United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON RESPONDENT'S MOTION TO
DISMISS PETITION FOR WRIT OF HABEAS CORPUS AS
DENNIS SAYLOR, IV UNITED STATES DISTRICT JUDGE.
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. 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.
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
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.
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.
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).
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).
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.
31, 2018, Norris filed this petition for a writ of habeas
corpus. Respondent has moved to dismiss the petition as
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.
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