Douglas Alan Frasch v.  JAMES PEGUESE, Warden

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 DOUGLAS ALAN FRASCH,
Petitioner-Appellant,
v.
No. 04-6902  JAMES PEGUESE, Warden; J. JOSEPH
CURRAN, JR., The Attorney General
of the State of Maryland,
Respondents-Appellees. 
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
J. Frederick Motz, District Judge.
(CA-03-2482-JFM)
Argued: February 4, 2005
Decided: July 7, 2005
Before NIEMEYER and MICHAEL, Circuit Judges,
and Samuel G. WILSON, United States District Judge for the
Western District of Virginia, sitting by designation.
Reversed and remanded by published opinion. Judge Michael wrote
the majority opinion, in which Judge Wilson concurred. Judge Nie-
meyer wrote a dissenting opinion.
COUNSEL
ARGUED: David Warren Lease, SMITH, LEASE & GOLDSTEIN,
L.L.C., Rockville, Maryland, for Appellant. Mary Ann Rapp Ince,

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Assistant Attorney General, OFFICE OF THE ATTORNEY GEN-
ERAL OF MARYLAND, Baltimore, Maryland, for Appellees. ON
BRIEF: J. Joseph Curran, Jr., Attorney General of Maryland, Balti-
more, Maryland, for Appellees.
OPINION
MICHAEL, Circuit Judge:
This is an appeal from the dismissal of a federal habeas corpus
petition as untimely under a limitations provision in the Anti-
Terrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C.
§ 2244(d)(1)(A), which requires that a petition be filed within one
year of the conclusion of direct review or the expiration of the time
for seeking direct review. The petitioner here (a Maryland prisoner)
obtained, in a collateral proceeding, an order allowing him to file a
belated application for leave to appeal his conviction and sentence.
The controlling issue in this case is whether the state appellate court’s
consideration and denial of his appeal application in a subsequent pro-
ceeding was direct review. We conclude that it was. As a result, the
statute of limitations began to run when the time expired for seeking
further direct review (through a writ of certiorari) from the United
States Supreme Court. Because the federal petition was filed within
one year of the expiration of the time for seeking direct review, it is
not barred by AEDPA’s statute of limitations. Accordingly, we
reverse and remand.
I.
In October 1989 Douglas A. Frasch pled guilty to first degree sex-
ual assault in the Circuit Court for Charles County, Maryland (the
Maryland Circuit Court). On December 14, 1989, he was sentenced
to life in prison. His lawyer failed to file an application for leave to
appeal, which would have been the route for seeking direct review of
the conviction and sentence. On December 13, 1999, almost ten years
after he was sentenced, Frasch filed a petition for postconviction
review under the Maryland Uniform Postconviction Procedure Act
(the UPCA), Md. Code Ann., Crim. Proc. 7-101 et seq., in the Mary-
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land Circuit Court. Frasch asserted, among other grounds, that he had
received ineffective assistance of counsel because his lawyer failed to
file an application for leave to appeal his conviction and sentence to
the Court of Special Appeals of Maryland. (Frasch’s time for filing
an application for leave to appeal had expired thirty days after he was
sentenced.) The state’s attorney conceded that Frasch’s Sixth Amend-
ment rights had been violated because Frasch had not been informed
of his right to file an application for leave to appeal by either his law-
yer or the sentencing court. As a result, on October 3, 2000, the Mary-
land Circuit Court entered an order granting Frasch the right to file,
within thirty days, a belated application for leave to appeal. The
court’s order did not address other issues raised by Frasch in his peti-
tion, but the order was entered without prejudice to his ability to file
an additional petition on the unaddressed issues. On October 30,
2000, Frasch filed his application for leave to appeal his conviction
and sentence in the Court of Special Appeals of Maryland. That court
"read[,] considered, [and] denied" his application on July 9, 2001.
J.A. 50. Because Frasch’s application for leave to appeal was denied,
he was not entitled to file a petition for a writ of certiorari in the Court
of Appeals of Maryland. See Md. Code Ann., Cts. & Jud. Proc. § 12-
202(4). On September 6, 2001, Frasch filed a second petition for post-
conviction review under the UPCA in the Maryland Circuit Court. In
this petition Frasch reasserted the issues from his first petition that
had not been addressed in the October 2000 order allowing him to file
a belated application for leave to appeal. After his second petition was
denied by the Maryland Circuit Court, the Court of Special Appeals
denied his application for leave to appeal on December 10, 2002,
thereby ending his state postconviction review.
Frasch came to federal court on August 22, 2003, when he filed a
petition for a writ of habeas corpus in the District of Maryland. The
State of Maryland moved to dismiss the petition on the grounds that
it was not filed within the one-year statute of limitations prescribed
by AEDPA. See 28 U.S.C. § 2244(d)(1)(A). Specifically, Maryland
argued that Frasch’s conviction became final on January 15, 1990,
when the statutory deadline for filing an application for leave to
appeal expired. Because his conviction became final prior to April 24,
1996, AEDPA’s effective date, Maryland argued that the statute of
limitations for filing a federal habeas petition expired one year later,
on April 24, 1997. The district court agreed with the state and dis-
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missed Frasch’s petition. Frasch now appeals and we review de novo
the district court’s application of 2244(d)(1)(A). See Crawley v.
Catoe, 257 F.3d 395, 397-98 (4th Cir. 2001).
II.
A.
AEDPA provides that "[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." 28 U.S.C. § 2244(d). This
one-year period begins running "from the latest of" several potential
starting dates. See id. 2244(d)(1)(A)-(D). For our purposes, the rele-
vant starting date is "the date on which the [state] judgment became
final by the conclusion of direct review or the expiration of the time
for seeking such review." Id. § 2244(d)(1)(A). Simply put, "the one-
year limitation period begins running when direct review of the state
conviction is completed or when the time for seeking direct review
has expired." Hill v. Braxton, 277 F.3d 701, 704 (4th Cir. 2002). As
we will explain, Frasch’s federal habeas petition was timely under a
straightforward application of § 2244(d)(1)(A).
A Maryland defendant like Frasch who pleads guilty is not entitled
to an appeal as a matter of right. Such a defendant may, however,
seek direct review of his conviction and sentence by filing, within
thirty days of judgment, an application for leave to appeal to the
Court of Special Appeals of Maryland. See Md. Code. Ann., Cts. &
Jud. Proc. § 12-302(e); Md. R. 8-204(b)(1); McElroy v. State, 617
A.2d 1068, 1073 (Md. 1993) (characterizing a defendant’s application
for leave to appeal after a guilty plea as "direct review"). If the Court
of Special Appeals denies the defendant leave to appeal, he is not per-
mitted to seek review in the Court of Appeals, Maryland’s highest
court. See Md. Code. Ann., Cts. & Jud. Proc. § 12-202(4). The defen-
dant’s only option for seeking further direct review is to petition,
within the allowed time of ninety days, for a writ of certiorari from
the United States Supreme Court. See 28 U.S.C. § 1257 ("Final judg-
ments or decrees rendered by the highest court of a State in which a
decision could be had, may be reviewed by the Supreme Court by
writ of certiorari . . . ."); Sup. Ct. R. 13(1). In the event the defendant
does not file a petition for a writ of certiorari, "the time for seeking
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[direct] review" expires on the ninetieth day after the Court of Special
Appeals denies the application for leave to appeal. See 28 U.S.C.
§ 2244(d)(1)(A); Harris v. Hutchinson, 209 F.3d 325, 328 n.1 (4th
Cir. 2000). This is the day (or date) when the statute of limitations for
filing a federal habeas petition begins to run.
On October 3, 2000, the Maryland Circuit Court granted Frasch a
new thirty-day deadline for filing an application for leave to appeal
his conviction and sentence to the Maryland Court of Special
Appeals. Frasch filed a timely application for leave to appeal on Octo-
ber 30, 2000, and the Court of Special Appeals completed its direct
review of his conviction and sentence on July 9, 2001, when it issued
a decision stating that it had "read[,] considered, [and] denied" his
application. J.A. 50. Frasch did not file a petition for a writ of certio-
rari with the United States Supreme Court, and thus his time for seek-
ing further direct review expired ninety days later on October 8, 2001.
Because Frasch was seeking state collateral review on October 8,
2001, AEDPA’s one-year statute of limitations was tolled until
December 10, 2002, the date on which state collateral review ended.
See 28 U.S.C. 2244(d)(2) (providing that the statute of limitations is
tolled while a defendant pursues state collateral review). Thus, his
federal habeas petition was timely when it was filed on August 22,
2003.
B.
To get around this straightforward application of 2244(d)(1)(A),
Maryland focuses on the fact that Frasch did not file his application
for leave to appeal within the original deadline prescribed by state
rule, that is, he did not file it within thirty days of sentence (or judg-
ment). See Md. R. 8-204(b)(1). Frasch failed to meet this deadline
because neither his lawyer nor the sentencing court informed him of
his appeal rights. Nearly ten years passed, and Frasch initiated a col-
lateral proceeding to obtain the right to file his application beyond the
original deadline. Maryland claims that because Frasch gained the
right to file a belated application through a collateral proceeding, the
Court of Special Appeals’s consideration of his application consti-
tuted collateral, not direct, review. Because there has been no direct
review in Frasch’s case, according to Maryland, his time for seeking
direct review expired for purposes of § 2244(d)(1)(A) when the origi-
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nal deadline for filing an application for leave to appeal expired on
January 15, 1990. Thus, Maryland says that Frasch’s time for filing
a federal habeas petition expired on April 24, 1997, at the end of
AEDPA’s one-year grace period. We disagree.
To determine what constitutes "direct review" for purposes of
2244(d)(1)(A), we look to state (Maryland) law. See Bridges v. John-
son, 284 F.3d 1201, 1202 (11th Cir. 2002). The Maryland Court of
Special Appeals’s consideration of a defendant’s timely application
for leave to appeal constitutes direct review. See McElroy, 617 A.2d
at 1073. Yet Maryland asserts that the court’s consideration of
Frasch’s application was not direct review. Maryland argues that
because Frasch used a collateral review proceeding to obtain the right
to file his application for leave to appeal under a new deadline, the
proceeding remained collateral when he filed and pursued the actual
application. Maryland’s argument appears to be based on Salinas v.
Dretke, 354 F.3d 425, 431 (5th Cir. 2004), an opinion in which the
Fifth Circuit held that a state court’s consideration of a belated appeal
did not constitute direct review because the defendant had obtained
the right to file the appeal through state habeas (collateral) proceed-
ings. We reject the Salinas approach because it ignores that two sepa-
rate proceedings are involved. Here, the nature of the review
conducted by the Maryland courts was different in each proceeding,
and the nature of the review is the key to determining whether it was
collateral or direct. See Orange v. Calbone, 318 F.3d 1167, 1171
(10th Cir. 2003) (concluding that "direct review" occurred when
Oklahoma state prisoner was granted a belated appeal in which he
was required to follow the procedural rules for a direct appeal, and the
state appellate court "review[ed] the issues raised . . . on the merits
without the typical res judicata/procedural bar analysis normally
employed in a case involving post-conviction review").
To obtain the right to file a belated application for leave to appeal,
Frasch initiated a collateral proceeding under state law. See Md. Code
Ann., Crim. Proc. 7-102(a). It is undisputed that the Maryland Circuit
Court’s consideration of Frasch’s request to file an application outside
of the statutory deadline constituted collateral review because the pro-
ceeding was initiated under, and subject to the restrictions of, the
UPCA. Under the UPCA a petitioner may assert only four types of
claims: that "(1) the sentence or judgment was imposed in violation
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of the Constitution of the United States or the Constitution or laws of
the State; (2) the court lacked jurisdiction to impose the sentence; (3)
the sentence exceeds the maximum allowed by law; or (4) the sen-
tence is otherwise subject to collateral attack on a ground of alleged
error that would otherwise be available under a writ of habeas corpus,
writ of coram nobis, or other common law or statutory remedy." Id.
§ 7-102(a)(1)-(4). In sum, a claim under the UPCA "does not consti-
tute a part of the original criminal cause, but is an independent and
collateral civil inquiry into the validity of the conviction and sen-
tence." Md. State Bar Ass’n v. Kerr, 326 A.2d 180, 181 (Md. 1974);
see also Mosley v. State, 836 A.2d 678, 685 (Md. 2003) (noting that
collateral review under the UPCA "is not an appeal of the judgment[
but] rather[ ] . . . is a collateral attack designed to address alleged con-
stitutional, jurisdictional, or other fundamental violations that
occurred at trial").
After Frasch’s collateral proceeding ended with the order granting
him the right to file a belated application for leave to appeal, he was
no longer proceeding under the UPCA. Indeed, he was "in the same
procedural posture as if he had timely pursued a direct appeal."
Orange, 318 F.3d at 1171. Thus, when Frasch filed his application for
leave to appeal, he was not limited to asserting only the four types of
claims allowed under the UPCA. See Md. Code Ann., Crim. Proc.
§ 7-102. Frasch was seeking direct review, and the Court of Special
Appeals’s consideration of his application constituted direct review.
When the Court of Special Appeals considers a timely application for
leave to appeal, it decides whether to "(1) deny the application; (2)
grant the application and affirm the judgment of the court; (3) grant
the application and reverse the judgment of the lower court; (4) grant
the application and remand the judgment to the lower court with
directions to that court; or (5) grant the application and order further
proceedings in the Court of Special Appeals." Md. R. 8-204(f)(1)-(5).
The decision rendered by the Court of Special Appeals is part of the
direct review.
As Maryland acknowledged at oral argument, Frasch was able to
assert in his belated (and authorized) application in 2000 all of the
claims he could have asserted in an application filed by the original
deadline in 1989. That is the case because Frasch is "a defendant
[who was] denied, through no fault of his own, his right to an appeal
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which he desire[d] and to which he [was] entitled." Garrison v. State,
711 A.2d 170, 175 (Md. 1998) (emphasis omitted). Such a defendant
is granted a belated appeal "to [e]nsure that [he] obtain[s] as full a
review as if his appeal had been properly pursued." Wilson v. State,
399 A.2d 256, 263 (Md. 1979). As a result, when the Court of Special
Appeals of Maryland "read and considered" Frasch’s application for
leave to appeal, the court had the same decision options it would have
had if Frasch had filed by the original deadline. See Md. R. 8-
204(f)(1)-(5); J.A. 50. Frasch’s application for leave to appeal was
therefore treated in every respect as a timely one, which compels the
conclusion that the Court of Special Appeals engaged in direct
review.
C.
The dissent argues that the Court of Special Appeals of Maryland’s
consideration of Frasch’s belated application for leave to appeal was
collateral review, not direct review (or part of the "direct review pro-
cess," post at 11). First, the dissent asserts that it was not direct
review because Frasch resorted to postconviction (collateral) proceed-
ings to obtain the right to file the application. See post at 12. The
problem with this argument, as we have already explained, is that it
ignores that (1) the proceeding in which Frasch obtained the right to
file his belated application was distinct from the proceeding in which
he filed the application and (2) the nature of review was different in
each proceeding. See supra at 6.
Second, the dissent asserts that the Court of Special Appeals’s con-
sideration of Frasch’s belated application for leave to appeal was not
direct review because Frasch was not in the same procedural posture
under the UPCA after the court considered his application as he
would have been if he had filed a timely application. Frasch was in
a different procedural posture, the dissent asserts, because a prisoner
is entitled to file only one petition under the UPCA, and a prisoner
like Frasch who uses the UPCA to obtain a belated application for
leave to appeal his conviction and sentence must include any other
postconviction claims in his one petition. See post at 13. The first
problem with this argument is that Frasch’s procedural posture under
the UPCA after the Court of Special Appeals considered his applica-
tion for leave to appeal has nothing to do with whether the court’s
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consideration constituted direct review. The nature of review engaged
in by the Court of Special Appeals is the key to determining whether
the review was direct or collateral, and it is Frasch’s procedural pos-
ture in that court after he was allowed to file the application that is
a factor in determining the nature of review. As noted above, once
Frasch filed his belated application, he was in the same procedural
posture in the Court of Special Appeals as one who timely pursues an
application for leave to appeal. See supra at 7.
Moreover, the dissent is incorrect as a factual matter in contending
that Frasch ended up in a different procedural posture under the
UPCA after pursuing his application for leave to appeal. Frasch
asserted a number of claims in his initial postconviction petition,
including the claim that he was entitled to file a belated application
for leave to appeal his conviction and sentence. The Maryland Circuit
Court’s order awarding Frasch the right to file a belated application
did not address the other claims, but the order was entered without
prejudice to his ability to file an additional petition "on those
[claims]." J.A. 47. After his application for leave to appeal was
rejected by the Court of Special Appeals, Frasch did in fact file an
additional petition in the Maryland Circuit Court reasserting the unre-
solved claims raised in his first petition. Thus, Frasch, like a Mary-
land prisoner who files a timely application for leave to appeal, had
one chance to assert all of his postconviction claims under the UPCA.
He did so in his initial petition, and all of his claims were eventually
considered by the Maryland Circuit Court over the course of two pro-
ceedings, which is an accepted practice for resolving postconviction
claims in Maryland. See Dixon v. State, 579 A.2d 786, 787-88 (Md.
Ct. Spec. App. 1990) (recognizing the "rule that if a post conviction
case is resolved in such a way as to make it unnecessary for the hear-
ing judge to reach a particular allegation and the hearing judge in fact
does not reach it, the unresolved allegation continues to retain its first
petition status with the result that, upon a subsequent petition for post
conviction relief raising that allegation, a petitioner [is] entitled to a
hearing") (internal quotation marks and citation omitted). Because
Frasch received the same collateral review he would have received
had he timely filed his application for leave to appeal, the dissent’s
assertion that he ended up in a different procedural posture is simply
wrong.
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III.
In sum, when Frasch filed his application for leave to appeal his
conviction and sentence to the Court of Special Appeals, he initiated
direct review. That court engaged in direct review when it considered
and denied his application on July 9, 2001. AEDPA’s statute of limi-
tations started running ninety days later, on October 8, 2001, when
Frasch’s time for seeking further direct review in the United States
Supreme Court expired. Because Frasch was seeking state collateral
review on that date, the statute of limitations was tolled until that
review concluded on December 10, 2002. Thus, his petition for a writ
of habeas corpus was not time-barred by AEDPA’s one-year statute
of limitations when he filed it on August 22, 2003. We therefore
reverse the district court’s order dismissing the petition and remand
for further proceedings.
REVERSED AND REMANDED
NIEMEYER, Circuit Judge, dissenting:
I would affirm the judgment of the district court, dismissing this
habeas proceeding as untimely under AEDPA, 28 U.S.C.
§ 2244(d)(1)(A), and therefore I respectfully dissent.
On December 14, 1989, Douglas Frasch was sentenced in a Mary-
land state court on his guilty plea to a charge of sexual assault. Frasch
sought no direct review of his judgment of conviction within the 30
days allowed for appealing such judgments under Maryland proce-
dure. Accordingly, Frasch’s judgment of conviction became final in
January 1990.
Ten years later — on December 13, 1999 — Frasch first sought
postconviction review in Maryland state court, contending that he
received ineffective assistance of counsel because his lawyer failed to
appeal his guilty plea conviction. The Maryland court granted post-
conviction relief on October 3, 2000, allowing Frasch to file a belated
application for leave to appeal his 1989 judgment of conviction to the
Maryland Court of Special Appeals.
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Frasch filed his application for leave to appeal within the 30 days
allowed, and the Maryland Court of Special Appeals summarily
denied his petition on July 9, 2001. Even though this appeal to the
Maryland Court of Special Appeals was awarded as postconviction
relief, Frasch treated it as a revived direct review and accordingly
filed a second postconviction motion in state court on September 6,
2001. The state court denied his motion, and on December 10, 2002,
the Maryland Court of Special Appeals denied Frasch leave to appeal
the denial.
Frasch filed the habeas petition in this case on August 22, 2003,
more than 13 years after his conviction became final, and more than
7 years after AEDPA, including its one-year statute of limitations for
the filing of a habeas petition in federal court, was enacted. See 28
U.S.C. § 2244(d)(1)(A).
The majority concludes that because the Maryland courts granted
Frasch postconviction relief in October 2000, allowing Frasch to pur-
sue a belated appeal, the statute of limitations for his petition in fed-
eral court runs from October 8, 2001 — the date on which Frasch’s
time to seek a writ of certiorari from the U.S. Supreme Court expired
— plus any time that Frasch used in pursuing his second postconvic-
tion relief. Although the majority recognizes that AEDPA establishes
a one-year statute of limitations running from "the date on which the
judgment [of conviction in state court] became final by the conclusion
of direct review or the expiration of the time for seeking such
review," 28 U.S.C. § 2244(d)(1)(A) (emphasis added), it rules that the
direct review process that had concluded in 1990 was somehow
revived in 2000 by the state court’s grant of postconviction relief. The
majority concludes therefore that when the revived direct review pro-
cess concluded, the AEDPA clock started running again, making
Frasch’s federal petition filed on August 22, 2003, timely.
The problem with the majority’s analysis is its conclusion that the
relief granted through Maryland’s postconviction process revived
Maryland’s direct review process that had concluded 10 years earlier.
The U.S. Supreme Court has instructed that, for purposes of interpret-
ing how AEDPA interacts with such state procedural rules, we must
"look to how a state procedure functions." Carey v. Saffold, 536 U.S.
214, 223 (2002). An examination of Maryland state law compels the
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conclusion that Maryland does not consider the rights granted to
Frasch in this case to be a revival of Maryland’s direct review pro-
cess. Rather, Maryland considers the relief granted through a postcon-
viction motion to be just that — postconviction relief — even though
that relief included a belated right of appeal. More specifically, the
processes leading up to and following Frasch’s belated appeal leave
no doubt that Frasch’s belated appeal functioned as part of Mary-
land’s postconviction relief process and not as a revival of its direct
review process.
First, the process by which Frasch obtained a belated appeal indi-
cates that it functioned to provide a remedy available under Mary-
land’s postconviction process, not as part of its direct review process.
To obtain his right to file a belated appeal, Frasch filed a petition for
postconviction relief in the trial court, the principal means by which
defendants obtain belated appeals in Maryland. See Wilson v. State,
399 A.2d 256, 262 (Md. 1979) (holding that the Maryland Post Con-
viction Procedure Act gives circuit courts the power to grant belated
appeals as remedies for conviction errors); Michael v. State, 584 A.2d
1317, 1318 (Md. Ct. Spec. App. 1991) (noting that Maryland’s rules
of appellate procedure provide no mechanism for extending the 30-
day period for filing a direct appeal and holding that, "in the absence
of specific authority," the appeals period may not be extended on
direct review). In Wilson, the court explained that the purpose of the
Maryland Post Conviction Procedure Act was "to bring together and
consolidate in one simple statute all the remedies, beyond those that
are incident to the usual procedures of trial and review, which are
presently available for challenging the validity of a sentence." Wilson,
399 A.2d at 262 (emphasis added). Thus, by recognizing that belated
appeals are primarily available as remedies under the Post Conviction
Procedure Act, the Maryland Court of Appeals acknowledged that the
right to a belated appeal is outside the "direct review" process.
The majority argues that the process by which Frasch obtained the
right to file a belated appeal is irrelevant to the question of whether
the belated appeal itself constituted "direct review" because the pre-
appeal process and the belated appeal took place in two separate pro-
ceedings. See ante at 8. The distinctness of the proceedings, however,
only highlights the importance of examining the pre-appeal process.
The central question in this case — that is, whether a belated appeal
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acts as "direct review" — depends on how the belated appeal fits
within the broader scheme of Maryland’s criminal justice system.
Indeed, the very word "direct" demands an analysis of the relationship
between the belated appeal and the procedures leading up to it. As
explained above, the fact that Frasch had to go through Maryland’s
postconviction procedure to obtain a belated appeal — because he
could not otherwise have obtained an extension of his time for filing
a direct appeal — indicates that the belated appeal was not "direc-
t[ly]" related to his initial conviction.
Second, the procedural posture of Frasch’s case after the conclu-
sion of his belated appeal also demonstrates that the belated appeal
was part of the postconviction process and not a revival of the direct
review process. Maryland’s postconviction review statute provides
that "[f]or each trial or sentence, a person may file one petition for
relief under this title." Md. Code Ann., Crim. Proc. § 7-103 (emphasis
added). Thus, if a defendant files a timely appeal for direct review of
his conviction and the Maryland Court of Special Appeals denies his
appeal, the defendant still has an opportunity to assert error by filing
a petition under the postconviction statute. In contrast, if the defen-
dant, rather than pursuing a timely direct appeal, obtains a belated
appeal by filing a postconviction petition, which the Court of Special
Appeals denies, the petitioner is deemed to have used his one post-
conviction petition unless he raised an additional point of error in his
original petition. See Dixon v. State, 579 A.2d 786, 788 (Md. Ct.
Spec. App. 1990).
Here, in Frasch’s initial state postconviction petition, he asserted a
number of claims in addition to the ineffective counsel claim that
formed the basis for his right to file a belated appeal. Because those
additional claims were not addressed in the initial postconviction pro-
ceeding, they retained their first-petition status, thus enabling Frasch
to reassert them after the completion of the belated appeal. For all
other allegations of error, however, Frasch’s first postconviction peti-
tion acted as a bar; having failed to raise them in the first petition,
Frasch could not assert them after the belated appeal.
By stating that "[b]ecause Frasch received the same collateral
review he would have received had he timely filed his application for
leave to appeal," Frasch did not "end[ ] up in a different procedural
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posture," see ante at 9, the majority lumps together Frasch’s proce-
dural posture from before and after he obtained his belated appeal.
While the sum of Frasch’s rights under the postconviction act was not
affected by the belatedness of his appeal, his rights as they stood after
the completion of the appeal were most definitely altered. After the
completion of the belated appeal, Frasch could not raise any new
grounds for relief in a postconviction petition; he was limited to
asserting only those claims raised in his first petition. In contrast, after
the completion of a timely appeal, had Frasch filed one, Maryland’s
one-petition limit would not have constrained the grounds available
for Frasch to raise in a postconviction petition. Thus, giving Frasch
a belated appeal as part of his postconviction relief did not place him
in the same procedural posture as if he had timely pursued direct
review of his conviction, as he claims and the majority allows.
Because Maryland law treats belated appeals as remedies available
under the Maryland Postconviction Procedure Act and because a peti-
tioner who obtains a belated appeal through the postconviction pro-
cess is not in the same procedural posture under Maryland procedure
as a petitioner who files a timely direct appeal, Frasch’s belated
appeal was not part of Maryland’s direct review process. That process
ended in 1990 when Frasch’s judgment of conviction became final.
Accordingly, AEDPA’s statute of limitations for a habeas petition
relating to a final 1989 judgment began to run on April 24, 1996,
AEDPA’s effective date, and expired on April 23, 1997, more than
six years before Frasch actually filed the habeas petition in this case.
Accordingly, it is barred by § 2244(d)(1)(A).
14 FRASCH v. PEGUESE

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