Rivera v. Wall

Filing 18

ORDER denying 4 Motion to Dismiss and ordering State to respond to 1 PETITION for Writ of Habeas Corpus filed by Firlando Rivera on or before 10/22/15. So Ordered by Chief Judge William E. Smith on 9/22/2015. (Jackson, Ryan)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
)
)
)
Petitioner,
)
)
v.
)
)
ASHBEL T. WALL, II,
)
)
Respondent.
)
___________________________________)
FIRLANDO RIVERA,

C.A. No. 14-23 S

ORDER
WILLIAM E. SMITH, Chief Judge.
The State of Rhode Island (the “State”) has filed a motion
to dismiss Firlando Rivera’s 28 U.S.C. § 2254 petition for writ
of

habeas

corpus

on

timeliness

grounds.

(ECF

No.

4.)

The

accuracy of the State’s accounting hinges on the correctness of
its position that a motion to reduce a sentence filed under
Rule 35

of

the

Rhode

Island

Superior

Court

Rules

of

Civil

Procedure (“Rhode Island Rule 35”) triggers collateral review,
the

filing

of

which

tolls

motion is adjudicated.

the

limitations

period

until

the

See 28 U.S.C. § 2244(d)(2); Wall v.

Kholi, 562 U.S. 545, 555-56 (2011) (holding that a motion to
reduce sentence under Rhode Island Rule 35 is an application for
collateral review under § 2244(d)(2) in a case where parties
“agree[d] that such a motion is not part of the direct review
process”).

Unlike in Kholi, however, the parties in this case do not
agree that a Rhode Island Rule 35 motion is not part of the
direct review process.

Instead, Rivera argues in his opposition

to the State’s motion to dismiss that consideration of a motion
to reduce sentence under Rhode Island Rule 35 is part of the
direct review process.

(See Rivera’s Opp’n 4-5, ECF No. 10.)

If Rivera’s position is correct, his habeas petition was timely
filed.

To support his position, Rivera relies on footnote three

from the Kholi opinion, in which the Court stated:
We can imagine an argument that a Rhode Island Rule 35
proceeding is in fact part of direct review under
§ 2244(d)(1)
because,
according
to
the
parties,
defendants in Rhode Island cannot raise any challenge
to their sentences on direct appeal; instead, they
must bring a Rule 35 motion. See, e.g., State v. Day,
925 A.2d 962, 985 (R.I. 2007) (“It is well settled in
this jurisdiction that a challenge to a criminal
sentence must begin with the filing of a [Rule 35]
motion . . . . [W]e will not consider the validity or
legality of a sentence on direct appeal unless
extraordinary circumstances exist” (internal quotation
marks omitted)); State v. McManus, 990 A.2d 1229, 1238
(R.I. 2010) (refusing to consider Eighth Amendment
challenge on direct review because “[t]o challenge a
criminal sentence, the defendant must first file a
motion to reduce in accordance with Rule 35”); see
also Jimenez v. Quarterman, 555 U.S. 113, 118-21, 129
S. Ct. 681, 685–686, 172 L.Ed.2d 475 (2009).
That
issue has not been briefed or argued by the parties,
however, and we express no opinion as to the merit of
such an argument.
Even if we were to assume that a
Rhode Island Rule 35 motion is part of direct review,
our disposition of this case would not change:
Respondent’s habeas petition still would be timely,
because the limitation period would not have begun to
run until after the Rule 35 proceedings concluded.

2

Kholi, 562 U.S. at 555 n.3. 1
Since Kholi, no court has been squarely confronted with the
issue raised in footnote 3 of the Court’s opinion: whether a
Rhode

Island

Rule

collateral, review.
issue

is

inadequate

35

motion

seeks

direct,

as

opposed

to

In addition, the parties’ briefing on this
for

this

consideration that it is due.

Court

to

give

it

the

full

Indeed, the State surprisingly

did not even address this argument in its reply brief.
For

these

reasons,

novel issue at this time.

the

Court

declines

to

consider

this

The State’s motion to dismiss on the

basis of timeliness is DENIED WITHOUT PREJUDICE, and the State
is hereby ordered to respond to Rivera’s petition on the merits.
Depending on the parties’ briefing on the merits, this Court may
request

supplemental

briefing

on

the

issue

of

timeliness,

including on the issue raised in footnote three of Kholi.

IT IS SO ORDERED.

William E. Smith
Chief Judge
Date: September 22, 2015

1

Justice Scalia concurred in all but footnote three of the
Court’s opinion.
See Wall v. Kholi, 562 U.S. 545, 561 (2011)
(Scalia, J., concurring in part).
3