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Diorio v. Rodrigues

United States District Court, D. Massachusetts

January 30, 2019

CHARLES N. DIORIO, Petitioner,
v.
MICHAEL RODRIGUES, Respondent.

          ORDER ON MOTION TO DISMISS (DOC. NO. 17)

          Leo T. Sorokin, United States District Judge

         Charles 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.[1] 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 unexhausted claims.

         I. BACKGROUND

         On 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 Ct. 2017) (unpublished).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 6-8.

         Diorio was sentenced to fifteen-to-twenty years in state prison, followed by another year in county jail.[2] 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.

         The 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.

         Diorio 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 sentencing;
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.

         As set forth below, four of Diorio's claims are unexhausted ...


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