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Frazier v. Johnson

United States District Court, E.D. Tennessee

March 30, 2018

TORREY L. FRAZIER, Petitioner,
DEBRA JOHNSON, Respondent.



         This is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, filed by pro se prisoner Torrey L. Frazier (“Petitioner”), challenging the constitutionality of his confinement under a state court judgment of conviction of second-degree murder [Doc. 1]. On March 23, 2015, Petitioner filed an amended petition [Doc. 8]. In compliance with the Court's order, Respondent filed a response to Petitioner's amended pleading on September 1, 2016, as well as a copy of the state record [Docs. 12, 13]. Petitioner replied on November 14, 2016 [Doc. 14]. For the reasons set forth below, Petitioner's § 2254 petition [Doc. 8] will be DENIED and this action will be DISMISSED.


         Petitioner was convicted of second-degree murder and sentenced to twenty-two years' imprisonment. State v. Frazier, No. E2000-01364-CCA-R3CD, 2001 WL 1627601, at *1 (Tenn. Crim. App. Dec. 19, 2001). Petitioner appealed his conviction. Id. Discerning no reversible error, on December 19, 2001, the Tennessee Court of Criminal Appeals (“TCCA”) affirmed the trial court's judgment. Id. at *9. Petitioner did not file an application for permission to appeal to the Tennessee Supreme Court (“TSC”).

         On July 21, 2004, Petitioner, through counsel, filed an untimely petition for post-conviction relief. Frazier v. State, 303 S.W.3d 674, 678 (Tenn. 2010). Despite the statute of limitations issue, the State conceded that Petitioner was entitled to a delayed application for permission to appeal to the Supreme Court. Id. The trial court granted the delayed appeal and stayed consideration of the remaining claims in the petition. Id. While Petitioner was given the opportunity to file an application for permission to appeal to the TSC, the application was denied on February 21, 2006. Id. Following an evidentiary hearing on the remaining issues, the trial court denied relief. Id.

         Petitioner appealed, and on March 25, 2009, the TCCA affirmed the denial of post-conviction relief. Frazier v. State, No. E2007-02518-CCA-R3-PC, 2009 WL 774482, at *1, *7 (Tenn. Crim. App. Mar. 25, 2009) rev'd and remanded, 303 S.W.3d 674 (Tenn. 2010). Afterward, Petitioner filed a pro se application for permission to appeal, arguing for the first time that the trial court had committed error by failing to sua sponte address a conflict of interest issue. Frazier, 303 S.W.3d 674, 678. Petitioner claimed that the attorney that represented him in the delayed appeal should have been disqualified in the subsequent post-conviction proceeding and appeal. Id. Petitioner contended that he should have been advised of the potential conflict of interest in advance of the evidentiary hearing and given the opportunity to either waive the issue or insist upon substitution of counsel. Id. Upon learning of Petitioner's allegations, the attorney sought and received permission to withdraw. Id. TSC granted permission to appeal in order to address the conflict of interest issue. Id.

         On remand, the trial court held an evidentiary hearing, determined that the Petitioner did not knowingly and voluntarily waive retained counsel's conflict of interest, and scheduled a new post-conviction hearing. Frazier v. State, No. E2012-01751-CCA-R3PC, 2013 WL 5964011, at *2 (Tenn. Crim. App. Nov. 6, 2013). Following a new evidentiary hearing held on July 19, 2012, the post-conviction court denied relief and the TCCA affirmed the denial on November 6, 2013. Id. The TSC denied discretionary review on May 14, 2014. Id.

         Petitioner then filed a writ of habeas corpus on January 16, 2015 [Doc. 1]. On March 23, 2016, Petitioner filed an amended writ of habeas corpus [Doc. 8]. This matter is now ripe for the Court's review.


         The facts of this case have been previously summarized by the TSC as follows:

At approximately 1:00 a.m. on December 28, 1997, Torrey Lyonel Frazier (the “petitioner”) shot and killed the victim, Anthony Eugene Thomas (the “victim”), at a place known as Skinny Miller's in Roane County. The petitioner fired multiple shots at close range, one of which penetrated the stomach, right lung, and aorta of the victim. The petitioner, charged with first-degree murder, claimed self-defense. He asserted that he had been threatened by the victim as a result of a prior incident and contended that, just prior to firing his gun, he had seen the victim reach for an object with a black handle in the front portion of his pants. Attorneys Charles B. Hill II and Spence Bruner were appointed as counsel. At trial, the police offered testimony that they had found no weapons during their investigation which might have supported the petitioner's claim. Further, a practical nurse, who had performed cardiopulmonary resuscitation on the victim shortly after the shooting, had loosened the victim's clothing at the scene and had not observed any weapon in his possession. The jury returned a verdict of second-degree murder, and the trial court imposed a sentence of twenty-two years.

Frazier, 303 S.W.3d 674, 677 (Tenn. 2010).


         The Court must review Petitioner's request for habeas corpus relief pursuant to the standards set forth in the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which allows state prisoners to seek federal habeas corpus relief on the ground that they are being held in custody in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254; Reed v. Farley, 512 U.S. 339, 347 (1994). Congress has mandated that federal courts review state court adjudications on the merits of such claims using a “highly deferential” standard of review. See, e.g., Harrington v. Richter, 562 U.S. 86, 105 (2011). Under this deferential standard, this Court is bound to accept the state court's findings of fact as true unless a petitioner presents “clear and convincing evidence” to the contrary. 28 U.S.C. § 2254(e)(1) (providing that “a determination of a factual issue by a State court shall be presumed to be correct” unless the petitioner rebuts that presumption with clear and convincing evidence); see Seymour v. Walker, 224 F.3d 542, 551-52 (6th Cir. 2000). Additionally, this Court may not grant habeas relief to a state prisoner unless the state court's decision on the merits of his claims “(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).

         “Clearly established federal law, ” for the purposes of § 2254(d)(1), refers to rulings of the United States Supreme Court in place at the time of “the last state-court adjudication on the merits.” Greene v. Fisher, 132 S.Ct. 38, 44 (2011); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003) (defining clearly established federal law as “the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision”). A decision is “contrary to” clearly established federal law if “the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413 (2000). A state-court decision unreasonably applies clearly established federal law if “the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case.” Id.

         The standards set forth in the AEDPA are “intentionally difficult to meet.” Woods v. Donald, 135 S.Ct. 1372, 1376 (2015) (quoting White v. Woodall, 134 S.Ct. 1697, 1702 (2014)). Ultimately, the AEDPA's highly deferential standard requires this Court to give the rulings of the state courts “the benefit of the doubt.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (quoting Woodford v. Visciotti, 537 U.S. 19, 24 (2002)).


         Petitioner's § 2254 habeas corpus petition raises six claims of ineffective assistance of counsel, one Brady[1]violation, and one claim of sentencing error. Specifically, Petitioner alleges the following claims:

. Claim 1: Ineffective assistance of trial counsel for failing to “properly address the issue of the biased juror”;
. Claim 2: Ineffective assistance of trial counsel for failing to offer Petitioner a meaningful defense;
. Claim 3: Ineffective assistance of trial counsel for failing to adequately represent Petitioner regarding plea offers;
. Claim 4: Ineffective assistance of trial counsel for eliciting testimony regarding Petitioner's prior felony convictions;
. Claim 5: Ineffective assistance of trial counsel for failing to object to medical examiner's trial testimony;
. Claim 6: Prosecutorial misconduct of withholding exculpatory evidence;
. Claim 7: Ineffective assistance of trial counsel for failing to object to the re- enactment and use of a tech-9 handgun at trial;
. Claim 8: Trial Court erred in the application of enhancements to Petitioner's sentence of imprisonment.

         V. ANALYSIS

         A. Ineffective Assistance of Counsel: Claims One through Five and Seven

         The Sixth Amendment provides, in pertinent part, that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.” U.S. Const. Amend. VI. Under the Sixth Amendment, a defendant has a constitutional right not just to counsel, but to “reasonably effective assistance” of counsel. Strickland v. Washington, 466 U.S. 668, 687 (1984). Under the Strickland standard for proving ineffective assistance of counsel, a defendant must meet a two-pronged test: (1) that counsel's performance was deficient; and (2) that the deficient performance prejudiced the defense. Id.

         Under the first prong of the test, the appropriate measure of attorney performance is “reasonableness under prevailing professional norms.” Strickland, 466 U.S. at 688. A defendant asserting a claim of ineffective assistance must “identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment.” Id. at 690. The reasonableness of counsel's performance must be evaluated “from counsel's perspective at the time of the alleged error and in light of all the circumstances, and the standard of review is highly deferential.” Kimmelman v. Morrison, 477 U.S. 365, 381 (1986) (quoting Strickland, 466 U.S. at 689). A court considering counsel's performance “must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Strickland, 466 U.S. at 689.

         The second prong requires the petitioner to show that counsel's deficient performance prejudiced the defense. Thus, “[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.” Strickland, 466 U.S. at 691. In order to prevail on a claim of prejudice, a petitioner must show “there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” Id. at 695. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694. It is not enough “to show that the errors had some conceivable effect on the outcome of the proceeding.” Id. at 693. While both prongs must be established to meet a petitioner's burden, if “it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed.” Id. at 697.

         Any § 2254(d) claim reviewed under Strickland is “doubly deferential, ” affording both the state court and the defense attorney the benefit of the doubt. Knowles v. Mirzayance, 556 U.S. 111, 123 (2009). Further, “[w]hen § 2254(d) applies, the question is not whether counsel's actions were reasonable, ” but instead “whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.” Harrington, 562 U.S. at 105.

         In his amended habeas petition, Petitioner asserts that his trial counsel was ineffective for: (1) failing to “properly address the issue of the biased juror”; (2) failing to offer Petitioner a meaningful defense; (3) failing to adequately represent Petitioner regarding plea offers; (4) eliciting testimony regarding Petitioner's prior felony convictions; (5) failing to object to medical examiner's trial testimony; and (6) failing to object to the re-enactment and use of a tech-9 handgun at trial [Doc. 8]. Respondent argues that the state court's rejection of Petitioner's ineffective assistance of counsel claims was not contrary to or an unreasonable application of clearly established federal law or based on an unreasonable determination of fact in light of the evidence before the state court [Doc. 12 p. 11].

         1. Claim One

         Petitioner contends that trial counsel was ineffective for “failing to raise the issue of the impropriety of allowing a juror, Juror Samples, to remain with the jury despite the fact that one of Petitioner's witnesses, Terrell Gordon, was charged with assaulting that juror's son” [Doc. 8].

         The TCCA addressed the issue on appeal from the denial of the post-conviction relief and rejected Petitioner's argument. The TCCA found as follows:

The Petitioner contends that he is entitled to post-conviction relief because trial counsel failed to address during the trial the issue of a biased juror being allowed to remain on the jury. The State argues that the Petitioner has not demonstrated prejudice because the record shows that the juror was dismissed prior to jury deliberations. We conclude that the Petitioner is not entitled to relief.
The trial record reflects that after the State rested its case-in-chief, the trial court held a bench conference and informed the parties that one of the jurors, “Ms. Samples, ” had informed the court that she knew one of the witnesses, Terrell Gordon. During the conference, Samples said to the parties, “I don't know Terrell Gordon, and you all didn't mention his name. But my husband has a case where my little boy, over two years ago at the ball game . . ., [accidentally] bumped into him, and Terrell Gordon turned around and busted his nose.” Defense counsel advised the court that it was going to call Gordon as a witness during its case-in-chief, and the trial court informed Samples, “You need to look at his testimony and judge it the same as the others.” Samples replied, “Well, I mean, I can be honest, but I wanted to be fair and say, because his name hasn't been mentioned.” The trial court told Samples that “it's not anything to worry about.” The bench conference concluded, and the trial court instructed the jurors to go into the jury room. When trial resumed, six witnesses, including Gordon, testified in the Petitioner's case-in-chief, and one witness testified for the State on rebuttal. At the close of all the proof, a bench conference occurred during which the State asked the trial court, “[D]o we need to address the juror issue, about dropping that juror? We need something on record that you object or don't object to her being a juror.” The State also said, “I don't know what she's going to say in the jury room about him. And I don't want any appeal issues.” The State recommended that Samples be excused from the jury, the trial court agreed, and lead counsel stated, “I think that's probably the safest thing.”
The Petitioner contends that trial counsel were ineffective because Samples was not removed from the jury until the close of all the proof, which gave her the opportunity to make prejudicial remarks to other jurors regarding her knowledge of Gordon and the facts surrounding his assault of her son. However, the Petitioner did not call Samples or any of the jurors who deliberated on his case to testify at the evidentiary hearing to show that Samples tainted the jury with improper comments about Gordon. ...

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