro to go toward the construction of a new home, as
well as additional advance payments pursuant to purchase and
sale agreements presented to the purchasers by DeGennaro.
See Id. The purchase and sale agreements indicated
that the payments would be held in escrow. See id.
than placing the money into a certified escrow account,
DeGennaro deposited the checks into checking accounts
maintained by two of his three business entities. See
Id. Connors had access to both accounts, and evidence
established that she managed the finances and paperwork of
DeGennaro's multiple entities. See Id. at 424,
434. During the period that construction was supposed to be
taking place, DeGennaro and Connors depleted the two accounts
by writing multiple checks payable to “themselves,
‘cash,' other business entities, and other
individuals.” Id. at 424. In both cases, the
promised construction was never performed and the deposits
were not returned. See id.
State Court Proceedings
17, 2010, a Superior Court jury found both DeGennaro and
Connors guilty of five counts of fiduciary embezzlement under
Mass. Gen. Laws ch. 266, § 57, one for each of the
deposits received from the home purchasers. See Id.
March 2013, DeGennaro appealed his conviction to the
Massachusetts Appeals Court. See Commonwealth v.
DeGennaro, 84 Mass.App.Ct. 420 (2013). His appeal raised
six claims. Two of the claims are relevant here; he claimed
(1) that the purchase and sale agreements between him and the
would be home buyers did not create a “trustee”
relationship within the meaning of Mass. Gen. Laws ch. 266,
§ 57, Appx. 43-49; and (2) that the jury instructions
mistakenly blurred the roles of an agent, fiduciary, and
trustee for purposes of Mass. Gen. Laws ch. 266, § 57,
Appx. 49-54, 59-61. His brief discussing those claims did not
argue that his due-process rights had been violated, and
indeed did not use the term “due process.”
Appeals Court affirmed the conviction. 84 Mass.App.Ct. at
420. DeGennaro then applied for leave to obtain further
appellate review from the SJC, raising those two claims and
one other (not relevant here). Appx. 178-88. As to the claim
regarding the jury instructions, he added the additional
assertion-not raised before the Appeals Court-that the
instructions violated due process because they
“conflated fact and law, lessening the
Commonwealth's burden of proof, usurping the jury's
fact finding function, and rendering the specific statutory
language superfluous.” Appx. 180. The SJC denied the
ALOFAR. Commonwealth v. DeGennaro, 466 Mass. 1111;
then filed a motion for a new trial in the Superior Court.
That motion contended that his appellate counsel rendered
constitutionally ineffective assistance because she failed to
argue on direct appeal that an “unanticipated” or
novel construction of the fiduciary embezzlement statute
would violate his right to due process. Appx. 308. That
motion was denied. He then appealed to the Appeals Court and
advanced the same claim. Appx. 208-52. The Appeals Court
affirmed, noting that such an argument would have failed on
the merits if counsel had raised it. Appx. 348-49. The court
pointed out that its interpretation of Mass. Gen. Laws ch.
266, § 57, “was based on the plain language of the
statute, the ordinary, reasonable usage of the concept and
term of an escrow agent, and a layperson's most common
understanding of the escrow function.” Appx. 349. The
SJC denied further review. Commonwealth v.
DeGennaro, 479 Mass. 1101 (2018).
The Petition ...