United States District Court, E.D. Tennessee
TORREY L. FRAZIER, Petitioner,
DEBRA JOHNSON, Respondent.
A. VARLAN, CHIEF UNITED STATES DISTRICT JUDGE.
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
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
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.
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.
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.
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
facts of this case have been previously summarized by the TSC
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).
STANDARD OF REVIEW
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).
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.
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
§ 2254 habeas corpus petition raises six claims of
ineffective assistance of counsel, one
Bradyviolation, 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
. 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
Ineffective Assistance of Counsel: Claims One through Five
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.
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
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.
§ 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.
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].
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].
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
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. ...