Opinion
CIVIL ACTION NO. 06-10975-RWZ.
March 23, 2007
MEMORANDUM OF DECISION
I. Background
Petitioner Artem Vaskanyan ("Vaskanyan"), was tried and convicted in Hampden County Superior Court of home invasion and assault and battery by means of a dangerous weapon and was sentenced to 30- to 35-years' imprisonment. He filed a timely notice of appeal and requested the trial transcripts. Four years later, the Commonwealth had yet to produce the requested trial transcripts.
His many requests for relief in the state court failed, and petitioner finally filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that the Commonwealth's delay in producing the trial transcripts violated his due process rights under the Fifth, Sixth and Fourteenth Amendments and requesting this court to dismiss his case. (Docket # 4). Respondent moved to dismiss the habeas petition for failure to exhaust state remedies (Docket # 9), which this court denied. Rather, in an order dated October 12, 2006, this court stayed the action until December 8, 2006 to allow the Commonwealth additional time in which to produce the trial transcripts. (Docket # 13). This court granted the Commonwealth one extension of time until February 15, 2007. (Docket # 19).
The Commonwealth has now produced the four outstanding trial transcripts. This court initially intervened to assist petitioner to obtain the requested transcripts in order to allow the state appeal to proceed. Accordingly, this court held that petitioner was exempted from the exhaustion requirement because, until that point, the "state process [was] ineffective to protect the petitioner's rights." Wells v. Marshall, 885 F. Supp. 314, 317 (D. Mass. 1995). (See 10/13/06 Order, Docket # 13).
The volumes in the case are as follows: Volume I (December 14, 2001 Trial Transcript); Volume II (December 17, 2001 Trial Transcript); Volume III (December 18, 2001 Trial Transcript); Volume IV (December 19, 2001 Trial Transcript); and the "Sentencing Volume" (January 7, 2002). On March 17, 2004, the "Sentencing Volume" was filed with the court; it is not in dispute and was not the subject of the habeas petition. On December 1, 2006, Volumes III and IV were filed with the state court. See Second Decl. of Scott A. Katz, Ex. A (Docket # 16-1). Volumes I and II were filed with the state court on February 15 and February 13, respectively. See Third Decl. of Scott A. Katz, Ex. A (Docket # 33-1).
In light of the fact that the transcripts have been produced, petitioner's habeas petition is dismissed without prejudice. Petitioner's claim is now properly presented to the state appellate courts, as is any objection to the adequacy of the transcripts produced. See Commonwealth v. McWhinney, 20 Mass. App. Ct. 444, 447 (1985) (state trial judge held a two-day hearing regarding the adequacy of proposed trial transcript).
Accordingly, petitioner's federal habeas petition is dismissed without prejudice. Petitioner may refile his federal habeas claim once that claim has been exhausted on direct appeal at the state level and petitioner's direct appeal is concluded. See 28 U.S.C. 2244(d)(1) (federal habeas petition must be filed within one year from, inter alia, "the date on which the judgment became final by the conclusion of direct review."). This dismissal does not preclude petitioner from refiling his petition. See Camarano v. Irvin, 98 F.3d 44, 46-47 (2d Cir. 1996) (a habeas petition filed after a prior petition is dismissed without prejudice for failure to exhaust state remedies is not a second or successive petition); Dickinson v. Maine, 101 F. 3d 791, 791 (1st Cir. 1996) (same).
II. Conclusion
Petitioner's writ of habeas corpus (Docket # 1) is DENIED without prejudice. Respondent's Motion for Reconsideration (Docket # 42) of this court's March 12, 2007 order allowing preservation of notes and discs is DENIED.