Frazier v. Dretke , 145 F. App'x 866 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 10, 2005
_____________________
Charles R. Fulbruge III
No. 04-70040 Clerk
_____________________
DERRICK FRAZIER,
Petitioner - Appellant,
versus
DOUG DRETKE, Director,
Texas Department of Justice,
Correctional Institutions Division,
Respondent - Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
District Cause No. V-02-110
_________________________________________________________________
Before JONES, BARKSDALE, and PRADO, Circuit Judges.
PRADO, Circuit Judge.*
Derrick Frazier, a Texas inmate, was convicted of capital
murder and sentenced to death. Frazier seeks a certificate of
appealability (COA) to appeal the district court’s denial of his
application for federal habeas relief. After considering that
request, this court denies a COA.
Background of Frazier’s Complaints
The indictment against Frazier charged him with committing
*
Pursuant to 5TH CIRCUIT RULE 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIRCUIT
RULE 47.5.4.
1
capital murder under five different theories: The first
paragraph alleged that Frazier murdered Betsy Nutt and Cody Nutt
during the same criminal transaction; the second paragraph
alleged that Frazier murdered Betsy Nutt in the course of robbing
her; the third paragraph alleged that Frazier murdered Cody Nutt
in the course of robbing Betsy Nutt; the fourth paragraph alleged
that Frazier murdered Betsy Nutt in the course of burglarizing
the home of Ron Lucich; and the fifth paragraph alleged that
Frazier murdered Cody Nutt in the course of burglarizing Lucich’s
home.
On direct appeal, the Texas Court of Criminal Appeals
summarized the evidence of Frazier’s guilt as follows:
Michael Brown testified that, on the evening of
June 25, 1997, he drove [Frazier] and Jermaine Herron
to the Lucich home, which was located approximately ten
miles from Refugio in the country. [Frazier] and
Herron had been inside the place before and knew where
guns were kept. In the car, [Frazier] and Herron
discussed the plan for stealing the guns. The plan was
that they would quickly retrieve the guns and kill
anyone in the home. However, before they could enter
the Lucich home, the lights came on. As a result, the
three men drove away from the scene before commencing a
burglary. The next morning, Brown drove [Frazier] and
Herron back to the Lucich home, dropped them off, and
drove away.
In his videotaped confession, [Frazier] narrated
the following set of events occurring that morning.
After burglarizing the Lucich home, [Frazier] and
Herron took a pistol and went to the Nutt residence.
Hiding the pistol, the two men approached Betsy Nutt,
and Herron conversed with her. After this
conversation, Betsy offered to take [Frazier] and
Herron to Refugio. The three of them entered Betsy’s
pickup truck, but, as she started the engine, Betsy
realized she had forgotten her mobile phone. She
2
turned off the engine and went back inside her home to
retrieve the phone. While Betsy was in her home,
Herron told [Frazier] that “I’m going to do ‘em now,”
which [Frazier] took to mean that Herron was going to
kill the home’s occupants. [Frazier] responded, “It’s
your business.” When Betsy came back to her truck and
started the engine, Herron told her that he needed to
use the bathroom. Betsy told him that he could go
inside and do so, and Herron entered the Nutt
residence. Soon afterwards, Herron returned from the
residence and told Betsy that she had a telephone call.
Betsy exited the truck and entered her home, with
[Frazier] following her. Once inside the Nutt home,
Herron pointed the pistol at Betsy and told her not to
move. Hearing the commotion, Cody Nutt [(Betsy’s son)]
came into the room occupied by [Frazier], Herron, and
Betsy. Then Herron shot Cody with the pistol. After
shooting Cody, Herron handed the gun to [Frazier] and
told [Frazier] to shoot Betsy. Although he did not
want to do it, [Frazier] shot Betsy twice. Both shots
hit Betsy in the head. The first shot was from six to
seven feet away while the second shot occurred when
[Frazier] was standing over Betsy with the gun two or
three feet away from her. Then Herron set the house on
fire, and Herron and [Frazier] drove away in Betsy’s
truck.1
According to Brown’s testimony, Herron later
called Brown on the telephone. During their
conversation, Herron told Brown that he (Herron) had
killed a lady and a little boy. However, at a later
date, when Brown and Herron were in jail, Herron told
Brown that [Frazier] was the one who shot both persons.
Upon hearing this evidence, the jury returned a guilty verdict.
After the State presented its punishment evidence, the jury
answered the three special punishment issues in the affirmative.
Accordingly, the trial court imposed the death penalty.
1
In his confession, Frazier explained that after he and
Herron shot Betsy and Cody, they drove back to the Lucich
residence in Betsy’s truck, gathered up the property they had
collected earlier, set fire to the Lucich residence, and then
drove back to Refugio in Betsy’s truck.
3
The Texas Court of Criminal Appeals affirmed Frazier’s
conviction. That court later denied Frazier’s state habeas
application. Subsequently, the district court denied Frazier’s
federal habeas application and his request for a COA. Frazier
has asked this court for a COA on two issues.
Standard for Obtaining a COA
To obtain a COA, Frazier must make “a substantial showing of
the denial of a constitutional right.”2 To make this showing,
Frazier must demonstrate that “reasonable jurists could debate
whether (or, for that matter, agree that) the petition should
have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed
further.”3 Where the district court denied relief on the merits,
rather than on procedural grounds, Frazier “must demonstrate that
reasonable jurists would find the district court’s assessment of
the constitutional claims debatable or wrong.”4 Where the
district court denied relief on a procedural ground, Frazier must
show reasonable jurists would find it debatable whether the
petition states a valid claim of the denial of a constitutional
right and that reasonable jurists would find it debatable whether
2
28 U.S.C. § 2253(c)(2); see Miller-El v. Cockrell, 537 U.S.
322, 336 (2003); Slack v. McDaniel, 529 U.S. 473, 483 (2000).
3
Miller-El, 537 U.S. at 336 (quoting Slack, 529 U.S. at
484).
4
Slack, 529 U.S. at 484.
4
the court was correct in its procedural ruling.5
In determining whether to grant a COA, this court’s
examination is limited to a threshold inquiry into the underlying
merit of Frazier’s claim.6 “This threshold inquiry does not
require full consideration of the factual or legal bases adduced
in support of the claims.”7 Instead, this court’s determination
is based on “an overview of the claims in the habeas petition and
a general assessment of their merits.”8 “Any doubt regarding
whether to grant a COA is resolved in favor of the petitioner,
and the severity of the penalty may be considered in making this
determination.”9
Frazier’s Complaint About the Jury Charge
Frazier contends that he was denied due process because the
state trial judge combined the five theories alleged in the
indictment into a single submission for the jury. The trial
judge submitted the theories to the jury in a disjunctive manner.
The jury returned a general verdict of “Guilty of capital murder
as charged in the indictment.” Frazier maintains that the jury
charge permitted the jury to find him guilty without unanimously
5
Id.
6
Miller-El, 537 U.S. at 336.
7
Id. at 337.
8
Id.
9
Miniel v. Cockrell, 339 F.3d 331, 336 (5th Cir. 2003).
5
believing him guilty on a single theory.
Frazier first complained about the jury charge in his state
habeas petition. The state habeas judge determined that
Frazier’s trial attorney failed to object to the jury charge and
concluded that Frazier had waived any error. The Texas Court of
Criminal Appeals then denied Frazier’s application based on the
state habeas judge’s findings of fact and conclusions of law.
Four of the justices of the court, however, dissented from the
denial of Frazier’s application. The dissenting justices
observed that the court had in the past recognized that charge
error of constitutional dimension was cognizable in a habeas
proceeding.10
Frazier raised the claim again in his application for
federal habeas relief. The district court determined that the
operation of state law barred federal consideration of the claim.
The court further determined that Frazier had failed to
demonstrate cause for his procedural default or that failing to
consider the claim would result in a fundamental miscarriage of
justice. Frazier seeks a COA to challenge the district court’s
resolution of his claim. Frazier argues that reasonable jurists
would disagree with the district court’s conclusion that the
state court adjudication of his claim was not contrary to or an
unreasonable application of federal law. He maintains that the
10
Ex Parte Derrick Frazier, 67 S.W.3d 189, 190 (Tex. Crim.
App. 2001) (Holland, J., dissenting).
6
dissenting opinion in his state habeas case demonstrates that
reasonable jurists would disagree about the resolution of his
claim.
The scope of federal habeas review is limited in part by the
doctrine of procedural default.11 “Procedural default exists
where . . . a state court clearly and expressly bases its
dismissal of a claim on a state procedural rule, and that
procedural rule provides an independent and adequate ground for
the dismissal. . . .”12 To be adequate, a state procedural rule
must be strictly or regularly followed by the state court; that
is, it must be “strictly or regularly applied evenhandedly to the
vast majority of similar claims.”13 Where a petitioner contends
a state procedural rule is not strictly or regularly followed, he
must show “that the state has failed to apply the procedural bar
rule to claims identical or similar to those raised by the
petitioner himself.”14 If he does not make this showing, a
procedural default exists and “the petitioner is deemed to have
forfeited his federal habeas claim.”15
The “Texas contemporaneous objection rule, upon which the
11
Bledsue v. Johnson, 188 F.3d 250, 254 (5th Cir. 1999).
12
Bledsue, 188 F.3d at 254.
13
Amos v. Scott, 61 F.3d 333, 339 (5th Cir. 1995).
14
Stokes v. Anderson, 123 F.3d 858, 860 (5th Cir. 1997).
15
Bledsue, 188 F.3d at 254.
7
state court relied in this case, is an adequate and independent
state ground that procedurally bars federal habeas review.”16
Under that rule, “a petitioner is deemed to have waived any error
by failing to raise an objection.”17 Here, there is no question
that Frazier’s trial attorney failed to object to the jury
charge. Although Frazier does not specifically address the issue
of procedural default, he at least suggests that the dissent from
the denial of his state habeas application indicates that the
Texas contemporaneous objection rule is not strictly or regularly
applied. This court has determined otherwise, observing that the
Texas Court of Criminal Appeals “strictly or regularly enforces
the contemporaneous objection rule.”18 Although the dissenting
justices insisted that the rule is not absolute, Texas
jurisprudence makes it clear that the failure to object to a
purported charge error precludes review in a habeas proceeding
unless the petitioner demonstrates that the charge error “in
light of the trial as a whole, so infected the procedure that the
applicant was denied a fair and impartial trial.”19 Yet the
16
Cotton v. Cockrell, 343 F.3d 746, 754 (5th Cir. 2003).
17
Haley v. Cockrell, 306 F.3d 257, 262 n.8 (5th Cir. 2002).
18
Amos, 61 F.3d at 342; see Rogers v. Scott, 70 F.3d 340
(5th Cir. 1995) (determining that Texas courts have not applied
the contemporaneous objection rule erratically or
inconsistently).
19
Ex Parte Maldonado, 688 S.W.2d (Tex. Crim. App. 1985); see
Ex parte Coleman, 599 S.W.2d 305, 306 (Tex. Crim. App. 1978)
(requiring habeas applicant to demonstrate that “‘the ailing
8
dissenting justices identified no cases where a petitioner met
that burden and only one case where the court reviewed
unobjected-to charge error on habeas review.20 This court
identified only two habeas proceedings where an intermediate
court of appeals reviewed unobjected-to charge error.21
Although it appears that two Texas courts have reviewed
unobjected-to charge error in a habeas proceeding, “an occasional
act of grace by a state court in excusing or disregarding a state
instruction by itself so infected the entire trial that the
resulting conviction violates due process’”) (quoting Cupp v.
Naughten, 414 U.S. 141, 147 (1973)).
20
The dissenting justices cited three habeas cases for their
proposition that the court of criminal appeals reviews
unobjected-to charge error in habeas cases, yet the court
reviewed unobjected-to charge error only one of those cases. See
Ex parte McKay, 819 S.W.2d 478, 480 (Tex. Crim. App. 1990)
(considering whether the trial court erred in restricting the
scope of voir dire examination); Ex parte Maldonado, 688 S.W.2d
at 116 (explaining that a habeas applicant must demonstrate that
an unobjected-to charge error infected his trial so as to deny
him a fair and impartial trial, but determining that the
applicant failed to allege sufficient facts that would entitle
him to review and dismissing the application); Ex parte Coleman,
599 S.W.2d at 307 (stating that jury charge error rarely rise to
constitutional error and concluding, without explaining why, that
the habeas applicant failed to show that his due process right
was violated by unobjected-to jury charge error).
21
See Jones v. State, No. 14-03-00499-CR, 2004 WL 438676, at
*2 (Tex. App.——Houston [14 Dist.] 2004, pet. ref’d) (not
designated for publication) (reviewing alleged jury charge error
on writ of habeas corpus for egregious harm even though the
appellant did not object at trial); Thacker v. State, 999 S.W.2d
56, 65 (Tex. App.——Houston [14 Dist.] 1999, pet. ref’d)
(requiring habeas applicant to prove that alleged unobjected-to
jury charge error denied her a fair and impartial trial).
9
procedural rule does not render the rule inadequate.”22 Frazier
has not shown that the Texas contemporaneous objection rule does
not apply to his claim. As a result, a procedural default
exists, and federal review is
precluded unless Frazier can overcome his procedural bar.23
A state prisoner can overcome a procedural default by
demonstrating cause for the default and actual prejudice
resulting from the purported violation of federal law, or by
demonstrating that failing to consider the claim will result in a
fundamental miscarriage of justice.24 To show cause for the
default, Frazier must show that “he was impeded by some objective
factor external to the defense, such as governmental interference
or the reasonable unavailability of the factual basis for the
claim.”25 Frazier, however, has not advanced any external factor
that impeded his attorney from objecting to the jury charge, and
the factual basis for Frazier’s claim existed at trial. Thus,
Frazier has not shown cause for his default. Because he has not
shown cause, there is no need to determine whether Frazier
demonstrated actual prejudice.
22
Amos, 61 F.3d at 342; see also Bass v. Estelle, 705 F.2d
121, 122-23 (5th Cir. 1983) (declining to consider an occasional
act of grace by Texas courts as the failure to strictly or
regularly follow the state's contemporaneous objection rule).
23
Coleman v. Thompson, 501 U.S. 722, 750 (1991).
24
Coleman, 501 U.S. at 750.
25
McCleskey v. Zant, 499 U.S. 467, 468 (1991).
10
To demonstrate that the failure to consider his claim will
result in a fundamental miscarriage of justice,26 Frazier must
make a persuasive showing that he is actually innocent.27
Frazier, however, does not claim that he is innocent or advance
any argument about innocence. Thus, he has not shown that a
fundamental miscarriage of justice will result.
Frazier has not shown cause for his default and has failed
to demonstrate that a fundamental miscarriage of justice will
result; thus, Frazier has failed to overcome his procedural bar.
Consequently, reasonable jurists would not debate the district
court’s conclusion that the procedural default bars federal
review. As a result, Frazier is not entitled to a COA on his
jury charge claim.
Frazier’s Ineffective Assistance of Counsel Claim
Frazier also maintains that his trial attorney was
ineffective for failing to investigate his background and for
failing to present mitigation evidence during the punishment
phase of his trial. At trial, the prosecutor called several
punishment witnesses who testified about Frazier’s violent
nature. Frazier’s attorney, however, did not call any witnesses.
Frazier first complained about his attorney’s failure to
present mitigating evidence in his state habeas application. To
26
Coleman, 501 U.S. at 750.
27
Sawyer v. Whitley, 505 U.S. 333, 339-40 (1992).
11
support his complaint, Frazier presented affidavits from his
grandmother and his aunt. In those affidavits, the affiants
described how Frazier was abandoned by his mother when he was a
teenager and how his mother died shortly thereafter. The
affiants presented Frazier as a good child who was left alone by
the death of his mother and who was dependent thereafter on his
aunt for support. After considering the affidavits and the trial
record, the state habeas court determined that Frazier’s trial
attorney actually presented the information contained in the
affidavits by cross-examining the state’s punishment witnesses,
and thus concluded that the attorney was not ineffective in
failing to present the mitigating evidence.
Frazier expanded his claim in his federal habeas proceeding.
In the district court, Frazier argued that his trial attorney was
unreasonable for failing to investigate the possibility that
Frazier’s family and friends could have provided evidence that
could have resulted in a life sentence in lieu of the death
penalty. Frazier maintained that his trial attorney failed to
investigate numerous mitigating factors: beatings with a belt by
his step-father; his adaptability to prison life as evidenced by
good behavior and obtaining a GED; his involvement as a child in
his church and community; his reputation among his school
teachers, school administrators, and coaches; the neighborhood in
which he was reared; whether he was a leader or a follower; his
substance abuse; and potential emotional problems caused by the
12
death of his mother. Frazier supported his claim with eighteen
affidavits which presented Frazier as a loving and well-behaved
child who went bad only after he lost his mother. Frazier also
presented a mitigation prospectus in which a mitigation expert
opined that “there were factors present in the life of Mr.
Frazier which were not investigated and which might be shown to
be mitigating factors to the crime.”
Considering Frazier’s expanded claim, the district court
observed that Frazier’s federal claim asserts a “legal argument
and evidentiary support that fundamentally differs from that
evidence anticipated by his state claim” and determined that
Frazier had not exhausted his claim to the extent that it
exceeded the evidence presented in state court. As for the
exhausted portion of the claim, the district court determined
that the state habeas court’s resolution of the claim was
reasonable based on the evidence presented to the state habeas
court. The court explained that although a reasonable attorney
making a prudent investigation into Frazier’s background would
have uncovered a great deal of potentially mitigating evidence,
nothing indicated that the result of the proceeding would have
been different had the attorney presented a mitigation case.
Frazier seeks a COA to challenge the district court’s
resolution of his ineffective assistance of counsel claim. In
seeking a COA, Frazier criticizes the state habeas court for not
focusing on the reasonableness of the investigation supporting
13
his trial attorney’s decision to not introduce mitigating
evidence. Frazier relies on Wiggins v. Smith28 where the Supreme
Court explained that the focus in an ineffective assistance claim
is not on whether counsel should have presented a mitigation
case, but rather on whether the investigation supporting
counsel’s decision not to introduce mitigating evidence was
itself reasonable.29 Frazier, however, does not address the
issue of exhaustion, except to emphasize that the district court
struggled in reaching its determination. Because Wiggins did not
change the requirement that a petitioner must exhaust his state
court remedies30 or the requirements for demonstrating
ineffective assistance of counsel,31 Frazier cannot show that
reasonable jurists would debate the district court’s treatment of
his claim.
First, reasonable jurists would not debate the district
court’s determination that Frazier did not exhaust his federal
habeas claim.32 “A federal habeas petitioner must exhaust state
28
539 U.S. 510 (2003).
29
Wiggins, 539 U.S. at 522.
30
28 U.S.C. § 2254(b)(1).
31
Strickland v. Washington, 466 U.S. 668, 687 (1984).
32
See Slack, 529 U.S. at 484 (requiring a petitioner who
challenges the district court’s determination that a claim is
procedurally barred to show that reasonable jurists would find it
debatable whether the court was correct in its procedural
ruling).
14
remedies before he can obtain federal habeas relief.”33 To
exhaust a claim in state court, a petitioner must fairly present
the substance of the claim to the state court.34 A petitioner
fails to satisfy the exhaustion requirement where he “‘advances
in federal court an argument based on a legal theory distinct
from that relied upon in the state court.’”35 He also fails to
satisfy the exhaustion requirement if he “presents newly
discovered evidence or other evidence not before the state courts
such as to place the case in a significantly different and
stronger evidentiary posture than it was when the state courts
considered it.”36
Here, Frazier presented an evidentiary basis for his federal
claim that was significantly different from the evidence he
presented in state court. In state court, Frazier complained
about his attorney’s failure to present a mitigation case and
contended that his attorney failed to investigate any possible
aggravating factors presented by the state. In federal court, he
complained about the unreasonableness of the investigation that
served as the basis for his attorney’s decision not to present a
mitigation case. Although the legal theories he relied on in
33
Carey v. Saffold, 536 U.S. 214, 220 (2002).
34
28 U.S.C. § 2254(b)(1).
35
Wilder v. Cockrell, 274 F.3d 255, 259 (5th Cir. 2001)
(citations omitted).
36
Brown v. Estelle, 701 F.2d 494, 495 (5th Cir. 1983).
15
state court are essentially the same theories he advanced in
federal court, Frazier presented a significantly different
evidentiary basis for his federal claim. The brief affidavits he
presented in state court present Frazier as a good boy who was
abandoned by his mother and left dependent on his aunt for
assistance. The eighteen affidavits supporting his federal claim
present much more. The affidavits describe a well-behaved and
sweet child who was very involved in his church and performed
well in school, but got involved with drugs and a bad crowd after
his mother died. The affidavits describe Frazier’s poor family
social history, unstable home life, good school performance, and
non-violent nature. Together, the federal affidavits suggest
that Frazier’s criminal conduct was due to bad friends, drugs, a
troubled and abusive childhood, living in the projects, a
follower’s mentality, and psychological issues. This information
was not presented to the state court and places Frazier’s case in
a significantly different and stronger evidentiary posture than
it was when the state court considered it. Although a habeas
petitioner may under some circumstances present evidence that was
not presented to the state court, evidence that places his claim
“in a significantly different legal posture must first be
presented to the state courts.”37 The affidavits Frazier
presented in the district court do not merely supplement the
37
Anderson v. Johnson, 338 F.3d 382, 386-87 (5th Cir. 2003)
(internal quotations omitted).
16
information presented to the state court; instead, they present
numerous mitigating factors that were not presented to the state
court. As a result, the district court’s procedural ruling that
Frazier failed to exhaust his claim is correct. Thus, Frazier’s
claim is barred to the extent that it exceeds the evidentiary
basis presented in state court.
Second, reasonable jurists would not debate the district
court’s resolution of Frazier’s unexhausted claim——that his
attorney was ineffective for failing to present mitigation
witnesses. To establish ineffective assistance of counsel, a
criminal defendant must show that his attorney’s assistance was
deficient and that the deficiency prejudiced him.38 “To
establish deficient performance, a petitioner must demonstrate
that counsel's representation ‘fell below an objective standard
of reasonableness.’”39 “In any case presenting an
ineffectiveness claim, the performance inquiry must be whether
counsel's assistance was reasonable considering all the
circumstances.”40 To show prejudice, the defendant must show a
reasonable probability that, absent his attorney’s error, the
jury would have concluded that the balance of aggravating and
38
Strickland, 466 U.S. at 687; Hopkins v. Cockrell, 325 F.3d
579, 586 (5th Cir. 2003).
39
See Wiggins, 539 U.S. at 522 (quoting Strickland, 466 U.S.
at 688).
40
Strickland, 466 U.S. at 688.
17
mitigating circumstances did not warrant the death sentence.41
The state habeas judge determined that Frazier’s attorney
was not deficient——the first part of the test for ineffective
assistance of counsel——but the district court was troubled by the
lack of an explanation for why the attorney failed to investigate
the possibility that family members could provide mitigation
evidence. Faced with the numerous affidavits Frazier presented
with his federal habeas petition, the district court questioned
the reasonableness of the attorney’s performance, but determined
that Frazier could not show that the result of his trial would
have been different even if the attorney had called mitigation
witnesses.
Although the district court resolved this claim without
making a determination about deficient performance, the state
judge’s determination that the attorney was not deficient was not
an unreasonable application of clearly established federal law
for determining whether an attorney’s performance was
deficient.42 The trial attorney’s cross-examination of state
punishment witness Courtney La Font revealed that Frazier’s
mother had abandoned him when he was 15 and that his mother died
41
Id. at 695.
42
See Pondexter v. Dretke, 346 F.3d 142, 145 (5th Cir. 2003)
(explaining that a petitioner seeking habeas relief based on
ineffective assistance of counsel must show that the state
court’s adjudication of his claim constitutes an unreasonable
application of clearly established federal law).
18
shortly afterwards. La Font explained that his mother’s death
left Frazier feeling hurt, confused, and alone. She stated that
Frazier lived periodically with his father and his aunt when his
mother was still living and that he started using drugs. This
information is essentially the same information that was
presented in the affidavits of Frazier’s grandmother and aunt.
In addition, the attorney’s cross-examination of two other
state punishment witnesses showed that Frazier had previously
completed a boot-camp program without disciplinary action and
that Frazier earned his GED while incarcerated. This testimony
evidenced the possibility that Frazier could be incarcerated
without posing a danger to others. Thus, Frazier’s trial
attorney presented mitigation evidence.
As for the second part of the test for ineffective
assistance of counsel, reasonable jurists would not debate the
correctness of the district court’s determination that nothing
indicated that the result of Frazier’s trial would have been
different. The state presented several punishment witnesses who
testified about various violent acts committed by Frazier. This
testimony revealed that Frazier was a gang member, robbed a man
at age 15, raped his girlfriend at age 16, committed an
aggravated assault at age 17, was convicted for unlawfully
carrying a weapon while he was on probation at age 18, and
assaulted a 17-year-old at age 20. The state’s punishment
evidence indicated that Frazier engaged in repeated and
19
escalating acts of violent behavior and that efforts to
rehabilitate him failed.
The evidence portrayed Frazier as a violent person who poses
a danger to others. Yet nothing in either the affidavits
presented to the state court——or even in the plethora of
affidavits presented to the federal court, were they, contrary to
this opinion, to be considered——suggests that the jury would have
considered a life sentence in lieu of the death penalty. As the
district court observed, “[t]he instability of Frazier’s
childhood and his good nature as a youth, when compared to the
violent life he chose to live and failed to reform, would not
call for a reasonable probability of a different result.” Thus,
no reasonable probability exists that, had Frazier’s attorney
called Frazier’s grandmother and aunt as mitigation witnesses,
the jury would have returned a life sentence.
Frazier has not demonstrated that reasonable jurists would
debate the correctness of the district court’s resolution of his
claim. As a result, he is not entitled to a COA on his
ineffective assistance of counsel claim.
Conclusion
Because Frazier has not shown that reasonable jurists would
debate the district court’s resolution of his claims, the court
DENIES Frazier’s request for a COA.
APPLICATION DENIED.
20
21