FRAZIER v. SCI DALLAS et al
ORDER THAT THE REPORT AND RECOMMENDATION IS APPROVED AND ADOPTED; THE PETITION FOR WRIT OF HABEAS CORPUS IS DENIED WITH PREJUDICE AND THERE IS NO PROBABLE CAUSE TO ISSUE A CERTIFICATE OF APPEALABILTY; THE CLERK OF COURT SHALL MARK THIS CASE CLOSED FOR STATISTICAL PURPOSES. SIGNED BY CHIEF JUDGE PETRESE B. TUCKER ON 1/19/17. 1/20/17 ENTERED AND COPIES E-MAILED. (jpd)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
THE ATTORNEY GENERAL
OF THE STATE OF PENNSYVLANIA,
AND NOW, this __19th__ day of January, 2017, upon consideration of Petitioner’s
Petition for Writ of Habeas Corpus (Doc. 1), Respondents’ Response to the Petition for Writ of
Habeas Corpus (Doc. 9), Petitioner’s Traverse to State’s Response Opposing Frazier’s Petition
for Habeas Corpus Under 28 U.S.C. 2254 (Doc. 12), the Report and Recommendation of United
States Magistrate Judge Richard A. Lloret (Doc. 13), and Petitioner’s Objections to Report and
Recommendation of Magistrate-Judge (Doc. 14), IT IS HEREBY ORDERED AND
DECREED as follows:
1. The Report and Recommendation is APPROVED and ADOPTED; 1
2. The Petition for Writ of Habeas Corpus is DENIED WITH PREJUDICE; and
3. There is no probable cause to issue a certificate of appealability.
IT IS FURTHER ORDERED that the Clerk of Court shall mark this case as CLOSED
for statistical purposes.
BY THE COURT:
/s/ Petrese B. Tucker
Hon. Petrese B. Tucker, C.J.
In addition to the reasoning set forth in Magistrate Judge Lloret’s Report and
Recommendation, and as it pertains to Petitioner’s assertion of actual innocence, the Third
Circuit case of Sistrunk v. Rozum, supports the conclusion that Petitioner has not presented a
viable claim of actual innocence. 674 F.3d 181 (3d Cir. 2012).
In Sistrunk, the petitioner was convicted of murder and sentenced to life imprisonment.
Id. at 184. Seven years after his conviction, and after an unsuccessful Post Conviction Relief Act
(“PCRA”) petition, the petitioner filed a second PCRA claim alleging that he had uncovered new
evidence that, in the intervening years, a previously unknown person had confessed to having
committed the murder for which petitioner had been convicted. Id. at 185. The second PCRA
claim, however, was dismissed. Id. Four years after filing his second PCRA claim, and eleven
years after his initial conviction, the petitioner filed a third PCRA claim alleging that he had
uncovered additional new evidence that a key prosecution witness had perjured himself at the
petitioner’s murder trial by testifying, falsely, that petitioner was the killer. Id. Ultimately, the
petitioner filed a federal habeas petition in the District Court for the Eastern District of
Pennsylvania in which he argued that he was entitled to an evidentiary hearing in light of the
new evidence of his actual innocence and that any temporal bars to his claims should be excused
or tolled. Id.
The Third Circuit held, however, that the petitioner failed to establish his entitlement to
equitable tolling for actual innocence “because he [could not] show that he [was], in fact,
innocent.” Id. at 191. In order to succeed on a claim of actual innocence, the Third Circuit
explained, a petitioner must demonstrate that he has “(1) new evidence, (2) that is reliable, and
(3) so probative of innocence that no reasonable juror would have convicted the petitioner.” Id.
(citing Schlup v. Delo, 513 U.S. 298, 324, 327 (1995)). In Sistrunk, the petitioner failed to
establish each of the three conditions for his actual innocence claim to succeed. Id.
Regarding the first condition, the Third Circuit found that the petitioner’s “new” evidence
was not actually “new” because the petitioner knew of the evidence or could have known about
the evidence at the time of trial if he had exercised reasonable diligence. Id. at 188. Regarding
the second condition, the Third Circuit found that the evidence presented was not reliable
because, among other things, the recantation of the prosecution’s witness was not credible in
view of the great suspicion that courts have for such recantation testimony. Id. at 191.
Recantation of earlier trial testimony is “very often unreliable . . . and most often serves merely
to impeach cumulative evidence rather than to undermine confidence in the accuracy of the
conviction.” Id. (citing Dobbert v. Wainwright, 484 U.S. 400, 414 (1984)). Regarding the third
condition, the Third Circuit found that the evidence was not “so probative of his actual
innocence” given the “supremely high bar” set by the Schlup standard.
In the present case, the evidence presented by Petitioner is substantially similar to the
evidence presented by the petitioner in Sistrunk that was found insufficient to establish a claim of
actual innocence. The Court agrees with the analysis set forth in the Report and
Recommendation regarding the insufficiency of Petitioner’s evidence of actual innocence. See
generally R. & R. at 9–14 (analyzing Petitioner’s actual innocence claim and explaining, in
detail, why Petitioner’s allegedly “new” evidence is insufficient). For the reasons articulated in
the Report and Recommendation and in view of the holding of Sistrunk, Petitioner’s actual
innocence claim must be denied.
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