FEOLE v. WALL

JACOB HAGOPIAN, United States Magistrate Judge

John Feole, pro se, an inmate incarcerated at the Adult Correctional Institutions, Cranston, Rhode Island, filed with the Court a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The Attorney General of the State of Rhode Island, designated a party respondent, has filed an Objection to the petition, seeking dismissal. This matter has been referred to me pursuant to 28 U.S.C. § 636(b)(1)(B) for a report and recommendation. For the reasons the follow, I recommend that Feole's petition for a writ of habeas corpus be denied and dismissed. I have determined that a hearing is not necessary.

In 1995, a Providence County Superior Court jury convicted the petitioner, John Feole, of extortion and usury. The Rhode Island Supreme Court affirmed his conviction on March 14, 2000. On December 6, 2000, Feole filed a motion for post conviction relief in the Rhode Island Superior Court. A Superior Court Judge denied the motion on June 29, 2001. No appeal was taken.

On January 6, 2003, Feole filed the instant petition for a writ of habeas corpus. The Attorney General filed an objection thereto. In the objection, the Attorney General seeks dismissal because the instant petition is time-barred. I agree.

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. 104-132, 110 Stat. 1217, provides for a statute of limitations for habeas petitions. See 28 U.S.C. § 2244(d). As amended by AEDPA, Section 2244(d) provides:

(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 a judgement of a State court. The limitation period shall run from the latest of-

(A) the date on which the judgement became final by the conclusion of direct review or the expiration of 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 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.

As the time limitations period applies to this case, the applicable portion of § 2244(d)(1) is subsection (A). That subsection provides that the time limitations period begins to run on the date when the conviction becomes final. As discussed in Rogers v. United States, 180 F.3d 349, 35 1-352 (1st Cir. 1999), a conviction becomes final when the Supreme Court denies an application for certiorari on direct review. When a petitioner does not seek certiorari with the Supreme Court on direct review, the conviction becomes final at the expiration of the ninety day period in which he could have filed a petition for certiorari. Carillo v. Rhode Island, 212 F.R.D. 56, 57 (D.R.I. 2002).

Here, the Rhode Island Supreme Court afflimed the petitioner's conviction on March 14, 2000. He did not seek review in the U.S. Supreme Court. Thus, his conviction became final on June 14, 2000, when the time expired to seek a writ of certiorari. Accordingly, petitioner had one year, or until June 14, 2001, in which to timely file a petition for a writ of habeas corpus in federal court. The instant petition was not filed until January 6, 2003. However, that does not end the analysis. Section 2244(d) also provides:

(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgement or claim is pending shall not be counted toward any period of limitation under this subsection.

Petitioner filed a motion for post conviction relief in the state courts on December 6, 2000. The Superior Court denied the motion on June 29, 2001. No appeal was taken. Thus, I will toll the federal habeas clock for the time period while the motion for post conviction relief was pending in the state courts.

Petitioner's federal habeas clock began to tick on June 14, 2000, when his conviction became final. The clock stopped on December 6, 2000, when he filed a motion for post conviction relief with the state courts — with 174 days on the clock. The clock restarted on June 29, 2001, when the Superior Court denied his motion. Thereafter, Petitioner had an additional 191 days in which to file the instant writ, or until January 6, 2002. He did not do so. He did not seek federal habeas relief until January 6, 2003, and thus, the instant petition is time barred and should be dismissed.

Accordingly, for the reasons stated above, I recommend that the instant petition for a writ of habeas corpus be denied and dismissed. Any objection to this Report and Recommendation must be specific and must be filed with the Clerk of Court within ten days of its receipt. Fed.R.Civ.P.72(b); Local Rule 32. Failure to file timely, specific objections to this report constitutes waiver of both the right to review by the district court and the right to appeal the district court's decision. United States v. Valencia-Copete, 792 F.2d 4 (1st Cir. 1986) (per curiam); Park Motor Mart. Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir. 1980).