Diorio v. Rodrigues

          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 Commonwealth v. Diorio, 81 N.E.3d 825, *1 (Mass. 2017) (unpublished); Doc.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 ...