Rivera v. Wall

Filing 31

MEMORANDUM AND ORDER granting 19 Motion to Dismiss. So Ordered by Chief Judge William E. Smith on 11/29/2016. (Jackson, Ryan)

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

C.A. No. 14-23 S

MEMORANDUM AND ORDER
WILLIAM E. SMITH, Chief Judge.
Before the Court is Respondent Ashbel T. Wall’s Motion to
Dismiss

Petitioner’s

28

U.S.C.

§

2254

Petition

for

Writ

of

Habeas Corpus (“Petition”) for being time-barred. (ECF No. 4.)
The

Petition

is

based

on

several

grounds,

including

but

not

limited to: ineffective assistance of counsel, attorney conflict
of

interest,

counsel’s

and

a

litany

performance

of

leading

alleged
up

to

deficiencies

and

during

in

trial

Petitioner’s

criminal trial in Providence Superior Court. (Petition 4, ECF
No. 1.)
A person in state custody has one year to file a writ of
habeas

corpus.

28

U.S.C.

§

2244(d)(1).

This

period

of

limitation begins on the date that the judgment of conviction
“became

final

by

the

conclusion

of

direct

review

or

the

expiration

of

the

§ 2244(d)(1)(A).
during

the

time

for

seeking

such

review.”

28

U.S.C.

The statute of limitations is tolled, however,

pendency

of

a

properly

filed

application

postconviction relief (“PCR”). 28 U.S.C. § 2244(d)(2).

for

A review

of the procedural history of Petitioner’s contact with the Rhode
Island state courts and this Court reveals that the Petition
was, in fact, filed after the statute of limitations had run.
Petitioner’s

state

court

convictions

for

first

degree

murder and firearm violations were affirmed by the Rhode Island
Supreme Court on November 19, 2003. State v. Rivera, 839 A.2d
497,

499

(R.I.

2003).

Petitioner’s

judgment

of

conviction

became final ninety days later, on February 17, 2004, when the
time in which Petitioner could have sought review by the United
States Supreme Court through a writ of certiorari expired. See
Kholi v. Wall, 582 F.3d 147, 150-51 (1st Cir. 2009) (citing
Jiménez v. Quarterman, 555 U.S. 113, 119 (2009)).
of

limitations

for

seeking

habeas

relief

in

The statute
this

Court,

therefore, began to run on February 17, 2004.
The limitations period was tolled, however, on February 26,
2004,

when

pursuant

to

Petitioner
Rule

35

filed
of

the

a

motion
Rhode

to

Island

reduce
Rules

his

sentence

of

Criminal

Procedure. See 28 U.S.C. § 2244(d)(2); Wall v. Kholi, 562 U.S.
545, 556 (2011).

Petitioner also filed a PCR application on
2

February 27, 2004.

The PCR was denied by a hearing justice of

the Superior Court and the denial was affirmed by the Rhode
Island Supreme Court on January 14, 2013. 1 Rivera v. State, 58
A.3d 171 (R.I. 2013).

The statute of limitations began to run

again immediately on January 14, 2013, because “[w]hen the state
courts have issued a final judgment on a state application [for
PCR], [the PCR] is no longer pending even if a prisoner has
additional time for seeking review of that judgment through a
petition for certiorari.” Lawrence v. Florida, 549 U.S. 327, 334
(2007).
Petitioner filed the pending Petition on January 13, 2014.
(ECF No. 1.)

Respondent argues that the Petition is time-barred

because it was filed more than one year after the judgment of
conviction became final.

When the eight days between the final

judgment of conviction in 2004 and the date Petitioner filed his
Rule 35 motion to reduce his sentence are added to the 364 days
that

elapsed

between

the

date

that

the

Rhode

Island

Supreme

Court affirmed the denial of Petitioner’s PCR application and
the date that Petitioner filed the pending Petition, the total
is 372 days. (Mot. to Dismiss 3, ECF No. 4.) 2

1

Defendants’ Motion

The Rule 35 motion was denied on July 21, 2004.
Petitioner filed an objection, but did not provide any
argument or authority to counter the facts and authority set
forth in Respondent’s motion to dismiss. Instead, he argued the
merits of his Petition.
3
2

to Dismiss is therefore GRANTED.
IT IS SO ORDERED.

William E. Smith
Chief Judge
Date: November 29, 2016

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