Fraiser v. Howard

Background

Damien Fraser filed a petition under Section 2254 asking the federal court to review his June 14, 2017, conviction in New York Supreme Court, Bronx County. He was incarcerated at Woodbourne Correctional Facility and filed the petition without a lawyer. The court had previously allowed him to proceed without paying the filing fee.

The opinion notes that the petition and docket originally used the last name “Fraiser.” Because the attached documents and Fraser’s signature used “Fraser,” the court directed the Clerk to correct the docket.

Potential Filing Deadline

A Section 2254 petition generally must be filed within one year from the applicable date listed in the federal habeas statute. The court stated that the New York Appellate Division affirmed Fraser’s conviction on June 12, 2018, and that the New York Court of Appeals denied leave to appeal on November 30, 2018. The conviction therefore became final on February 28, 2019, when the period for asking the United States Supreme Court to review it expired. On that timeline, the one-year deadline expired on February 28, 2020.

Fraser stated that he placed his federal petition in the prison mail system on November 17, 2021. State post-conviction proceedings can pause the federal one-year period if they were pending before that period expired, but proceedings filed after the deadline do not restart the period.

The court found the petition unclear about Fraser’s post-conviction filings. He alleged that he filed a motion under New York Criminal Procedure Law § 440.10 on January 9, 2019, but the record did not clearly show when the trial court decided that motion. The materials also referred to a post-conviction hearing in December 2019 and showed that the trial court denied another motion on July 14, 2020, with the Appellate Division denying leave to appeal on September 10, 2020.

The court could not determine whether the July 2020 denial concerned the same motion Fraser said he filed in January 2019. Even assuming that it did, the court said the one-year period would have expired on September 17, 2021—one year after the appellate decision—and Fraser submitted his federal petition about two months later. The petition therefore appeared to be barred by the filing deadline.

Order

The court granted Fraser leave to file a declaration within 60 days explaining why the petition should not be denied as time-barred. The declaration must list the dates of his state post-conviction applications and motions, the state-court decisions, any appeals or requests for permission to appeal, decisions on those matters, and when Fraser received notice of them.

The court also stated that Fraser could provide facts supporting equitable tolling, which is a possible extension of a filing deadline when a person diligently pursues his rights but an extraordinary circumstance prevents timely filing. If Fraser timely files an adequate declaration, the court may order David Howard to respond. If Fraser does not comply, cannot show good cause for noncompliance, or does not establish that the petition was timely, the court will deny the petition as time-barred. No response from Howard was required at that time.

Judge Laura Taylor Swain ruled that no certificate of appealability would issue because Fraser had not then made a substantial showing that a constitutional right was denied. She also certified that an appeal would not be taken in good faith and denied Fraser permission to proceed without paying the appellate filing fee.