United States District Court, D. New Mexico
ORDER GRANTING PETITIONER'S MOTION FOR LEAVE TO
PROCEED PURSUANT TO 28 U.S.C. § 1915 AND ORDER TO SHOW
STEPHAN M. VIDMAR UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court on Jarrell Frazier's 28 U.S.C.
§ 2254 habeas corpus petition. [Doc. 1]. Frazier asks
the Court to vacate his felony murder conviction based on,
inter alia, ineffective assistance of counsel and due process
violations. Also before the Court is Frazier's Motion for
Leave to Proceed Pursuant to 28 U.S.C. § 1915 [Doc. 2],
which indicates he is unable to prepay the $5.00 habeas
filing fee. The Court will grant the Motion but require
Frazier to show cause why his habeas petition should not be
dismissed as untimely.
procedural history in this case is fairly complex. To better
interpret the citations in the Petition, the Court took
judicial notice of Frazier's state court criminal
dockets, Nos. D-202-CR-2002-01770 & S-1-SC-36594. See
United States v. Smalls, 605 F.3d 765, 768 n.2 (10th
Cir. 2010) (recognizing that a court may take judicial notice
of docket information from another court); United States
v. Ahidley, 486 F.3d 1184, 1192 n.5 (10th Cir. 2007)
(stating that courts have “discretion to take judicial
notice of publicly-filed records . . . concerning matters
that bear directly upon the disposition of the case at
February 20, 2004, a jury convicted Frazier of murder,
kidnapping, conspiracy to commit kidnapping, aggravated
battery, and tampering with evidence. See [Doc. 1]
at 1, 35. The state court sentenced him to life imprisonment,
plus 21 years. Id. at 1. Judgment on his conviction
and sentence was entered March 2, 2005. Id. at 1,
38. Frazier appealed to the New Mexico Supreme Court
(“NMSC”). See Id. at 2. By a mandate
issued July 2, 2007, the NMSC reversed the kidnapping charge,
affirmed the remaining convictions, and remanded the case for
resentencing. See Id. at 39. The state court entered
an Amended Judgment on October 10, 2007, which reduced the
total sentence to life imprisonment, plus nine years. See
Id. at 40; Amended Judgment and Order in No.
D-202-CR-2002-01770. Frazier did not appeal the Amended
Judgment. It therefore became final on November 9, 2007, when
the 30-day appeal period expired. See Locke v.
Saffle, 237 F.3d 1269, 1271-73 (10th Cir. 2001) (stating
that for purposes of § 2254, a conviction becomes final
upon the expiration of the appeal period); Rule
12-201(A)(1)(b) NMRA (providing that a notice of appeal must
be filed within 30 days after entry of judgment).
five months later, on April 15, 2008, Frazier filed a state
habeas petition. See [Doc. 1] at 3. The state court
initially denied the petition, but the NMSC reversed and
remanded the case for an evidentiary hearing. See
Id. at 40; Order Remanding to District Court in No.
S-1-SC-31715. The state habeas proceeding remained pending
for nearly nine years. See generally [Doc. 1] at
40-45. On March 6, 2017, the state court denied the habeas
petition. See id. at 45. Frazier applied
for review by the New Mexico Supreme Court, which was denied
by a mandate issued March 21, 2018. See Order
Denying Petition, No. S-1-SC-36594. On March 19, 2019,
Frazier filed the federal § 2254 petition. [Doc. 1].
Timeliness of the § 2254 Petition
Petitions for a writ of habeas corpus by a person in state
custody must generally be filed within one year after the
defendant's conviction becomes final. 28 U.S.C. §
2244(d)(1)(A) (2018). The one-year limitation period can be
(1) While a state habeas petition is pending, §
(2) Where unconstitutional state action has impeded the
filing of a federal habeas petition, § 2244(d)(1)(B);
(3) Where a new constitutional right has been recognized by
the Supreme Court, § 2244(d)(1)(C); or
(4) Where the factual basis for the claim could not have been
discovered until later, § 2244(d)(1)(C).
tolling may also be available “when an inmate
diligently pursues his claims and demonstrates that the
failure to timely file was caused by extraordinary
circumstances beyond his control.” Marsh v.
Soares, 223 F.3d 1217, 1220 (10th Cir. 2000).
case, the limitation period began to run on November 9, 2007,
when the conviction became final. 158 days elapsed before
Frazier filed a state habeas petition on April 15, 2008,
which stopped the clock pursuant to § 2244(d)(2). The
state habeas proceeding remained pending until March 21,
2018, when the NMSC denied review. See Lawrence v.
Florida, 549 U.S. 327, 332 (2007) (stating that for
purposes of § 2244(d)(2), a state habeas proceeding
remains pending until “the State's highest court
has issued its mandate or denied review”). “The
next day statutory tolling ceased, ” and the remaining
“time for filing a federal habeas petition [here, 207
resumed.” Trimble v. Hansen, No. 18-1490, 2019
WL 990686, at *2 (10th Cir. Feb. 28, 2019); see Rhine v.
Boone, 182 F.3d 1153, 1155 (10th Cir. 1999) (holding
that the “time after the [highest state court] finally
denied [petitioner's] post-conviction application until
the United States Supreme Court denied his petition for
certiorari was not ‘time during which a properly filed
application for State post-conviction . . . review ...