United States District Court, W.D. Louisiana, Alexandria Division
BRIAN L. FRAZIER, Petitioner
REPORT AND RECOMMENDATION
H.L. PEREZ-MONTES UNITED STATES MAGISTRATE JUDGE
the Court is a Petition for Writ of Habeas Corpus under 28
U.S.C. § 2254 (Doc. 1) filed by pro se
Petitioner Brian L. Frazier (“Frazier”)
(#624162). Frazier is an inmate in the custody of the
Louisiana Department of Corrections, incarcerated at the
Concordia Parish Correctional Facility in Ferriday,
Louisiana. Frazier challenges his sentence imposed in the
Ninth Judicial District Court, Rapides Parish.
three of Frazier's claims are procedurally defaulted,
they should be DISMISSED. Frazier's other claims should
be SERVED on Respondent.
was indicted for the second-degree murder of Jarvis
Dwellingham. A jury found Frazier guilty of the lesser
included offense of manslaughter. Frazier was sentenced to 20
years at hard labor. State v. Frazier, 2014-1132
(La.App. 3 Cir. 3/4/15); 157 So.3d 1266, 1268, writ
denied, 2015-0657 (La. 2/26/16); 187 So.3d 467.
appeal, Frazier argued that “the evidence established
that he was acting in self-defense, the homicide was
justified, and the evidence did not support his
conviction.” Id. Additionally, Frazier claimed
that “he should have been granted a new trial based on
an incorrect jury instruction, or, alternatively, he should
get a new trial because ineffective counsel failed to object
to the incorrect instruction.” Id. Further,
Frazier claimed that the trial court erred by instructing the
jury it could consider flight as relevant evidence when the
evidence did not establish his flight. Id. Finally,
Frazier maintained that his sentence was excessive. The
appellate court affirmed the conviction and sentence, and the
Louisiana Supreme Court denied writs. Id.
filed an application for post-conviction relief in the trial
court claiming that he received ineffective assistance of
counsel at trial when: (1) his attorney failed to object to
the removal of negligent homicide as a responsive verdict;
(2) his attorney failed to object to an incorrect jury
instruction regarding self-defense; and (3) his attorney
failed to object to a jury instruction regarding flight.
(Doc. 1-5, pp. 44-49). The trial court denied the
application. The appellate court found that the first claim
was repetitive. (Doc. 1-2, p. 5). It also determined that the
trial court correctly concluded the record did not support a
verdict of negligent homicide but did support a jury
instruction on flight. (Doc. 1-2, p. 5). The Louisiana
Supreme Court denied writs, finding that Frazier failed to
show he received ineffective assistance of counsel under
Strickland v. Washington, 466 U.S. 668 (1984).
State v. Frazier, 2018-1287 (La. 4/8/19); 267 So.3d
§ 2254 Petition, Frazier raises the sufficiency of the
evidence claim, the excessive sentence claim, and the three
ineffective assistance of counsel claims. (Doc. 1, pp. 7-13).
However, Frazier also presents three admittedly unexhausted
claims. (Doc. 1, pp. 14-21). First, Frazier claims that,
because he was convicted by a non-unanimous jury, his
conviction violates the Constitution. (Doc. 1, pp. 17-18).
Frazier also complains that his attorney was ineffective for
failing to submit into evidence Facebook posts made by the
victim the night before and day of his death. (Doc. 1, p.
14). Finally, Frazier complains that a “CID
Supplemental Report” was not entered in evidence. (Doc.
1, p. 16).
Law and Analysis
seeking federal habeas corpus relief, a state prisoner must
exhaust available state remedies, thereby giving the State
the opportunity to pass upon and correct alleged violations
of its prisoners' federal rights. See Baldwin v.
Reese, 541 U.S. 27, 29 (2004); O'Sullivan v.
Boerckel, 526 U.S. 838, 842 (1999); Duncan v.
Henry, 513 U.S. 364, 365 (1995); 28 U.S.C. §
2254(b)(1). To provide the State with this necessary
“opportunity, ” the prisoner must “fairly
present” his claim to the appropriate state court in a
manner that alerts that court to the federal nature of the
claim. Baldwin v. Reese, 541 U.S. at 29-32
(rejecting the argument that a petitioner “fairly
presents” a federal claim, despite failing to give any
indication in his appellate brief of the federal nature of
the claim through reference to any federal source of law,
when the state appellate court could have discerned the
federal nature of the claim through review of the lower state
court opinion); Gray v. Netherland, 518 U.S. 152,
162-63 (1996) (claim for federal relief must include
reference to a specific constitutional guarantee, as well as
a statement of facts that entitle the petitioner to relief).
default exists where: (1) a state court clearly and expressly
bases its dismissal of the petitioner's constitutional
claim on a state procedural rule and that procedural rule
provides an independent and adequate ground for the dismissal
(“traditional” procedural default); or (2) the
petitioner fails to properly exhaust all available state
court remedies, and the state court which he would be
required to petition would now find the claims procedurally
barred (“technical” procedural default). In
either instance, the petitioner is considered to have
forfeited his federal habeas claims. Bledsue v.
Johnson, 188 F.3d 250, 254-5 (5th Cir. 1999). The
grounds for traditional procedural default must be based on
the actions of the last state court rendering a judgment.
Harris v. Reed, 489 U.S. 255, 262 (1989).
case, Frazier alleges that he exhausted state court remedies
as to all but three claims. Because his conviction became
final on May 26, 2016, and Louisiana law affords two years
within which to seek post-conviction relief, La.C.Cr.P. art.
930.8, the claims are now procedurally barred. Thus,
Frazier's unexhausted claims are procedurally defaulted.
habeas petitioner can overcome a procedural default by
showing cause and actual prejudice for his default or
demonstrating that the federal court's failure to review
the defaulted claim will result in a “fundamental
miscarriage of justice.” Glover v. Cain, 128
F.3d 900, 902 (5th Cir. 1997). To establish cause, the
petitioner must show that ...