Hrycenko, v. Medeiros

Filing 27

Judge F. Dennis Saylor, IV: ORDER entered. Memorandum and Order on Petitioner's MotionTo Stay and on Respondent's Motion to Dismiss. Copy mailed to Petitioner next business day.(Pezzarossi, Lisa)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
________________________________________
PETER HRYCENKO, SR.,
Petitioner,
v.
SEAN MEDEIROS,
Respondent.

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Civil Action No.
15-13769-FDS

MEMORANDUM AND ORDER ON PETITIONER’S MOTION
TO STAY AND ON RESPONDENT’S MOTION TO DISMISS
SAYLOR, J.
This is an action by a state prisoner, currently serving a sentence at MCI-Norfolk, seeking
a writ of habeas corpus pursuant to 28 U.S.C § 2254. Petitioner Peter Hrycenko, Sr., was
convicted after a jury trial in Suffolk County Superior Court on a charge of intimidating a judge
in violation of G.L. c. 268, § 13B. He was sentenced to a term of imprisonment of three to seven
years. The Massachusetts Appeals Court affirmed his conviction and the Supreme Judicial Court
denied his application for leave to obtain further appellate review.
Hrycenko has filed a petition for habeas relief, asserting that his conviction and sentence
are unlawful on the following grounds: (1) that trial counsel provided ineffective assistance at
trial; (2) that the admission of the victim-judge’s interpretation of petitioner’s letter was
irrelevant to prove intimidation and unduly prejudicial; and (3) that the sentencing judge had no
authority to revise his sentence and inappropriately considered the possibility of
parole. Hrycenko acknowledges that he has not exhausted Claim Two in his petition and that he

is currently appealing Claim Three in the Massachusetts Appeals Court. Along with the petition
for habeas relief, Hrycenko has moved for a stay and abeyance of proceedings while he resolves
his unexhausted claims in state court. Respondent Sean Medeiros, superintendent of MCINorfolk, has moved to dismiss the petition for lack of exhaustion.
For the following reasons, the motion to stay will be DENIED and respondent’s motion
to dismiss the petition will be DENIED without prejudice.
I.

Background
A.

Factual Background

On December 20, 2007, Peter Hrycenko, Sr., appeared before Judge Kathleen Coffey in
the Boston Municipal Court. (Pet. Ex. A at 3). He pleaded guilty to a charge of operating after
suspension and received a two-year split sentence. (Id.). He was taken into custody and lodged
at the Suffolk County House of Correction at South Bay. (Id.).
While in custody, Hrycenko wrote a seven-page handwritten letter to Judge Coffey
asking for a sentence reduction. (Id. at 4). In the letter, he referred to his familiarity with Judge
Coffey’s residence and how he “ha[s] never retaliated against [her] or [her] property because it is
not who [he is].” (Id.). Judge Coffey received the letter on December 27. She promptly
informed the police. (Id.)
Hrycenko was arrested and interviewed about the letter on December 28, 2007. (Id.). He
was then indicted on charges of intimidating a judge.
Hrycenko was tried in the Massachusetts Superior Court in August 2009. (Id. at 5). That
proceeding ended in a mistrial when the jury could not reach a unanimous verdict. (Id.). On
November 12, 2009, his former counsel withdrew, and he was appointed a new attorney,
Matthew Campbell. (Id.).

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Attorney Campbell defended Hrycenko during the second trial. (Id. at 7). The jury
convicted him on March 29, 2012. He was then sentenced to state prison for a term of three to
seven years. (Id. at 2).
B.

Procedural Background

After his conviction, Hrycenko filed a motion for new trial based on a claim of
ineffective assistance of counsel. (Pet. Ex. A 1). On April 7, 2014, that motion was denied. (Id.
at 13). He also filed a motion to revise and revoke his sentence, which the trial judge did not act
upon. (Pet. 4).
Hrycenko appealed the denial of the motion for new trial to the Massachusetts Appeals
Court. That appeal raised three claims: (1) the trial court erred in denying the motion for new
trial because defense counsel at trial was ineffective when he failed to raise a defense of lack of
criminal responsibility based on mental impairment; (2) the admission of Judge Coffey’s
interpretation of the letter was irrelevant to prove intimidation and unduly prejudicial; and (3) the
trial judge misunderstood his power to revise a sentence under Mass. R. Crim. P. 29(a) and
improperly relied on the possibility of parole. (Pet. Ex. A 15-19). On May 18, 2015, the
Massachusetts Appeals Court denied the motion for a new trial and affirmed the conviction. (Id.
at 19).
Hrycenko then filed an application for leave to obtain further appellate review
(“ALOFAR”) in the Supreme Judicial Court. (Pet. 3-4). He reasserted Claims One and Three
from his previous appeal, but omitted Claim Two (concerning Judge Coffey’s interpretation of
the letter). (Id. at 4). The Supreme Judicial Court denied the ALOFAR on July 24, 2015. (Id. at
3).
On August 21, 2015, Hrycenko filed a second motion in the Superior Court to revise and

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revoke his sentence. (Resp’t Mem. 3). After a hearing, that motion was denied on December 3,
2015. (Id.). He filed a motion for reconsideration, which was denied on December 17, 2015.
(Id.).
Hrycenko filed a petition for a writ of habeas corpus in this Court on October 30, 2015.
The petition asserts that his conviction and sentence are unlawful on three grounds: (1) his
counsel provided ineffective assistance at trial; (2) Judge Coffey’s personal interpretation of the
letter was improperly admitted; and (3) the trial judge erred in revising his sentence and
considering parole. (Pet. 5-9). Hrycenko requested that the Court stay the petition and hold it in
abeyance until he has exhausted his claims in state court.
On June 17, 2016, after Hrycenko filed his original petition, he filed another appeal in the
Massachusetts Appeals Court requesting action on the motion to revise and revoke his sentence
that the trial judge did not act upon. (Docket No. 25 at 7). That appeal contends that his
sentence should be revised and revoked because (1) he received ineffective assistance of counsel
and (2) the trial judge inappropriately considered the possibility of parole when imposing the
sentence. (Id.)
Respondent Sean Medeiros has moved to dismiss the petition and opposes the motion for
a stay and abeyance.
II.

Analysis
A.

Standard of Review

Respondent filed a motion to dismiss the habeas petition under Fed. R. Civ. P. 12(b)(6)
for failure to state a claim. The Supreme Court has noted that “Rule [12] of the Rules Governing
Section 2254 Cases in the United States District Courts provides that the Federal Rules of Civil
Procedure apply ‘to the extent that they are not inconsistent with [habeas] rules.’” Banks v.

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Dretke, 540 U.S. 668, 687 (2004); Rules Governing Section 2254 Cases in the United States
District Courts;1 see also Delgado v. Dennehy, 503 F. Supp. 2d 411, 413 (D. Mass. 1989) (citing
Banks). When reviewing a motion under Rule 12(b)(6), a court “must assume the truth of all
well-plead[ed] facts and give plaintiff the benefit of all reasonable inferences therefrom.” Ruiz v.
Bally Total Fitness Holding Corp., 496 F.3d 1, 5 (1st Cir. 2007) (citing Rogan v. Menino, 175
F.3d 75, 77 (1st Cir. 1999)). “When there are well-pleaded factual allegations, a court should
assume their veracity and then determine whether they plausibly give rise to an entitlement to
relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
B.

Legal Analysis
1.

Motion for Stay and Abeyance

Before applying for a writ of habeas corpus, the petitioner must have exhausted his
available remedies in the 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) (citing 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. 23, 32 (2004). Specifically, if a claim is omitted from an ALOFAR,
then that claim is not exhausted. Clements v. Maloney, 485 F.3d 158, 168 (1st Cir. 2007).
Here, Hrycenko clearly has not exhausted all of his state remedies. In his ALOFAR,

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Rule 11, cited in Banks v. Dretke, was renumbered as Rule 12 in 2009.

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Hrycenko did not include Claim Two, the claim that Judge Coffey’s personal interpretation of
the letter was unfairly prejudicial. Furthermore, in Hrycenko’s response, he indicated that his
motion to revise and revoke sentence is pending on appeal in the Massachusetts Appeals Court.
Therefore, Hrycenko’s petition contains at least two unexhausted claims.
When a petitioner raises unexhausted claims, he may request that the federal court stay
the habeas petition and hold it in abeyance until petitioner has had time to exhaust his
unexhausted claims at the state level. Rhines v. Weber, 544 U.S. 269, 276 (2005). However, the
Court’s discretion is circumscribed, as its decision must “be compatible with AEDPA’s
purposes.”2 Id. Accordingly, “stay and abeyance should be available only in limited
circumstances.” Id. at 278. The circumstances under which a stay and abeyance is appropriate
are where:
(1) “the district court determines there was good cause for the petitioner's failure
to exhaust his claims first in state court,” (2) the “unexhausted claims are
potentially meritorious,” and (3) “there is no indication that the petitioner engaged
in intentionally dilatory litigation tactics.” In cases where these criteria are not
satisfied, the Supreme Court held that “the [district] court should allow the
petitioner to delete the unexhausted claims and to proceed with the exhausted
claims if dismissal of the entire petition would unreasonably impair the
petitioner’s right to obtain federal relief.”
Clements v. Maloney, 485 F.3d 158, 169 (1st Cir. 2007) (quoting Rhines, 544 U.S. at 277-78).
Hrycenko has not shown good cause for his failure to exhaust all of his available claims.
In neither his petition nor his response does he address or provide a rationale as to why he has
failed to exhaust Claim Two. Furthermore, he filed the appeal with the Massachusetts Appeals
Court after he filed his habeas petition. He has provided no reason or justification as to why he
did not wait until a final judgment on his current appeal, but only asks this Court to stay his

2

AEDPA is the Anti-Terrorism and Effective Death Penalty Act of 1996, codified in relevant part at 28
U.S.C. § 2254.

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habeas petition until the Appeals Court makes a decision and he has an opportunity to request
further appellate review. Therefore, Hrycenko has not shown good cause for his failure to
exhaust all of his claims. Because he has not shown good cause, the Court does not need to
consider the merits of his unexhausted claims.
2.

Motion to Dismiss Petition

When a petition contains mixed claims and a motion to stay is denied, “the court should
allow the petitioner to delete the unexhausted claims and to proceed with the exhausted claims if
dismissal of the entire petition would unreasonably impair the petitioner's right to obtain federal
relief.” Rhines, 544 U.S. at 278. Here, Hrycenko has two unexhausted claims, one of which is
currently pending in the Massachusetts Appeals Court. Accordingly, Hrycenko’s petition must
be dismissed with prejudice unless he either (1) agrees to dismiss the unexhausted claims
(forever forfeiting the right to federal habeas review of those claims), or (2) requests that the
petition be dismissed without prejudice to permit him to return to state court and pursue the
unexhausted claim. See Rose v. Lundy, 455 U.S. 509, 520 (1982); see also Neverson v.
Farquharson, 366 F.3d 32, 42 (1st Cir. 2004).3
Accordingly, the petition for a writ of habeas corpus will be dismissed unless, within 30

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Hrycenko should be aware that filing of his federal habeas petition did not toll any applicable limitations
periods under Massachusetts law, and, therefore, he may now be barred from raising the unexhausted claims in state
court because the appeals deadlines may have passed.
He should also be aware that the filing of his federal habeas petition did not toll the running of the one-year
limitations period contained in 28 U.S.C. § 2244(d). See Neverson v. Farquharson, 366 F.3d 32, 38 (1st Cir.
2004). Accordingly, any successive petition that he attempts to file in this Court (for example, after attempting to
exhaust his state remedies) may be barred as untimely.
Finally, he should be aware that if he decides to delete his unexhausted claims and proceed with his
exhausted claims, he may be prevented from filing a second petition requesting habeas review of those previously
unexhausted claims. See 28 U.S.C. § 2244(3)(A) (requiring petitioner to get authorization from the appropriate
court of appeals before filing a second or successive petition); but see Slack v. McDaniel, 529 U.S. 473 (2000)
(holding that a petitioner is not barred from bringing a second petition after the first petition was dismissed for
failure to exhaust).

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days of the date of this Order, Hrycenko files a request to dismiss the unexhausted claims in his
petition and proceed on the merits of the sole exhausted claim.
III.

Conclusion
For the reasons stated above, petitioner’s motion to stay the petition is DENIED.

Respondent’s motion to dismiss (Dkt. No. 17) is DENIED without prejudice to the re-filing of a
motion to dismiss directed to the exhausted claims if petitioner chooses to dismiss his
unexhausted claims.
So Ordered.

/s/ F. Dennis Saylor
F. Dennis Saylor IV
United States District Judge

Dated: July 26, 2016

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