Fashaw v. Griffin
- Katherine Failla
- 1:17-cv-07328
- U.S. District Court · Southern District of New York
- 2
In Fashaw v. Griffin, Magistrate Judge Moses ordered the respondent to supplement the state-court record in a pending habeas case.
The respondent was required to supplement the state-court record or explain why the missing letter could not be obtained, state a position on the exhaustion issue, and serve the order on Fashaw. Fashaw was affected because the missing letter could bear on whether issues in his petition were exhausted or procedurally barred.
What happened
In Fashaw v. Griffin, MacQuan Fashaw, who was representing himself, had a pending petition challenging his state-court conviction. The respondent had filed an answer and parts of the state-court record, including the trial transcript.
The respondent argued that Fashaw had raised only one issue when seeking review from New York’s highest court, leaving other issues unexhausted or procedurally barred from federal review. But the submitted record did not include Fashaw’s initial letter seeking permission to appeal.
Magistrate Judge Barbara Moses ordered the respondent to provide that letter by May 8, 2020, or submit evidence explaining why it was unavailable and state whether the court could decide the exhaustion issue without it. She also ordered the respondent to serve the order on Fashaw and file proof of service.
The detailed version
- Fashaw v. Griffin · No. 1:17-cv-07328
- Katherine Failla
- Apr. 24, 2020
Background
MacQuan Fashaw filed a petition asking the federal court to review his state-court conviction. The opinion states that Fashaw was proceeding without a lawyer. The respondent filed an answer on February 27, 2018, along with the state-court record and the trial transcript.
The Appellate Division, First Department, affirmed Fashaw’s conviction on December 10, 2015. The New York Court of Appeals denied leave to appeal on June 24, 2016. The respondent argued that Fashaw had asked the Court of Appeals to review only one issue that he had raised in the Appellate Division. According to the respondent, the remaining issues were either unexhausted or exhausted but procedurally barred, meaning they could not be reviewed in the federal habeas proceeding.
Missing Record
The New York Court of Appeals rules provide that a request for leave to appeal begins with a letter to the court’s clerk. After the request is assigned to a judge, the applicant may submit additional materials to that judge. The state-court record filed by the respondent included Fashaw’s later submission to Judge Jenny Rivera, dated February 16, 2016, but did not include his initial letter to the clerk.
The opinion’s footnote states that court staff learned that Fashaw apparently submitted the initial letter around January 2016, but the New York Court of Appeals had destroyed its copy under its standard document-retention practice.
Order
Magistrate Judge Barbara Moses ordered the respondent to supplement the state-court record by May 8, 2020, with a copy of Fashaw’s initial letter to the clerk of the New York Court of Appeals. If the respondent could not provide the letter, the respondent had to submit a declaration or other admissible evidence explaining why and provide a position on whether the federal court could treat any issues raised in the habeas petition as exhausted but procedurally barred without the complete record. The respondent also had to promptly serve the order on Fashaw and file proof of service.
This order addressed the completeness of the record and the exhaustion issue; it did not decide the merits of Fashaw’s habeas petition.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.