DeGennaro v. Dolan et al
Filing
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Judge F. Dennis Saylor, IV: MEMORANDUM AND ORDER entered granting 16 Motion to Dismiss (Halley, Taylor)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
________________________________________
PETER C. DEGENNARO,
Petitioner,
v.
EDWARD J. DOLAN and
MAURA HEALEY,
Respondents.
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Civil Action No.
18-10960-FDS
MEMORANDUM AND ORDER
ON PETITION FOR HABEAS CORPUS
SAYLOR, J.
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
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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 dueprocess 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.
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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 for Habeas Corpus
DeGennaro filed the present petition on May 14, 2018. The petition asserts a single
ground: “Did the Commonwealth violate my due process rights when it constructed [sic] the
trustee embezzlement statute in a novel manner to equate escrow agents as trustees of an express
trust?”
On July 6, 2018, the Commonwealth moved to dismiss the petition on the grounds that
DeGennaro had not exhausted his state-law remedies as to that claim.
II.
Analysis
Before 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). Because petitioner has not raised the due-process claim he raises here in any state
court, it is not exhausted and thus is not reviewable in federal court.
In his motion for a new trial in state court, and in his appeal of the denial of that motion,
petitioner contended that his attorney had rendered constitutionally ineffective assistance by
failing to argue (on direct appeal) that the court’s interpretation of the embezzlement statute was
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so novel as to violate his right to due process. That claim, like all ineffective assistance claims,
was grounded in the Sixth Amendment.
By contrast, the sole claim petitioner raises here—that the state court’s interpretation of
the embezzlement statute was so novel as to violate his right to due process—is grounded in the
Fourteenth Amendment. While it is true that the ineffective assistance claim was based on his
attorney’s failure to raise the same claim that petitioner now brings himself, the relationship
between the two claims is not determinative of whether the due-process claim has been
exhausted. As courts have consistently held in a variety of contexts, “presenting a claim for
ineffective assistance of [] counsel for failure to raise a constitutional claim . . . [does] not serve
to exhaust the underlying claim for purposes of federal habeas review.” Russi v. Rozum, 2007
WL 1876533, at *3 (E.D. Pa. June 27, 2007); see also, e.g., White v. Mitchell, 431 F.3d 517 (6th
Cir. 2005) (holding that the exhaustion of a petitioner’s claim that his counsel had been
ineffective in failing to make a Batson challenge did not serve to exhaust the underlying Batson
challenge); Wilder v. Cockrell, 274 F.3d 255 (5th Cir. 2001) (same for ineffective assistance
claim concerning an attorney’s failure to make a Chambers challenge). Accordingly, the dueprocess claim raised by petitioner here is not exhausted.
Because the petition raises only an unexhausted claim, and because petitioner has neither
requested a stay nor demonstrated good cause for his failure to exhaust his state remedies, the
Court will dismiss the petition. See Rhines v. Weber, 544 U.S. 269, 278 (2005).
III.
Conclusion
For the foregoing reasons, the motion of respondents to dismiss the petition for failure to
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exhaust state-court remedies is GRANTED.
So Ordered.
/s/ F. Dennis Saylor IV
F. Dennis Saylor IV
United States District Judge
Dated: December 4, 2018
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