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Norris v. Mitchell

United States District Court, D. Massachusetts

July 1, 2019

KEVIN NORRIS, Petitioner,
v.
LISA MITCHELL, Respondent.

          MEMORANDUM AND ORDER ON RESPONDENT'S MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS AS TIME-BARRED

          F. DENNIS SAYLOR, IV UNITED STATES DISTRICT JUDGE.

         This is a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner Kevin Norris is an inmate at the Massachusetts Treatment Center. In 1992, Norris was convicted of three counts of aggravated rape, three counts of armed robbery, one count of assault with a dangerous weapon, and one count of breaking and entering.[1] He was sentenced to five concurrent terms of twenty-five to forty years in state prison. He now seeks habeas relief pursuant to 28 U.S.C. § 2254.

         Respondent Lisa Mitchell has moved to dismiss the petition, contending that Norris's petition is time-barred under 28 U.S.C. § 2244(d)(1). For the following reasons, the motion will be granted.

         I. Background

         On July 17, 1992, Norris was convicted by a Suffolk County jury of three counts of aggravated rape, three counts of armed robbery, one count of assault with a dangerous weapon, and one count of breaking and entering. (Resp. Mem. Ex. 1 at p. 6-7). He was sentenced to five concurrent terms of twenty-five to forty years in state prison for the three aggravated rape convictions and for two of the armed robbery convictions. (Id. at p. 7). He also received shorter concurrent sentences on the remaining convictions. (Id.).

         On March 7, 1996, the Massachusetts Appeals Court affirmed the convictions. Commonwealth v. Norris, 40 Mass.App.Ct. 1107 (1996). On April 29, 1996, the Supreme Judicial Court denied further appellate review. Commonwealth v. Norris, 422 Mass. 1107 (1996). Norris did not file a writ of certiorari with the United States Supreme Court.

         On May 20, 1998, Norris filed a motion for a new trial. (Resp. Mem. Ex. 1 at p. 13). On October 22, 1999, the Massachusetts Appeals Court denied his motion. Commonwealth v. Norris, 48 Mass.App.Ct. 1105 (1999). The SJC denied further appellate review on September 8, 2000. Commonwealth v. Norris, 432 Mass. 1108 (2000).

         Since September 8, 2000, Norris has filed six additional motions for a new trial, all of which have been denied or dismissed by the Massachusetts Appeals Court and the SJC. Commonwealth v. Norris, 2017 WL 384415, at *1 (Mass.App. Ct. Jan. 26, 2017).

         Norris has also filed a petition for a writ of habeas corpus in 2005, which was dismissed with prejudice on June 26, 2006, as time-barred under 28 U.S.C. § 2244(d)(1). Norris v. O'Brien, 1:05-cv-11353-MLW.

         On July 31, 2018, Norris filed this petition for a writ of habeas corpus. Respondent has moved to dismiss the petition as time-barred.

         II. Analysis

         A. Limitations Period

         Under the Antiterrorism and Effective Death Penalty Act of 1996, a state prisoner has one year from the date in which the judgment against them became final, either “by the conclusion of direct review or the expiration of the time for seeking such review, ” to file a writ of habeas corpus. 28 U.S.C. § 2244(d)(1)(A). Judgments are final at the end of the ninety-day period during which the prisoner may petition for certiorari with the United States Supreme Court. Neverson v. Farquharson, 366 F.3d 32, 36 (1st Cir. 2004).

         The statute excludes from the one-year limitations period the “time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending . . . .” 28 U.S.C. § 2244(d)(2). The statute also provides exceptions to the one-year limitations period if an untimely filing was caused by the state, new constitutional rights have been created by the Supreme Court, or new evidence has been discovered. 28 U.S.C. § 2244(d)(1)(B)-(D). In addition, equitable tolling of the limitations period may be available when “extraordinary circumstances” beyond the petitioner's control prevented timely filing of the petition. Cordle v. Guarino, 428 F.3d 46, 48 (1st Cir. 2005). To establish grounds for equitable tolling, a habeas petitioner must demonstrate both “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Riva v. Ficco, 615 F.3d 35, 39 (1st Cir. 2010) (quoting Holland v. Florida, 560 ...


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