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Zab v. State

United States District Court, D. Rhode Island

May 1, 2018

CODY-ALLEN ZAB, Petitioner,
v.
STATE OF RHODE ISLAND, Respondent.

          MEMORANDUM AND ORDER

          William E. Smith Chief Judge.

         Petitioner 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 DISMISSED.

         I. Background and Travel

         On 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.

         On 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.

         On February 7, 2018, [1] 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.

         Throughout 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.

         II. Discussion

         Section 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.”).

         Pursuant 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 ...

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