Fleming v. The Attorney General of the State of New York

Background

Robert Fleming, who was incarcerated at Five Points Correctional Facility and proceeded without a lawyer, filed a petition under 28 U.S.C. § 2254, the federal statute allowing a state prisoner to challenge a conviction or sentence in federal court. He challenged a 2009 New York conviction for felony criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree.

According to the opinion, Fleming pleaded guilty under an agreement requiring him to enter an 18-to-24-month MICA drug-treatment program. If he successfully completed the program, he would be permitted to return to court, withdraw his plea, and receive a conditional discharge without post-release supervision. Fleming did not provide facts about whether he entered or completed the program. He stated that the plea agreement was “broken” and that he was instead sentenced as a predicate felon to three and a half years in prison followed by two years of post-release supervision.

Fleming argued that the 2009 judgment was unlawful because the plea agreement was broken. He also claimed that his guilty plea was involuntary, that the trial court lacked jurisdiction, and that he was denied the right to testify before the grand jury and that no grand jury indictment existed.

Possible filing deadline problem

A petition under § 2254 generally must be filed within one year of the latest of several specified events, including when the conviction becomes final or when the facts supporting the claim could have been discovered with reasonable diligence. Certain properly filed state post-conviction proceedings can pause that one-year period while they are pending, but filings made after the period expires do not restart it.

Fleming placed his petition in the prison mail collection box on July 12, 2020. The court noted that the 2009 judgment had been entered more than a decade earlier. Fleming alleged that he appealed and filed post-conviction motions, but he did not provide the dates of those proceedings or explain when they were resolved. The court therefore could not determine when the judgment became final or whether any state proceedings paused the federal filing deadline. The court also noted that the record did not establish whether Fleming had fully presented his claims to the state courts.

Order to provide a declaration

The court directed Fleming to file a declaration within 60 days showing why the petition should not be denied as time-barred. The declaration must include information about the dates and resolutions of his state post-conviction applications, appeals, and requests for permission to appeal, as well as when he received notice of the state-court decisions. The court also directed him to allege facts supporting diligent pursuit of his rights and an extraordinary circumstance that prevented timely filing, which are relevant to equitable tolling—the possible extension of a filing deadline in appropriate circumstances.

The court stated that if Fleming timely filed a proper declaration, it would review the declaration and could order the respondent to answer. If he failed to comply and could not show good cause for that failure, the petition would be denied as time-barred. The court did not require the respondent to answer at this stage.

COVID-19 request

Fleming separately asked for “compassionate release” because of concerns about COVID-19. The court declined to address that request in this challenge to the 2009 narcotics conviction and stated that Fleming could try to raise it in his pending federal petition concerning his 2013 murder convictions.

Disposition

The court directed Fleming to file the declaration within 60 days and did not yet deny the petition or reach the merits of his challenges to the 2009 conviction.