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Frazier v. Hansen

United States District Court, D. Nebraska

February 11, 2019

WILLIE C. FRAZIER, Petitioner,
v.
BRAD HANSEN, Respondent.

          MEMORANDUM AND ORDER

          RICHARD G. KOPF SENIOR UNITED STATES DISTRICT JUDGE

         Willie C. Frazier (Petitioner) has filed a petition for writ of habeas corpus under the provisions of 28 U.S.C. § 2254. The Respondent has answered and filed the relevant state court records. The parties have now fully briefed the case. I deny the petition with prejudice for the reasons set forth below.

         Claims

         Summarized and condensed, Petitioner has two claims that are potentially cognizable in this court. They are set forth below.

         Claim One: Trial and appellate counsel were ineffective because of: (1) the failure to obtain a police report regarding the gun and because of the failure to argue at trial and on appeal that Petitioner was never in actual possession of the gun; (2) trial counsel's failure to call witnesses for Petitioner; (3) trial and appellate counsel's failure to attack “Count III, ” a habitual offender allegation, inasmuch as such an allegation should not have been described as a “Count.” Claim Two: Appointed trial counsel and appellate counsel failed to challenge the trial court's refusal to allow retained counsel to represent Petitioner.

         Background

         I start with a description of this case taken from the Nebraska Court of Appeals while resolving the direct appeal.

Christopher Perna, an officer with the Omaha Police Department, applied for a search warrant on February 10, 2011, seeking permission from the court to search premises located at a particular address in Omaha for marijuana, money, telephones, records, and weapons used to conduct an illegal narcotics operation. In support of the search warrant application, Perna stated in an affidavit that he was investigating an anonymous tip received from a person who stated that Rodney Anthony, who lives at the premises, was selling crack cocaine and marijuana from the home. Perna confirmed that Anthony had provided the same address during contacts with other police officers, that the address was on his driver's license, and that the utilities for the address were in Anthony's name. Perna also discovered that Anthony had numerous marijuana charges, was sentenced to 1 year's imprisonment in 2004 for possession with intent to distribute crack, and spent 4 years in a federal penitentiary for conspiracy to distribute a controlled substance, crack, in 2004. Anthony also had several arrests involving weapons.
Perna's affidavit further stated that on February 9, 2011, he went to Anthony's address on “trash day” and located a trash bag sitting outside near the street. The trash was likely put out the night before and was seized at 5 or 6 a.m. Perna transported the bag to a secure facility and located loose, green plant material resembling stems in the bag. Perna knew from his experience that the items were a byproduct of marijuana. Perna also located an envelope with Anthony's name and address on it. Later that day, Perna received confirmation from the forensic laboratory that the materials tested positive for marijuana.
Perna requested a no-knock search warrant, because the evidence being sought could easily be destroyed by flushing it down a toilet or sink. Perna also was aware of several gun charges which may pose a threat to the officers executing the search warrant. A no-knock search warrant was obtained on February 10, 2011, and executed on February 16 by an Omaha Police Department SWAT team.
Officer Paul Milone operated the iron “ram” that knocked in the door. Officer Thad Trosper was the first member of the SWAT team inside the residence. Trosper observed an individual on the floor next to a glass table. Trosper gave a command to the individual not to move. The individual was later identified as Frazier. There was also a woman on the floor to the left of Frazier. No. one else was in the home.
When Milone entered the residence, he made contact with Frazier, who was on the floor of the living room next to a coffee table. For the officers' safety, Milone said to Frazier, “Sir, you're known to carry firearms. Do you have a gun on you now?” Frazier responded, “Yes, I have one by my right hand.” A handgun was found in the position that Frazier indicated, approximately 6 to 8 inches from Frazier's right hand.
Officer Scott Beran, another member of the SWAT team that executed the warrant, assisted in clearing the house and then returned to the living room where Frazier had been located. Prior to Beran's securing Frazier in handcuffs, he was able to view the gun just a few inches from Frazier's right hand. An officer arrived to take photographs of the scene without moving the firearm or Frazier. After the photographs were taken, Beran retrieved the gun, dropped the magazine from it, and cleared the round which was in the chamber. The magazine contained an additional 10 rounds. No. latent fingerprints were found on the gun.
Perna took Frazier into the kitchen area of the house to interview him. Frazier told Perna that Anthony is his nephew. After reading Frazier his Miranda rights, Frazier agreed to speak with Perna. Frazier told Perna that he was living at Anthony's residence and sleeping on the couch. Perna told Frazier that officers located a handgun within Frazier's reach or close to Frazier's person, and Frazier acknowledged that it was there and that he pointed it out to the officers. Frazier stated that Anthony had been a victim of home invasion robberies recently and that Frazier had a handgun for protection.
The warrant and inventory was returned on March 1, 2011. The inventory included a gun that was found in the living room “next to Frazier” and one live round from the gun's chamber. In other areas of the house, officers also seized surveillance cameras, bullets, bills, marijuana, hydrocodone pills, crack pipes, and cash.
On March 15, 2011, the State filed an information in Douglas County District Court charging Frazier with possession of a deadly weapon by a prohibited person, a Class ID felony, and possession of a stolen firearm, a Class III felony. The State also alleged that Frazier was a habitual criminal.
Frazier filed a motion to suppress all evidence seized from the residence because the evidence was obtained in violation of his constitutional rights. Frazier alleged that the search warrant was not supported by sufficient evidence to establish probable cause and that the execution of the search warrant by force and without notice violated his Fourth Amendment rights.
The court heard testimony and received a copy of the search warrant application and search warrant into evidence. Based upon this evidence, the district court found that the search warrant was validly issued and was supported by sufficient probable cause. It further found that the service was done within the time limit specified by statute. Accordingly, the court denied the motion to suppress.
A jury trial was held on August 4 and 5, 2011. Prior to the commencement of the trial, the State dismissed the charge of possession of a stolen firearm. The parties stipulated that Frazier had a prior felony record and was thus a “prohibited person.” Testimony was heard from the various police officers, crime laboratory technicians, and the chief deputy clerk of the district court as outlined above.
At the jury instruction conference, Frazier objected to the court's proposed instruction defining the element of possession. Frazier proposed a jury instruction defining “possession” as “either knowingly having the object on one's person; or knowing of the object's presence, having the ability to control it, and the intent to do so.” The court rejected this proposed instruction and overruled Frazier's objection to the court's instruction of the definition of possession.
Following deliberations, the jury found Frazier guilty of possession of a deadly weapon by a prohibited person. The district court accepted the jury's verdict, ordered an enhancement hearing on the habitual criminal allegation, and ordered a presentence investigation. On October 7, 2011, an evidentiary enhancement hearing was held to determine whether Frazier was a habitual criminal as charged in the information. The evidence indicated that Frazier was convicted of eight felonies from April 1994 to March 2004. The court found that Frazier was a habitual criminal.
A sentencing hearing was held on October 18, 2011. The court sentenced Frazier to 16 to 30 years' imprisonment, with the first 10 years of the sentence to run without good time credit. Frazier subsequently perfected his appeal to this court.

State v. Frazier, No. A-11-931, 2012 WL 4009722, at *1-3 (Neb. Ct. App. Sept. 11, 2012); filing no. 6-1 at CM/ECF pp. 1-3.

         The lawyers who represented Petitioner at trial were from the public defender's office and one of them also represented Petitioner on direct appeal. After the adverse Court of Appeals' decision, no petition for further review to the Nebraska Supreme Court was filed. (Filing no. 6-3.) The Court of Appeals decision was issued September 11, 2012.

         None of the claims presented here were presented to the Nebraska Court of Appeals on the direct appeal. On the contrary, the following claims were asserted: (1) the district court erred in denying Petitioner's motion to suppress, (2) the district court erred in its jury instruction regarding possession, (3) the evidence adduced at trial was insufficient to find Petitioner guilty beyond a reasonable doubt, and (4) the sentence imposed was excessive.

         On May 9, 2013, Petitioner filed a post-conviction action. It was later amended. Petitioner asserted nine claims, to wit: (1) ineffective assistance of appellate counsel for failing to raise on direct appeal that the trial court erred in overruling his motion to suppress statements; (2) ineffective assistance of trial and appellate counsel for failing to challenge the habitual criminal allegation and finding; (3) the trial court committed plain error when it found him to be a habitual criminal because the finding resulted in a double sentence enhancement; (4) ineffective assistance of trial counsel for failing to file a motion to suppress the evidence on grounds that the weapon was not found on his person and law enforcement did not witness him throw the weapon; (5) ineffective assistance of trial counsel for failing to file a motion to quash the Information because he did not possess the weapon; (6) ineffective assistance of trial counsel for failing to call Dana Wells as a witness at trial to “call[] into question” the location of the weapon; (7) ineffective assistance of trial counsel for failing to make a Batson challenge; (8) ineffective assistance of appellate counsel for failing to properly argue on direct appeal issues with regard to the search warrant and his arrest; (9) ineffective assistance of appellate counsel for failing to raise on direct appeal the Batson issue; (10) the trial court committed plain error when it gave Jury Instruction No. 9 and failed to give the jury his proposed instruction on “proximity”; and (11) the trial court erred when it denied his right to hire private counsel.[1]

         (Filing No. 8, pp. 6-7.)

         On August 4, 2017, the state district court entered an order on Petitioner's amended motion, denying post-conviction relief without an evidentiary hearing. (Id. at CM/ECF pp. 62-68.) With regard to Petitioner's ineffective assistance of counsel claims, the state district court concluded generally that the record showed no prejudice in light of the evidence adduced against him at trial and that, in the alternative, Frazier failed to allege specific allegations of prejudice for his claims. (Id. at CM/ECF pp. 63-64.) It nevertheless addressed a portion of Petitioner's claims in more detail, finding either that the record refuted them or that Petitioner failed to allege sufficient allegations. (Id. at CM/ECF pp. 64-67.) Finally, the state district court concluded that ...


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