Frazier v. Superintendent
Filing
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OPINION AND ORDER DISMISSING the petition 1 pursuant to Rule 4 of the Rules Governing Section 2254 Cases, and DENIES the petitioner a certificate of appealability. Signed by Judge Joseph S Van Bokkelen on 10/8/13. (smp)
United States District Court
Northern District of Indiana
TYRONE D. FRAZIER,
Petitioner,
vs.
SUPERINTENDENT,
Respondent.
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Civil Action No. 3:13-CV-1073 JVB
OPINION AND ORDER
Tyrone D. Frazier a pro se prisoner, filed a habeas petition under 28 U.S.C. § 2254
seeking to challenge his 1991 conviction for battery in Marion County. (DE 1.) The court is
obligated to review the petition and dismiss it if “it plainly appears from the petition and any
attached exhibits that the petitioner is not entitled to relief[.]” RULE 4 OF THE RULES GOVERNING
SECTION 2254 CASES.
According to the petition, Frazier pled guilty to felony burglary in 1991 and was
sentenced to two years in prison. (DE 1 at 1, 5.) In 2003, he was convicted of another offense
and sentenced as a habitual offender based in part on the 1991 burglary conviction. (Id. at 5.) He
now argues that his 1991 conviction should be overturned because he received ineffective
assistance of counsel and his guilty plea was involuntary. (DE 1 at 4.)
A petitioner is not “in custody” pursuant to a conviction that has been fully executed.
Lackawanna County District Attorney v. Coss, 532 U.S. 394, 401 (2001); Maleng v. Cook, 490
U.S. 488, 490-91 (1989). Thus “once a state conviction is no longer open to direct or collateral
attack in its own right” the conviction is regarded as “conclusively valid.” Coss, 532 U.S. at 403.
Even if the conviction is later used to enhance a sentence, the defendant “may not challenge the
enhanced sentence through a petition under § 2254 on the ground that the prior conviction was
unconstitutionally obtained.” Id. at 403-04. There is a single exception to this rule, where the
prior conviction was obtained in violation of Gideon v. Wainwright, 372 U.S. 335 (1963),
because the defendant was not appointed counsel in the underlying case. Id. at 404.
Here, it is apparent from the petition that Frazier’s 1991 conviction is fully executed. It is
also apparent that Frazier had counsel in the 1991 case, notwithstanding his view of counsel’s
performance. Under Coss, he is barred from obtaining federal habeas relief with respect to the
1991 conviction.1 See Martin v. Deuth, 298 F.3d 669, 672 (7th Cir. 2002) (petitioner was
precluded from obtaining habeas relief on the basis of a prior conviction used to enhance current
sentence, because prior conviction was no longer open to attack in its own right and he did not
allege that conviction was obtained in violation of Gideon).
Moreover, even if Frazier could overcome this barrier, his petition would not be timely.
His petition is governed by the provisions of the Anti-Terrorism and Effective Death Penalty Act
of 1996 (“AEDPA”). See Lindh v. Murphy, 521 U.S. 320, 336 (1997). Under AEDPA, habeas
corpus petitions are subject to a strict one-year statute of limitations, set forth as follows:
(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 the judgment of a State court. The limitation period
shall run from the latest of—
(A) the date on which the judgment became final by the conclusion of direct
review or the expiration of the 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;
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Although Coss would not preclude Frazier from challenging his current conviction, subject to the usual
constraints of 28 U.S.C. § 2254, his petition is framed entirely as an attack on the 1991 conviction.
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(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.
(2) The time during which a properly filed application for State post-conviction or other
collateral review with respect to the pertinent judgment or claim is pending shall not be
counted toward any period of limitation under this subsection.
28 U.S.C. § 2244(d).
Upon review, Frazier’s claims do not implicate newly discovered evidence or a newly
recognized constitutional right, nor does he claim that a state-created impediment prevented him
from filing his federal petition on time. (See DE 1 at 5.) Because Frazier’s conviction became
final prior to the enactment of AEDPA, he had until April 24, 1997, to seek federal habeas relief.
Balsewicz v. Kingston, 425 F.3d 1029, 1032 (7th Cir. 2005). He did not file by this deadline, and
instead waited until September 2013 to seek federal habeas relief. Although in 2003 he filed a
state post-conviction petition challenging his conviction, this filing did not toll or otherwise
affect the federal deadline, since the deadline had expired several years earlier. De Jesus v.
Acevedo, 567 F.3d 941, 943 (7th Cir. 2009) (observing that “a state proceeding that does not
begin until the federal year has expired is irrelevant” for purposes of 28 U.S.C § 2244(d)(2)).
The state court’s subsequent decision denying post-conviction relief did not “restart” the federal
clock, nor did it “open a new window for federal collateral review.” Id. at 942-43. For these
reasons, the petition must be dismissed.
Pursuant to RULE 11 OF THE RULES GOVERNING SECTION 2254 CASES, the court must
either issue or deny a certificate of appealability in all cases where it enters a final order adverse
to the petitioner. To obtain a certificate of appealability under 28 U.S.C. § 2253(c), the petitioner
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must make a substantial showing of the denial of a constitutional right by establishing “that
reasonable jurists could debate whether (or, for that matter, agree that) the petition should have
been resolved in a different manner or that the issues presented were adequate to deserve
encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quote
marks and citation omitted). As is explained above, Frazier is barred from challenging his fully
executed 1991 conviction. Even if he could overcome this barrier, his petition was not timely
filed. Nothing before the court suggests that jurists of reason could debate the correctness of this
ruling or find a reason to encourage Frazier to proceed further. Accordingly, the court declines to
issue him a certificate of appealability.
For the reasons set forth above, the court DISMISSES the petition (DE 1) pursuant to
RULE 4 OF THE RULES GOVERNING SECTION 2254 CASES, and DENIES the petitioner a certificate
of appealability.
SO ORDERED on October 8, 2013.
s/ Joseph S. Van Bokkelen
Joseph S. Van Bokkelen
United States District Judge
Hammond Division
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