FRAZIER v. WETZEL et al

Filing 31

MEMORANDUM OPINION & ORDER - dismissing 1 , 20 petitioner's Petition and Amended Petition for Habeas Corpus relief; denying petitioner's concomitant request for a certificate of appealability; adopting 21 the Magistrate Judge's Re port and Recommendation as modified in the Memorandum Opinion as the opinion of the court; and advising petitioner of the time within which to take an appeal. All as more fully set forth in the Memorandum Opinion. Signed by Judge David S. Cercone on 2/4/19. (mwm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ALBERT FRAZIER,
Petitioner,
v.

JOHN WETZEL, et al.,
Respondents.

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2:14cv872
Electronic Filing

MEMORANDUM and ORDER OF COURT
On June 23, 2014, the Petitioner, Albert Frazier, submitted a pro se petition for writ of
habeas corpus (ECF No. 1). On July 25, 2014, Respondents filed an answer to the petition (ECF
No. 7). On November 12, 2014, Petitioner filed a motion to stay the proceedings pending
exhaustion of his state court remedies (ECF No. 14) and on November 13, 2014, this motion was
granted (ECF No. 15) and the case was stayed and administratively closed.
On April 17, 2017, counsel entered his appearance on behalf of Petitioner and filed a
motion to lift the stay and for leave to file an Amended Petition (ECF Nos. 17, 18). This motion
was granted and counsel was granted 60 days in which to file an Amended Petition (ECF No.
19), which he filed on June 16, 2017 (ECF No. 20). Respondents elected not to file any further
response to the Amended Petition.
On August 15, 2017, the magistrate judge filed a Report and Recommendation (the
“R&R”), which recommended that the petition and Amended Petition be dismissed and that a
certificate of appealability be denied (ECF No. 21). After several motions for extension of time
were filed and granted, Petitioner filed objections to the R&R on September 18, 2017 (ECF No.

27). On September 19, 2017, the Respondents filed a response to the objections (ECF No. 28)
and on September 29, 2017, Petitioner filed a reply brief (ECF No. 30).
In his objections, Petitioner contends that: 1) he was denied his confrontation clause right
to effective cross-examination of the Commonwealth’s primary witness, Tracy Nolan, when the
trial court improperly refused to allow trial counsel to inquire into the continual postponements
of Nolan’s trial on drug and gun possession charges, which would have allowed the jury to make
a determination as to whether Nolan had been promised consideration in return for his testimony
against Petitioner; 2) Petitioner’s appellate counsel indicated that she did not receive notice of the
denial of his petition for allowance of appeal with the Pennsylvania Supreme Court until around
June 6, 2014, and by the application of equitable tolling his petition in this Court would be timely
filed; 3) trial counsel was ineffective for failing to call Petitioner’s mother and sister as alibi
witnesses and, when confronted with this claim at the PCRA hearing, trial counsel contended that
he faced an “ethical dilemma” because Petitioner admitted his involvement in the crime, but
counsel had inconsistently presented a defense of “mistaken identity”; and 4) the Commonwealth
had an agreement with Nolan to get him a favorable sentence on charges he faced but did not
reveal this agreement, which constituted a violation of Petitioner’s rights under Brady v.
Maryland, 373 U.S. 83 (1963).
The Respondents argue that: 1) the trial court held, in conformity with Pennsylvania law,
that Nolan could be asked only about charges pending against him and any consideration he was
receiving in return for his testimony, which means either that this issue is one of state law or that
the decision was not contrary to the Constitution; 2) the petition is clearly untimely and appellate
counsel’s statement that she informed Petitioner about the denial of his petition for allowance of
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appeal on June 6, 2014 does not invoke equitable tolling because it represents a mere
miscalculation of dates by counsel which is insufficient; 3) the PCRA court concluded that trial
counsel was not provided with specific information about alibi witnesses’ proposed testimony,
his mother’s proposed testimony was inadmissible and his sister’s proposed testimony would
have placed him at the scene of the crime, so counsel was not ineffective for failing to call them;
4) the Brady claim has never been raised before, even in the Amended Petition, so it is waived,
unexhausted, procedurally defaulted and meritless in any event because Nolan’s sentence of 4-10
years hardly demonstrates that he was receiving favorable treatment.
In a reply brief, Petitioner contends that: 1) his petition can be amended to add the Brady
claim and Respondents, who have addressed the claim on the merits, will not suffer prejudice;
and 2) the cross-examination of Nolan did not comply with Pennsylvania law because Petitioner
was not allowed to explore the possibility that Nolan was lying about not receiving favorable
treatment by pointing to the multiple postponements of Nolan’s trial date and this is not just an
issue of state law but one of his right to confront witnesses under federal law.
With respect to the timeliness of the petition, Petitioner’s objection is sustained.
Petitioner’s appellate counsel did not “miscalculate” any dates. Rather, she indicated that neither
she nor Petitioner had received notice that the Pennsylvania Supreme Court had denied his
petition for allowance of appeal until June 6, 2014 (ECF No. 1 Ex. F) and thus his petition, filed
17 days later on June 23, 2014, would not be untimely because he had 39 days in which to file it.
A failure of a court to notify Petitioner and his counsel of the denial of a petition constitutes an
“extraordinary circumstance [which] stood in his way and prevented timely filing.” Holland v.
Florida, 560 U.S. 631, 649 (2010). Nevertheless, the R&R alternatively reached the merits of the
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claims, so the error was harmless.
With respect to the confrontation clause claim, the Court concludes that Petitioner never
raised it as a federal constitutional claim in state court. Rather, he raised it as a matter of a state
evidentiary ruling and the state courts treated it as such, citing cases such as Commonwealth v.
Evans, 512 A.2d 626 (Pa. 1986). Indeed, the Respondents made this argument in the answer to
the petition (ECF No. 7 at 20), although they alternatively described it as an issue of state law as
presented in this case (id. at 24-27), which it is not. The R&R erred by treating it as a state law
issue (ECF No. 21 at 7),1 but the error was harmless. This claim is unexhausted and procedurally
defaulted, and thus barred from further review in this Court. Coleman v. Thompson, 501 U.S.
722, 750 (1991). Petitioner does not argue that he can meet the “cause and prejudice” standard
necessary to excuse the default and he would not meet this standard in any event, because his
post-conviction counsel did not raise trial counsel’s failure to raise the claim. Thus, Martinez v.
Ryan, 566 U.S. 1 (2012), does not apply.
With respect to the claim of trial counsel’s ineffectiveness for failure to call two alibi
witnesses, Petitioner’s objections are overruled. Establishing that a state court unreasonably
applied Strickland v. Washington, 466 U.S. 668 (1984), the standard for counsel ineffectiveness
claims, is difficult because federal habeas review of such claims is “doubly deferential.” Premo
v. Moore, 562 U.S. 115, 122 (2011). In this case, the PCRA court held a hearing and made

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The R&R quoted both the first issue presented by Petitioner in the original petition, which
described the claim as a denial of “his right to due process of law and a fair trial, as guaranteed
by the Sixth and Fourteenth Amendments to the United States Constitution” (ECF No. 1 at 6.1)
and thus raised a confrontation clause claim, and also the first issue as presented in the Amended
Petition (ECF No. 20 at 6), which described the claim in the way it was presented in the state
courts. (ECF No. 21 at 5-6.) However, the R&R addressed only the second version of this claim.
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several credibility determinations. Petitioner addresses only one of them by contending that
counsel’s proffered reason for not calling alibi witnesses – namely that Petitioner had indicated
his involvement in the incident and thus created an “ethical dilemma” with calling alibi witnesses
– was irreconcilable with trial counsel’s strategy of presenting a defense of “mistaken identity.”2
This is insufficient. Moreover, as noted in the R&R, the PCRA court also concluded that trial
counsel’s testimony that the alibi witnesses did not fully discuss with him the substance of their
proposed alibi evidence was credible and that Petitioner’s sister’s proposed testimony would
have placed him at the crime scene and, as a result, that the decision not to present alibi evidence
was made with the agreement of Petitioner. He has not even addressed these credibility
determinations and thus provides no basis for concluding that the state court finding was an
unreasonable application of Strickland.
Finally, Petitioner’s Brady claim is barred from review, not because he failed to raise it
earlier in this case, but more fundamentally because he never raised it in the state courts.
Petitioner contends that, at Nolan’s plea proceeding and sentencing on two cases involving drugs
and guns on May 27, 2008, he received a favorable sentence of 4-10 years, with the
Commonwealth agreeing not to pursue any of the maximum sentences available or to seek to
have the sentences run consecutively (ECF No. 27 at 12-13 & Exs. A-D). However, Petitioner
did not raise this claim in his PCRA petition, which was filed on August 5, 2009, or his
Amended Petition, which was filed on November 2, 2009 (ECF No. 7 Ex. 12, APP 114-26; Ex.
14, APP 129-42). Nor did he raise it in his second PCRA petition, which was filed on July 14,

Petitioner cites trial counsel’s closing statement (T.T. 962-78), but it was a contention that
Nolan’s identification of Petitioner was suspect given the amount of time he had to view the
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2014 (ECF No. 7 Ex. 30, APP 410-20). As explained above, such a claim is unexhausted and
procedurally barred from review. Petitioner does not explain why this procedural bar would not
apply. Petitioner’s fourth objection is therefore overruled.
For the reasons set forth above, the following order is appropriate:
AND NOW, this 4th day of February, 2019, after independent review of the
petition and the record developed in conjunction therewith and upon due consideration of the
Magistrate Judge’s Report and Recommendation (ECF No. 21), which as modified above is
adopted as the opinion of this Court,
IT IS ORDERED that the Petition and the Amended Petition for a writ of habeas
corpus filed by Petitioner (ECF Nos. 1, 20) are dismissed and, because reasonable jurists could
not conclude that a basis for appeal exists, a certificate of appealability is denied; and
IT IS FURTHER ORDERED that pursuant to Rule 4(a)(1) of the Federal Rules of
Appellate Procedure if Petitioner desires to appeal from this Order, he must do so within thirty
(30) days by filing a notice of appeal as provided in Rule 3, Fed. R. App. P.

s/David Stewart Cercone
David Stewart Cercone
Senior United States District Judge

shooter and the stress of the situation.
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