Zab v. State of Rhode Island

Filing 17

MEMRORANDUM AND ORDER granting 6 Motion to Dismiss and dismissing 1 Petition; denying as moot 9 Motion to Appoint Counsel; denying as moot 11 MOTION to Furnish; and, denying as moot 13 MOTION to Proceed; Ruling on Certificate of Appealability. So Ordered by Chief Judge William E. Smith on 5/1/2018. (Jackson, Ryan)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
______________________________
)
)
)
)
v.
)
)
STATE OF RHODE ISLAND,
)
Respondent.
)
______________________________)
CODY-ALLEN ZAB,
Petitioner,

C.A. No. 18-070 WES

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.
hearing is necessary.

The Court has determined that no

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.
degree

arson

charge

sentencing purposes.

was

merged

with

Zab did not appeal.

the

murder

The first
charge

for

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)

1

all

documents

relevant

to

the

state

postconviction

The Petition is dated February 7, 2018, and was placed in
the prison mailing system on the same day. Therefore, the Petition
is deemed filed on that date. See Houston v. Lack, 487 U.S. 266,
270 (1988) (concluding that pleadings are deemed filed on date
prisoner relinquishes control over documents).
2

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.
U.S.C. § 2244(d)(1).

See 28

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;
3

(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 retroactively applicable
to cases on collateral review; or
(D) the date on which the factual predicate of the
claim
or
claims
presented
could
have
been
discovered through the exercise of due diligence.
Id.

Pursuant to § 2244(d)(2), “[t]he time during which a properly

filed application for State post-conviction or other collateral
review with respect to the pertinent judgment or claim is pending
shall not be counted toward any period of limitation under this
subsection.”

Id. § 2244(d)(2).

Zab’s conviction became final on April 9, 2008, the day he
pleaded guilty and was sentenced.

As noted above, he did not

appeal, under the terms of the plea agreement.
Ex. 2 at 3.)

(Mot. To Dismiss,

Therefore, the statute of limitations began to run

on April 10, 2008, and expired on April 9, 2009.

See 28 U.S.C. §

2244(d)(1)(A); Lattimore v. Dubois, 311 F.3d 46, 54 (1st Cir. 2002)
(“When a limitations period is measured in years, the last day for
instituting the action is traditionally the anniversary date of
the start of the limitations period.”).
Zab applied for postconviction relief in the trial court on
August 29, 2013.
petition.
Island

On October 28, 2015, the court denied Zab’s state

Zab’s petition for writ of certiorari to the Rhode

Supreme

Court,

seeking
4

to

appeal

the

denial

of

postconviction relief, was denied on November 25, 2016.

Although

this time generally would have tolled the AEDPA limitations period,
see 28 U.S.C. § 2244(d)(2), the statute of limitations had already
expired before Zab initiated state postconviction proceedings.
Zab argues that, based on his understanding of a Rhode Island
statute, which provides that life prisoners are deemed civilly
dead, see R.I. Gen. Laws § 13-6-1, 2 he was not aware that he could
file for habeas corpus, either at the state or federal level.
(Pet. 13; Opp’n 1.)

According to Zab:

“D[ue] to R.I.G.L. § 13-6-1

Plaintiff was under the conclusion Plaintiff could not file any
post-conviction d[ue] to the plain language of said statu[t]e —
post-conviction are civil in nature and Plaintiff was ‘civilly’
postconvictions[.]

Said

statu[t]e is leaving Petitioner subject to said time-bar.”

(Opp’n

dead

to

2

any

civil

matter

including

Section 13-6-1 states:

Every person imprisoned in the adult correctional
institutions for life shall, with respect to all rights
of property, to the bond of matrimony and to all civil
rights and relations of any nature whatsoever, be deemed
to be dead in all respects, as if his or her natural
death had taken place at the time of conviction.
However, the bond of matrimony shall not be dissolved,
nor shall the rights to property or other rights of the
husband or wife of the imprisoned person be terminated
or impaired, except on the entry of a lawfully obtained
decree for divorce.
R.I. Gen. Laws § 13-6-1.
5

1-2; see also Pet. 13.) 3
language’

of

R.I.

Gen.

The State argues that “the ‘plain
Laws

§

13-6-1

cannot

reasonably

be

interpreted as precluding inmates serving life sentences at the
Adult Correctional Institutions . . . from seeking post-conviction
relief because they are ‘“civilly” dead.’”

(Reply 1.)

The State

further contends that, even assuming Zab believed that § 13-6-1
precluded him from seeking postconviction relief “at one point in
time,” (id. at 2), “he did just that when he filed a state postconviction relief application on August 29, 2013,” (id.).
Although Zab states that he “takes issue with the State[’]s
calculation regarding the timelines,” (Sur-reply 1), his arguments
mainly focus on the merits of his claims, (Opp’n 1-2; Sur-reply
1).

Zab contends that § 13-6-1 leaves the postconviction decision

“unreasonable when Petitioner[’]s right[s] are being violated.”
(Opp’n 2.)

The Court interprets the latter statement as an

argument that the statute of limitations should be equitably
tolled.
Haines

See Estelle v. Gamble, 429 U.S. 97, 106 (1976) (citing
v.

Kerner,

404

U.S.

519,

520-21

(1972)

(noting

that

“handwritten pro se document is to be liberally construed”).

3

Zab also states that “all issues raised in petition are
and have been fully exhausted . . . in State court.” (Response in
Opposition 1 (ECF No. 10).) The issue of whether Zab has exhausted
his state remedies, however, is separate from the threshold
question of whether the Petition is timely.
6

The Supreme Court has held that Ҥ 2244(d) is subject to
equitable tolling in appropriate cases.”

Holland v. Florida, 560

U.S. 631, 645 (2010); see also Neverson v. Farquharson, 366 F.3d
32, 41 (1st Cir. 2004) (holding that, because § 2241(d)(1)’s
limitations period is not jurisdictional, it may be tolled in
appropriate circumstances).

However, equitable tolling “is the

exception rather than the rule,” Delaney v. Matesanz, 264 F.3d 7,
14

(1st

Cir.

2001),

and

is

justified

“only

in

extraordinary

circumstances,” (id.); see also id. at 15 (noting that “equitable
tolling is strong medicine, not profligately to be dispensed”).
In order to be entitled to equitable tolling, a petitioner
must

demonstrate

that:

(1)

“he

has

been

pursuing

his

rights

diligently,” and (2) “some extraordinary circumstance stood in his
way and prevented timely filing.”

Holland, 560 U.S. at 649

(internal quotation marks and citation omitted); see also Holmes
v. Spencer, 822 F.3d 609, 611 (1st Cir. 2016) (same); Lattimore,
311 F.3d 46 at 55 (noting that equitable tolling “is reserved for
cases in which circumstances beyond the litigant’s control have
prevented him from promptly filing”).

A petitioner bears the

burden of establishing a basis for equitable tolling.

Neverson,

366 F.3d at 41-42; Lattimore, 311 F.3d at 55.
Zab

has

not

established

that

postconviction rights diligently.
7

he

has

been

pursuing

his

As shown above, he waited over

five

years

before

application
Petition.

and

filing

almost

his

ten

state

years

postconviction

before

filing

his

relief
federal

He does not point to any extraordinary circumstance

beyond his control that prevented him from timely filing his
Petition.

See Delaney, 264 F.3d at 15.

the State “actively misled” him.

He does not claim that

See id.

Rather, according to

Zab, his misunderstanding of § 13-6-1 caused him to delay filing.
(Opp’n 1-2.)

Zab has not demonstrated the requisite extraordinary

circumstances to justify equitable tolling of AEDPA’s one-year
statute of limitations.
Moreover,

the

First

argument Zab makes here.

Circuit

has

squarely

rejected

the

See Lattimore, 311 F. 3d at 55 (citing

Delaney, 264 F.3d at 15) (“Ignorance of the law alone, even for
incarcerated

pro

se

prisoners,

does

not

excuse

an

untimely

filing.”); see also Neverson, 366 F.3d at 44 (citing Lattimore,
311 F.3d at 55) (noting that “pro se habeas petitioner’s ignorance
of AEDPA’s requirements does not excuse an untimely filing”);
Delaney, 264 F.3d at 15 (rejecting petitioner’s argument that
“because he was a pro se prisoner, ignorant of the applicable law,
the lower court should have tolled the limitation period” and
stating that “[i]n the context of habeas claims, courts have been
loath to excuse late filings simply because a pro se prisoner
misreads the law”) (citing cases).
8

Therefore, Zab’s contention

that his misreading of § 13-6-1 should excuse his untimely filing
fails. 4
III. Conclusion
Based on the foregoing, the Motion To Dismiss (ECF No. 6) is
GRANTED and the Petition (ECF No. 1) is DISMISSED.

Zab’s second

Motion To Appoint Counsel (ECF No. 9), Motion To Furnish (ECF No.
11), and Motion To Proceed (ECF No. 13) are DENIED as moot.
RULING ON CERTIFICATE OF APPEALABILITY
Pursuant to Rule 11(a) of the Rules Governing Section 2254
Proceedings in the United States District Courts, this Court hereby
finds that this case is not appropriate for the issuance of a
certificate of appealability (COA) because Zab has failed to make
a substantial showing of the denial of a constitutional right as
to any claim, as required by 28 U.S.C. § 2253(c)(2).

4

Zab’s other arguments have either been rejected by the
First Circuit or otherwise lack merit.
9

Zab is advised that any motion to reconsider this ruling will
not extend the time to file a notice of appeal in this matter.
See Rule 11(a), Rules Governing Section 2254 Proceedings.
IT IS SO ORDERED.

William E. Smith
Chief Judge
Date: May 1, 2018

10