Kyricopoulos v. Mitchell

Filing 58

Judge Indira Talwani: ORDER entered ALLOWING Petitioner's 54 Motion to Amend Objections; ADOPTING the 30 Report and Recommendation and the #43 Report and Recommendation; ALLOWING Respondent's 12 Motion to Dismiss; and DENYING Petitioner's 19 Motion to be Released from Custody Immediately and 22 Motion for Contempt. (DaSilva, Carolina)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
JAMES PETER KYRICOPOLOUS,
Petitioner,
v.
LISA MITCHELL,
Respondent.

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Civil Action No. 15-cv-12789-IT

ORDER
March 30, 2016
TALWANI, D.J.
This is an action pursuant to 28 U.S.C. § 2254 in which Petitioner seeks habeas corpus
relief following conviction for larceny over $250. Respondent has filed a Motion to Dismiss
[#12] the petition for failure to exhaust state court remedies. Petitioner has filed a Motion to be
Released from Custody Immediately [#19] and a Motion for Contempt [#22]. The court referred
the matter to Magistrate Judge Boal. On February 9, 2016, she issued her Report and
Recommendation [#39] recommending that the motion to dismiss be allowed and motion to be
released from custody be denied, and her Report and Recommendation [#43] recommending that
the motion for contempt be denied. Petitioner filed Objections [#46] and a Motion to Amend
Petitioner’s Objections [#54].
Upon de novo review, and after consideration of Petitioner’s Objections [#46] and
Motion to Amend Petitioner’s Objections [#54], the court adopts both the Report and
Recommendation [#39] and Report and Recommendation [#43] for the reasons set forth therein
and below.
The law is clear that, in general, “state remedies must be exhausted except in unusual

circumstances” and that federal courts rarely will “interfere with the administration of justice in
the state courts.” Rose v. Lundy, 455 U.S. 509, 515 (1982); see also 28 U.S.C. § 2254(b)(1)(A)
(“An application for writ of habeas corpus on behalf of a person in custody pursuant to the
judgment of a State court shall not be granted unless it appears that the applicant has exhausted
the remedies available in the courts of the State[.]”). Here, Petitioner claims that the state had no
probable cause to arrest him and thus violated his rights under the Fourth Amendment to the
United States Constitution. Pet. 4 [#1]. Petitioner raised this issue in state court in an amended
petition of unlawful restraint pursuant to Mass. R. Crim. P. 30A, but has not exhausted his state
court remedies by presenting the issue to the Massachusetts Appeals Court and the Supreme
Judicial Court.
The court considers further whether Petitioner may be excused from his exhaustion
requirements. Petitioner asserts that he has been denied the right of appeal. Id. at 4, 6. His
filings focus primarily on the docketing and ruling on the Amended Rule 30A Petition. By
Petitioner’s account, the Amended Rule 30A Petition was submitted to the Superior Court with
his motion for leave to file, although only the motion for leave to file was docketed on December
22, 2014. The documents Petitioner submitted with his petition suggest, however, that a copy of
that Amended Rule 30A Petition was later forwarded by Attorney Elizabeth Barrett to the Clerk
on February 13, 2015. Pet. Ex. 1 12 [#1-1]; see also id. at 14 (Docket Entry 96, “Court received
letter from Executive Office of Trial Court enclosing letter from defendant and related
attachments – received 2/25/15.”). Thus, although the Amended Rule 30A Petition was not
given a separate docket number, it now does appear to be part of the court file. Finally,
according to the docket sheet submitted by Petitioner, Judge Feeley of the Superior Court
acknowledged that the Amended Rule 30A Petition had been submitted to the Superior Court

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with the motion for leave to file, and after full consideration, denied it on April 15, 2015. Id. at
15 (Docket Entry 100).
Petitioner contends further that the “Clerk has refused to forward the Petitioner a Copy of
the Court’s Order, J. Feeley,” and Petitioner claims (presumably for this reason) that he cannot
appeal from the denial of his motion. Pet. 6. The docket sheet submitted by Respondent in
support of the motion to dismiss, however, includes a docket entry subsequent to Judge Feeley’s
denial of the Amended Rule 30A Petition showing that a Notice of Appeal was docketed on
April 28, 2015. Resp’t’s Mem. Law Supp. Mot. Dismiss Addendum 17 [#13-1]. Thus, while
Petitioner contends that he was unable to appeal the denial of the Amended Rule 30A Petition,
the docket supports Respondent’s contention in the memorandum in support of the motion to
dismiss that his “appeal of his conviction is still pending in the state courts.” Rep’t’s Mem. Law
Supp. Mot. Dismiss 4 [#13].
Petitioner asserts further that the appeal has not been processed by the Superior Court
clerk. Pet’r’s Aff. Supp. Mot. Compel 2 [#32]; see also Resp’t’s Resp. Feb. 2, 2016 Court Order,
Exs. A, B [#37-1] (showing that, although the Superior Court docket sheet states that the Notice
of Appeal was filed on April 28, 2015, no appeal has been docketed in the Appeals Court as of
February 2, 2016). But even if Petitioner were correct that the Superior Court clerk has not
processed Petitioner’s appeal, Petitioner has not shown any steps Petitioner has taken to pursue
or perfect that appeal. Nor does the record here suggest that Petitioner has presented his claim of
purported inaction by the clerk to the state court by motion or petition, let alone any failure by
the state court in addressing such motion or petition. Accordingly, this case does not present the
rare circumstance where exhaustion may be excused.
In light of the foregoing, Petitioner’s Motion to Amend Petitioner’s Objections [#54] is

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ALLOWED and has been considered together with Petitioner’s Objections [#46]. After
consideration of these objections, the court adopts both the Report and Recommendation [#39]
and the Report and Recommendation [#43]. Respondent’s Motion to Dismiss [#12] is
ALLOWED and Petitioner’s Motion to be Released from Custody Immediately [#19] and
Motion for Contempt [#22] are DENIED.
IT IS SO ORDERED.
Date: March 30, 2016

/s/ Indira Talwani
United States District Judge

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