United States District Court, D. Massachusetts
CHARLES N. DIORIO, Petitioner,
MICHAEL RODRIGUES, Respondent.
ORDER ON MOTION TO DISMISS (DOC. NO. 17)
Sorokin, United States District Judge
N. Diorio, an inmate at the Massachusetts Correctional
Institution in Concord, Massachusetts, has filed a pro se
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. The respondent has moved to dismiss the
petition, arguing it presents claims that Diorio has not
exhausted in state court. Doc. Nos. 17, 18. Diorio has not
responded to the motion. Because at least some of
Diorio's claims are unexhausted, the motion to dismiss
will be ALLOWED unless Diorio elects to delete the
December 18, 2013, Diorio was convicted of armed kidnapping
and related offenses after a jury trial in Norfolk County
Superior Court. Doc. No. 9 at 1. The charges stemmed from
events that transpired after Diorio took his
ex-girlfriend's gun and used it to shoot an employee at a
rooming house where he was staying in Suffolk County.
Commonwealth v. Diorio, 81 N.E.3d 825 (Mass. App.
Ct. 2017) (unpublished). After the shooting, Diorio went to
his ex-girlfriend's apartment in Norfolk County,
threatened her with the gun, and forced her to remain there
with him for several hours. Id.; Doc. No. 17-5 at
was sentenced to fifteen-to-twenty years in state prison,
followed by another year in county jail. Diorio,
81 N.E.3d at 825; Doc. No. 9-1. He filed a timely appeal.
Doc. No. 17-1 at 11. Through counsel, he presented a total of
nine claims on direct appeal, seven of which were included
pursuant to Commonwealth v. Moffett, 418 N.E.2d 585
(Mass. 1981). His two “most notabl[e]” claims
challenged the trial court's jury instructions and the
admission of evidence related to the Suffolk County offenses.
Diorio, 81 N.E.3d at 825. The Moffett
claims included arguments that the trial court had erred in
admitting a photograph of Diorio used in a photo array after
the shooting, that evidence seized from Dioro's room in
Suffolk County should have been excluded, and that Diorio
should have been permitted to supplement his trial
counsel's opening statement by making his own remarks to
the jury. Id.
Massachusetts Appeals Court (“MAC”) rejected
Diorio's claims in a March 24, 2017 order. Id.
Diorio sought review in the Supreme Judicial Court
(“SJC”), where his counseled application for
leave to obtain further appellate review
(“ALOFAR”) raised only these issues: 1) whether
the search of Diorio's room in Suffolk County, and the
resulting seizure of his wallet and items therein, was
lawful; 2) whether evidence related to the Suffolk County
charges was properly admitted at this trial; and 3) whether
error arose from a “prospective ruling” by the
trial court that Diorio “could not make a statement in
mitigation of punishment, ” an issue the MAC did not
explicitly address. Doc. No. 17-5 at 13. The SJC's docket
does not reflect any additional pro se filings by Diorio
supplementing the issues presented for review by his counsel.
Doc. No. 17-6. On September 14, 2017, the SJC denied review.
Id. at 2.
instituted proceedings in this Court on October 22, 2018 by
filing a “motion to enlarge time” for filing a
habeas petition. Doc. No. 1. The motion reflected
Diorio's mistaken belief that he had missed the deadline
for filing a timely federal habeas petition. In fact, the
applicable limitations period continued through December 13,
2018, as the Court explained in an order denying the motion.
Doc. No. 5. Thereafter, Diorio completed the required form
presenting his federal claims and placed it in the mail on
December 12, 2018. Doc. No. 9 at 18. In his timely federal
petition, Dioro asserts the following five claims:
1) His Fourth and Fifth Amendment rights were violated when
the trial judge admitted identification evidence found inside
a wallet recovered from Diorio's room;
2) His Sixth Amendment rights were violated when the trial
judge prohibited Diorio from addressing the jury during the
defense opening statement and from allocuting at his
3) His Fifth and Fourteenth Amendment rights were violated
when the trial judge admitted evidence “from a separate
yet related indictment from another county”;
4) His Fourth and Fifth Amendment rights were violated when
the trial judge admitted evidence from a photographic array
and from a search of his room; and
5) His Sixth Amendment rights were violated when his trial
counsel failed to conduct a redirect examination of the
complainant that might have cast doubt on her credibility.
Doc. No. 9 at 6-14.
forth below, four of Diorio's claims are unexhausted