United States District Court, D. Rhode Island
MEMORANDUM AND ORDER
William E. Smith Chief Judge.
Cody-Allen Zab has filed a Petition under 28 U.S.C. §
2254 for Writ of Habeas Corpus by a Person in State Custody
(ECF No. 1). The State of Rhode Island has moved to dismiss
the Petition (ECF No. 6) as time-barred. The Court has
determined that no hearing is necessary. For the reasons that
follow, the Motion To Dismiss is GRANTED and the Petition is
Background and Travel
April 9, 2008, Zab pleaded guilty to one count of first
degree murder, one count of first degree arson, and one count
of fourth degree arson. He was sentenced that day to life in
prison, with parole, for the murder charge and a concurrent
term of three years probation for the fourth degree arson
count. The first degree arson charge was merged with the
murder charge for sentencing purposes. Zab did not appeal.
August 29, 2013, Zab filed a petition for postconviction
relief, alleging that he had received ineffective assistance
of counsel, in the trial court. The petition was denied,
after a hearing, on October 28, 2015. Zab filed a petition
for writ of certiorari in the Rhode Island Supreme Court,
which denied the petition on November 25, 2016.
February 7, 2018,  Zab filed the instant Petition (ECF No. 1)
pursuant to 28 U.S.C. § 2254 in this Court. The State on
March 12, 2018, filed a Motion To Dismiss (ECF No. 6) the
Petition. Zab filed a Response in Opposition (ECF No. 10)
(“Opposition”) on March 20, 2018. On April 2,
2018, the State filed a Reply Memorandum to Zab's
Opposition (ECF No. 12) (“Reply”), to which Zab
filed a second response (ECF No. 16)
(“Sur-reply”) on April 6, 2018.
this period, Zab filed several additional motions: a Motion
To Appoint Counsel (ECF No. 2), which was denied by
Memorandum and Order (ECF No. 5) issued on March 9, 2018; a
second Motion To Appoint Counsel (ECF No. 9); a Motion To
Furnish (ECF No. 11) all documents relevant to the state
postconviction proceedings; and a Motion To Proceed (ECF No.
13). The last three motions remain pending.
2254 provides that a district court “shall entertain an
application for a writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a State court only on
the ground that he is in custody in violation of the
Constitution or laws or treaties of the United States.”
28 U.S.C. § 2254(a); see also Estelle v.
McGuire, 502 U.S. 62, 68 (1991) (“In conducting
habeas review, a federal court is limited to deciding whether
a conviction violated the Constitution, laws, or treaties of
the United States.”).
to the Antiterrorism and Effective Death Penalty Act
(“AEDPA”), however, a one-year statute of
limitations applies to habeas petitions by persons convicted
in state court. See 28 U.S.C. § 2244(d)(1).
Section 2241(d)(1) provides:
(d) (1) A 1-year period of limitation shall apply to an
application for a writ of habeas corpus by a person in
custody pursuant to the judgment of a State court. The
limitation period shall run from the latest of--
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review;
(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or
laws of the United States is removed, if the applicant was
prevented from filing by such State action;
(C) the date on which the constitutional right asserted was
initially recognized by the Supreme Court, if the right has
been newly recognized by the Supreme Court and made