United States District Court, D. Massachusetts
CHARLES N. DIORIO, Petitioner,
v.
MICHAEL RODRIGUES, Respondent.
MEMORANDUM AND ORDER ON PETITION FOR WRIT OF HABEAS
CORPUS (DOC. NO. 9)
LEO T.
SOROKIN UNITED STATES DISTRICT JUDGE
Charles
N. Diorio, a prisoner 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. He challenges the admission of evidence he
alleges was obtained in violation of his Fourth Amendment
rights, the admission of “other bad acts”
evidence, and a state trial court ruling he says prevented
him from allocuting at his sentencing. The respondent has
opposed the petition. As explained below, Diorio’s
petition is DENIED.
I.
BACKGROUND
Following
a jury trial, Diorio was convicted on December 18, 2013 of
armed kidnapping, witness intimidation, carrying a firearm
without a license, unlawfully possessing ammunition, and
furnishing a false name to police. Commonwealth v.
Diorio, 81 N.E.3d 825, *1 (Mass. 2017) (unpublished);
Doc. No. 9 at 1;[1] S.A. at 1-3, 11.[2] He was sentenced the next
day to fifteen-to-twenty years in state prison, followed by
another year in county jail. Doc. No. 9 at 1; S.A. at 11.
The
charges arose from a series of events that began on July 2,
2011 in Suffolk County and ended the next morning in Norfolk
County. The Massachusetts Appeals Court (“MAC”)
described the events as follows:
Background. [Diorio], who had an outstanding
California parole warrant, used a series of aliases during
his time in Massachusetts. He lived in a rooming house in
Chelsea, and between September, 2010, and May, 2011, dated
the victim of the crimes that led to the present appeal. The
victim moved into an apartment in Braintree in January, 2011,
and shortly thereafter bought a firearm at [Diorio]’s
urging. The victim ended their relationship in May, 2011, and
returned to her apartment to discover that [Diorio] had
removed all of his belongings, except for a pair of shoes.
She did not look for the firearm that [Diorio] had urged her
to purchase.
1. Events in Suffolk County.[3] On the night of July 2,
2011, a resident-employee of the rooming house where [Diorio]
lived in Chelsea saw [Diorio] holding a handgun outside of
his room. He told [Diorio], whom he knew by a different name,
that he was going to call the police, and, while he was
walking away, [Diorio] fired three shots at him, striking him
once in the arm. The victim of this shooting called the
police, who responded quickly, recovered shell casings and a
holster for a semiautomatic firearm, and spoke to a nearby
witness who identified [Diorio] as a man who had walked by
his vehicle while cocking a silver handgun. Police recovered
a live round of ammunition next to that car of the same
type[4]
as the shell casings found inside. A different resident of
the rooming house also recovered [Diorio]’s wallet,
which was given to police and identified [Diorio] by his true
name, Charles Diorio.
2. Events in Norfolk County. Around the time that
Chelsea police were investigating the area around the rooming
house shooting, [Diorio] arrived at his former
girlfriend’s apartment in Braintree. When she answered
the door, he forced his way in and was
“agitated.” She testified that [Diorio] pointed
the pistol that she had purchased at her and told her that he
had spent much time thinking about killing her. [Diorio]
remained at the apartment, making her lie on the bed with him
while keeping one arm around her neck and the other holding
the pistol. He told her that he had “messed up”
in Chelsea. [Diorio] eventually fell asleep, and the victim
was able to escape and had a friend drive her to the
Braintree police station. [Diorio] was later arrested while
exiting the victim’s apartment building, and inside the
apartment police found a latex glove, the victim’s
pistol that she had seen [Diorio] possess, a fully loaded
magazine not loaded into the firearm, and four additional
loose bullets.
Diorio, 81 N.E.3d at 825, *1.
During
a pretrial hearing the day before jury selection began,
Diorio’s counsel notified the trial court that Diorio
“wishe[d] to make a statement to the jury . . . in the
form of an opening statement.” S.A. at Tab 4, p.64. The
trial court denied the request. Id. Diorio did not
testify, nor did he address the trial court during his
sentencing hearing. See generally S.A. at Tabs 9,
11.
Diorio
filed a timely notice of appeal. S.A. at 11. In his brief to
the MAC, his counsel raised two issues: whether the evidence
and the jury instructions at trial had constructively amended
the witness intimidation charge; and whether Diorio’s
right to due process had been violated by the admission of
evidence about the shooting in Suffolk County. S.A. at 29,
42-60. Diorio’s appellate counsel included seven
additional issues in his brief to the MAC “at
[Diorio]’s insistence, ” pursuant to
Commonwealth v. Moffett, 418 N.E.2d 585 (Mass.
1981). S.A. at 29. Those issues were: whether admission of
the Suffolk County evidence denied Diorio his right to
counsel; whether evidence of a photo array and the resulting
identification were erroneously admitted; whether evidence
seized from Diorio’s room was found in an unlawful
search and subject to exclusion; whether Diorio was denied
his right to represent himself; whether evidence that Diorio
was a fugitive from justice should have been excluded;
whether Diorio’s right to a fair trial was infringed by
a police witness appearing in uniform; and whether the trial
judge abused her discretion by permitting a juror to make an
unsupervised telephone call. S.A. at 30-31, 61-74. Diorio
submitted a pro se brief expanding on the Moffett
claims. S.A. at 135-91.
The MAC
affirmed in an unpublished decision on March 24, 2017,
discussing and rejecting both challenges raised and endorsed
by Diorio’s appellate counsel. Diorio, 81
N.E.3d at 825, *2-3. Additionally, the MAC
“considered” the seven Moffett claims
“and reject[ed] each of them, ” “briefly
address[ing] some of” them and finding the others did
not merit discussion. Id. at 825, *3 & n.6.
Through
the same appellate counsel, Diorio applied to the Supreme
Judicial Court (“SJC”) for further appellate
review. S.A. at 341. In his application, he identified three
“points as to which further appellate review [wa]s
sought”: 1) whether the warrantless seizure and search
of Diorio’s wallet were unconstitutional; 2) whether
the admission of evidence regarding the Suffolk County events
violated Diorio’s right to a fair trial; and 3) whether
the trial court had erred in prospectively denying Diorio the
right to speak in mitigation of his sentence. S.A. at 353-63.
The SJC denied Diorio’s request for further review on
September 14, 2017. Commonwealth v. Diorio, 94
N.E.3d 394 (Mass. 2017) (table). Diorio did not seek
certiorari in the United States Supreme Court.
In
December 2018, Diorio filed a timely federal habeas petition,
claiming:
1) His Fourth Amendment rights were violated when the trial
judge admitted evidence found inside a wallet recovered
during a search of Diorio’s room;
2) His Sixth Amendment rights were violated when the trial
judge prohibited Diorio from allocuting at his sentencing;
and
3) His Fifth and Fourteenth Amendment rights were violated
when the trial judge admitted evidence “from a separate
yet related indictment from another county.”
Doc. No. 9 at 6-14.[5] Diorio’s claims have been fully
briefed and are ripe for disposition.
II.
LEGAL STANDARDS
A.
Procedural Default
A state
prisoner is entitled to federal habeas relief only if he has
exhausted his available remedies in state court. 28 U.S.C.
§ 2254(b); see O’Sullivan v. Boerkel, 526
U.S. 838, 839 (1999). Failure to exhaust may result in
procedural default of federal claims for habeas purposes.
Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991).
Even where a petitioner has fairly presented his federal
claims in state court, procedural default occurs if the state
court refuses to address such claims on the merits because of
“a state-law ground that ‘is independent of the
federal question and adequate to support the
judgment.’” Cone v. Bell, 556 U.S. 449,
465 (2009) (quoting Coleman, 501 U.S. at 729);
accord Janosky v. St. Amand, 594 F.3d 39, 44 (1st
Cir. 2010); see Martinez v. Ryan, 566 U.S. 1, 9
(2012) (“[A] federal court will not review the merits
of claims, including constitutional claims, that a state
court declined to hear because the prisoner failed to abide
by a state procedural rule.”).
Massachusetts
law imposes “a routinely enforced, consistently applied
contemporaneous objection rule.” Burks v.
Dubois, 55 F.3d 712, 716 (1st Cir. 1995); see
Commonwealth v. Lavoie, 981 N.E.2d 192, 197 n.8 (Mass.
2013); Mass. R. Crim. P. 22. The rule is “firmly
established and consistently followed, ”
Martinez, 566 U.S. at 9, and the First Circuit
repeatedly has held that it constitutes “an independent
and adequate state procedural ground” barring federal
habeas review. Janosky, 594 F.3d at 44.
A
petitioner may obtain review of defaulted claims only if he
can “demonstrate cause for the default and actual
prejudice as a result of the alleged violation of federal
law, or demonstrate that failure to consider the[] claims
will result in a fundamental miscarriage of justice.”
Coleman, 501 U.S. at 750; accord Martinez,
566 U.S. at 10; Janosky, 594 F.3d at 44. To
demonstrate cause sufficient to excuse default, a petitioner
must prove “some objective factor external to the
defense impeded counsel’s [or petitioner’s]
efforts to comply with the State’s procedural
rule.” Murray v. Carrier, 477 U.S. 478, 488
(1986). “[I]neffective assistance of counsel, so severe
that it violates the Sixth Amendment, may constitute cause to
excuse a procedural default, ” but only if “the
petitioner exhausted his ineffective assistance claim in
state court.” Janosky, 594 F.3d at 44 (citing
Murray, 477 U.S. at 488-89). To show prejudice, a
petitioner must demonstrate ...