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Frazier v. Warden

United States District Court, W.D. Louisiana, Alexandria Division

July 29, 2019

BRIAN L. FRAZIER, Petitioner
v.
WARDEN, Respondent

          DRELL JUDGE

          REPORT AND RECOMMENDATION

          JOSEPH H.L. PEREZ-MONTES UNITED STATES MAGISTRATE JUDGE

         Before 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.

         Because three of Frazier's claims are procedurally defaulted, they should be DISMISSED. Frazier's other claims should be SERVED on Respondent.

         I. Background

         Frazier 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.

         On 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.

         Frazier 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 60.

         In his § 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[1]. (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).

         II. Law and Analysis

         Before 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).

         Procedural 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).

         In this 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.

         A 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 ...


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