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DeGennaro v. Dolan

United States District Court, D. Massachusetts

December 4, 2018

PETER C. DEGENNARO, Petitioner,
v.
EDWARD J. DOLAN and MAURA HEALEY, Respondents.

          MEMORANDUM AND ORDER ON PETITION FOR HABEAS CORPUS

          F. DENNIS SAYLOR IV UNITED STATES DISTRICT JUDGE.

         This is 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”).

         DeGennaro 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.

         I. Background

         A. Factual Background

         Peter 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.

         The 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.

         Rather 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.

         B. State Court Proceedings

         On June 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. at 425.

         In 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.”

         The 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; Appx. 166.

         DeGennaro 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).

         C. The Petition ...


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