Jarrell Frazier v. Fnu Brown; Attorney General for the State of New Mexico

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
JARRELL FRAZIER,
Petitioner - Appellant,
v.
FNU BROWN; ATTORNEY GENERAL
FOR THE STATE OF NEW MEXICO,
Respondents - Appellees.
No. 22-2022
(D.C. No. 1:19-CV-00248-MV-SMV)
(D. N.M.)
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________
Before PHILLIPS, MURPHY, and EID, Circuit Judges.
_________________________________
Petitioner Jarrell Frazier, proceeding pro se,1 seeks a certificate of appealability
(“COA”) to challenge the dismissal of his 28 U.S.C. § 2254 habeas petition. The district
court dismissed his petition as time-barred. Thus, for Frazier to obtain a COA, he must
show that “jurists of reason would find it debatable whether the petition states a valid
claim of the denial of a constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its procedural ruling.” Slack v.
* This order is not binding precedent except under the doctrines of law of the case,
res judicata, and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1 Because Frazier is a pro se litigant, we liberally construe his filings, Erickson v.
Pardus, 551 U.S. 89, 94 (2007), without acting as his advocate, Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991).
FILED
United States Court of Appeals
Tenth Circuit
October 19, 2022
Christopher M. Wolpert
Clerk of Court
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McDaniel, 529 U.S. 473, 484 (2000). Exercising jurisdiction under 28 U.S.C. §§ 1291
and 2253, we deny a COA and dismiss this matter because the district court’s ruling is
not reasonably debatable.
BACKGROUND
In February 2004, a New Mexico jury convicted Frazier of multiple felonies.
Frazier was sentenced to life imprisonment, plus 21 years. Frazier directly appealed his
conviction to the New Mexico Supreme Court. 2
In July 2007, the New Mexico Supreme Court vacated one of Frazier’s
convictions, affirmed his remaining convictions, and remanded for resentencing. On
October 10, 2007, the state court entered an amended judgment, slightly modifying his
original sentence. Frazier did not appeal this amended judgment.
On April 15, 2008, Frazier filed a state habeas petition, alleging ineffective
assistance of counsel. The state court denied the petition. The New Mexico Supreme
Court, however, reversed and remanded for an evidentiary hearing.
For almost nine years, Frazier’s state habeas petition remained pending. Then, on
March 6, 2017, after an evidentiary hearing, the state court denied his petition. Frazier
sought review of the state court’s denial with the New Mexico Supreme Court. On March
21, 2018, the New Mexico Supreme Court denied his petition for certiorari.
On March 19, 2019, Frazier submitted this § 2254 petition in federal district court.
The district court ordered Frazier to show why his petition was not time-barred. After
2 Criminal defendants in New Mexico may directly appeal to the New Mexico
Supreme Court if sentenced to death or life imprisonment. N.M. R. App. P. 12-102(A)(1).
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reviewing his response, the court dismissed his petition as untimely because Frazier had
failed to account for a five-month window during which the clock for his habeas petition
was running. Frazier filed a motion for reconsideration under Federal Rule of Civil
Procedure 60(b), which the district court also denied.
DISCUSSION
Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a state
prisoner must file a § 2254 petition within one year of the state court’s judgment
becoming final. See 28 U.S.C. § 2244(d)(1). A state court’s judgment becomes final upon
conclusion of direct review or once the time to seek review expires. 28 U.S.C.
§ 2244(d)(1)(A). Under New Mexico law, a criminal defendant has 30 days after entry of
judgment to file an appeal. N.M. Stat. Ann. § 39–3–3(A)(1) (setting a 30–day limitation
period for a criminal defendant to appeal, running from the entry of judgment).
Here, the district court found Frazier’s petition to be untimely because he had
failed to account for a five-month window during which the clock for his § 2254 petition
was running. We agree with the court’s analysis.
Because Frazier’s amended judgment was entered on October 10, 2007, his one-
year limitations period started running, at the latest, on November 12, 2007—when the
time for him to seek review of the amended judgment expired. And it continued to run
until April 15, 2008—when he filed his state habeas petition. See May v. Workman, 339
F.3d 1236, 1237 (10th Cir. 2003) (“The one-year period of limitation for filing a federal
habeas petition is tolled or suspended during the pendency of a state application for post-
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conviction relief properly filed during the limitations period.” (citing 28 U.S.C.
§ 2244(d)(2))).
So although Frazier filed his § 2254 petition on March 19, 2019—almost exactly
one year from when the New Mexico Supreme Court denied certiorari on March 21,
2018—he failed to account for the five-month period between November 2007 and April
2008 during which the clock was running. See R. at 82. This makes his § 2254 petition
untimely.
Still, Frazier argues that we should overlook his untimeliness because he is
entitled to equitable tolling based on the numerous errors involved in his original
conviction. This argument fails because it focuses on the merits of Frazier’s underlying
habeas petition, and we have held the merits of a habeas petition “play no part in the
equitable tolling analysis.” Lee v. Bigelow, 555 F. App’x 806, 809 (10th Cir. 2014).
We thus conclude that no reasonable jurists could debate the district court’s
dismissal of Frazier’s habeas petition as time-barred.
CONCLUSION
For these reasons, we deny Frazier’s request for a COA and dismiss the appeal.3
Entered for the Court
Gregory A. Phillips
Circuit Judge
3 We grant Frazier’s motion to proceed in forma pauperis.
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