Frazier v. United States of America

Filing 6

ORDER Denying Motion to Vacate, Set Aside or Correct Sentence (2255); Order to Modify the Docket; Order Denying Certificate of Appealability; Order Certifying Appeal Not Taken in Good Faith; and Order Denying Leave to Proceed In Forma Pauperis on Appeal. Signed by Judge S. Thomas Anderson on 12/20/13. (Anderson, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

MAURICE FRAZIER,
Movant,
vs.
UNITED STATES OF AMERICA,
Respondent.

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Cv. No. 12-2886-STA-dkv
Cr. No. 06-20430-STA

ORDER TO MODIFY THE DOCKET
ORDER DENYING MOTION PURSUANT TO 28 U.S.C. § 2255
ORDER DENYING CERTIFICATE OF APPEALABILITY
ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH
AND
ORDER DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
Before the Court is the Motion Pursuant to 28 U.S.C. § 2255
to Vacate, Set Aside or Correct Sentence by a Person in Federal
Custody (the “§ 2255 Motion”) filed by Movant Maurice Frazier,
Bureau of Prisons register number 21406-076, an inmate at the
United States Penitentiary — Victorville in Adelanto, California.
(ECF No. 1.) For the reasons stated below, the Court DENIES
Movant’s § 2255 motion.
I.

BACKGROUND
A.

Criminal Case Number 06-20430

On November 28, 2006, a federal grand jury returned a
single-count indictment charging Frazier, a convicted felon, with
1

possession of a Lorcin, Model L25, .25 caliber pistol on or about
March 14, 2006, in violation of 18 U.S.C. § 922(g).1 On December
18, 2008, the grand jury returned an eleven-count superseding
indictment against Frazier.2 The first count charged that, on or
about February 11, 2006, Frazier robbed A&R Bar-B-Que, in
violation of 18 U.S.C. § 1951. The third count charged that, on
or about February 15, 2006, Frazier robbed a Family Dollar, in
violation of 18 U.S.C. § 1951. The fifth count charged that, on
or about February 19, 2006, Frazier robbed a McDonald’s, in
violation of 18 U.S.C. § 1951. The seventh count charged that, on
or about March 3, 2006, Frazier robbed a Sonic, in violation of
18 U.S.C. § 1951. The ninth count charged that, on or about March
13, 2006, Frazier robbed the Memphis Plaza Hotel, in violation of
18 U.S.C. § 1951. Counts 2, 4, 6, 8, and 10 charged Frazier with
using and carrying a firearm during and in relation to the
robberies charged in Counts 1, 3, 5, 7, and 9, respectively, in
violation of 18 U.S.C. § 924(c). The eleventh count realleged
Count 1 of the original Indictment.
The factual basis for these charges is summarized in the
presentence report (“PSR”):
Counts One and Two
5.
1

At approximately 8:00 p.m. on February 11,

Indictment, United States v. Frazier, No. 06-20430-STA (W.D. Tenn.),

ECF No. 1.
2

1st Superseding Indictment, id., ECF No. 49.

2

2006, a male, later identified as Maurice Frazier,
entered A&R Barbecue at 3530 Ramill in Memphis,
Tennessee, ordered dinner, and left. A few minutes
later, Frazier re-entered the store, armed with a black
semi-automatic handgun. Frazier pointed the handgun at
the employees and demanded money. After collecting
money from the registers, Frazier asked where the safe
was. A store employee took Frazier to the safe in the
back office. Frazier then left the store with the hand
safe. He took approximately $3,000 in cash.
6.
Alice Warner, one of the store employees,
stated that Frazier entered the store, grabbed her by
the arm, and told her that he wanted her to open the
safe. She told Frazier that she had no way to get the
money from the safe. According to Warner, another
employee, Tiesh Withers, put money from the registers
into a sack and handed it [to] Warner to give to
Frazier. Another employee, Roy Sullivan, came out of
the kitchen and asked Frazier not to shoot. Roy
retrieved the safe from the back of the restaurant and
gave it to Frazier. Warner indicated that Frazier then
picked up the safe, told them to get on the floor, and
left.
7.
Withers indicated that she was leaning on the
register when she saw Frazier walking Warner back to
where she was. Withers noticed that Frazier had a gun
and realized that they were being robbed. According to
Withers, Frazier kept asking for the safe, but Withers
told him that they did not have one. Withers indicated
that Frazier’s voice changed and he started getting
meaner. He was constantly asking about the safe.
Withers stated that she went to the register and put
the money into a bag for Frazier. She handed the bag to
Warner while Frazier was still asking about the safe.
According to Withers, Sullivan walked up from the back
of the store and saw that they were being robbed.
Sullivant then went to the back of the store and got
the safe. Frazier picked the safe up off the floor,
told them to get on the floor, and left. Withers
identified Frazier in a photo line-up.
8.
While being interviewed about an unrelated
incident, Frazier gave a statement of admission about
committing this robbery. He indicated that he was armed
with an automatic .380 caliber pistol. According to
3

Frazier, he took about $1,500 to $1,600 during the
robbery. Frazier stated that he participated in the
robbery “to get money for a place to stay and buy food
and stuff.” He also indicated that he was sorry that
“these things happened to the victims and that this
whole thing turned out the way it did.”
Counts Three and Four
9.
At approximately 8:16 p.m. on February 15,
2006, Family Dollar Store, located at 3514 Raleigh
Millington Road in Memphis, was robbed. Frazier
admitted committing this robbery while being
interviewed about a similar incident. According to
store employee, Emmanuel Fowler, he was sweeping
outside the store when Frazier asked if they still had
Valentine’s Day cards available. Fowler directed him
inside the store. According to Fowler, seconds later,
he saw Frazier pointing a gun at Martin Hurley, the
manager. Fowler then ran for help. Hurley advised that
Frazier demanded that he get onto the floor after the
money was removed out of the register. Frazier then
forced Hurley to take him to the safe. When Hurley
advised that he had to get the code out of his cell
phone, Frazier moved him into the office. While still
holding Hurley at gunpoint, Frazier had Hurley place
the deposit bag and the till tray into a Family Dollar
bag. Frazier then took Hurley’s phone and left on foot
with an unknown amount of money.
10. During an interview with investigators,
Frazier advised that he participated in the robbery
because he “needed cash.” He estimated that he received
“maybe a hundred and something dollars.”
Counts Five and Six
11. McDonald’s, located at 2200 Covington Pike in
Memphis, was robbed by Frazier at approximately 10:30
p.m. on February 19, 2006. According to Tabitha
Stegall, the manager on duty, Frazier placed a food
order at the restaurant’s counter. After receiving his
food order from Devin Hines, Frazier walked back
outside. Stegall stated that they thought Frazier was
going outside, so they all went to the back. Stegall
advised that Frazier walked back to where they were,
pointed a gun at them, and told them to give him the
4

money. Stegall told Frazier that she was pregnant and
not to shoot her. According to Stegall, Frazier
responded that he would not hurt anyone and that they
should do as they were told. Frazier then ordered
Stegall and another employee to lie on the ground while
he made Hines get the money from the drive-through
register. When he asked for the surveillance tape,
Stegall told him that she did not have the key. Frazier
tried to break the plexiglass case that held the VCR,
but it would not break. Stegall indicated that Frazier
told them all to go into the back of the restaurant. He
shot at the surveillance monitor twice and ran out of
the store.
12. During an interview with investigators in
connection with a similar incident, Frazier admitted
committing this robbery. Frazier advised that he
participated in the robbery because he “needed cash.”
He estimated that he received approximately $800 from
the robbery.
13. Two spent .380 caliber casings were recovered
from the scene.
Counts Seven and Eight
14. Sonic Drive-In, located at 3332 Overton
Crossing in Memphis, was robbed by Frazier on March 3,
2006. Frazier admitted committing this robbery while
being interviewed about a similar incident. According
to Kendra Grayson, the manager at Sonic, Frazier
entered the store through the rear door that was opened
while a truck was being unloaded. According to Grayson,
Frazier came up to her, put the gun in her side, and
told her to give him the money. Grayson froze, and
Frazier walked past her and grabbed one of the carhops,
who had money in her apron. When Frazier told the
carhop to give him her money, she pushed him. However,
when the carhop saw Frazier’s gun, she ran. Grayson
then told the other employees to run. According to
Grayson, Frazier shot out two surveillance monitors.
Grayson indicated that another employee came out of the
walk-in when he heard the shots. Frazier grabbed him
and told him to give him the money because “the
bitches” would not give the money to him. The employee
gave Frazier the money that was in a drawer but not the
money that was in the safe. Frazier then ran out the
5

back door. Grayson stated that Frazier took $451 in
cash.
15. Another employee, Dioulasso Bobo, indicated
that Frazier entered the store through the back door
and put a gun to an employee’s stomach. According to
Bobo, the employee pushed Frazier back because they
thought it was a joke. Bobo walked out the front door
with an order. When she realized that Frazier was
robbing them, she told a customer to call the police.
16. During an interview with investigators,
Frazier advised that he participated in the robbery
because he “needed cash.”
Counts Nine and Ten
17. At approximately 12:45 a.m. on March 13,
2006, Frazier robbed Memphis Plaza Hotel, located at
6101 Shelby Oaks in Memphis. Frazier was developed as a
suspect from a previous incident and gave a statement
admitting his participation in this robbery. Zachary
Morrow advised that he was at the desk in the back
office when Frazier jumped the counter. Morrow slammed
the door in Frazier’s face; however, Frazier kept
pushing the door open, so Morrow let the door go.
Frazier then entered the back office with a gun and
demanded money. Morrow took Frazier to the front, where
Morrow opened the drawer that contained the money. When
Frazier demanded a bag, Morrow went to the back and
retrieved a garbage bag. Frazier told Morrow to put the
money into the bag, and Morrow complied. According to
Morrow, Frazier then told him to go into a closet, get
on his knees, and count to ten. Frazier closed the
closet door, jumped over the counter, and left.
According to Morrow, Frazier took $500 in cash. Morrow
identified Frazier in a photo line-up.
18. During an interview with investigators,
Frazier admitted that he possessed a .22 automatic
handgun during the robbery. He indicated that, although
the employee told him that there was about $500, he
received between $200 and $300. When asked why he
participated in the robbery, Frazier responded, “I
needed money and every time I did a robbery I went and
got a motel room because I needed a place to stay.”

6

Count Eleven
19. At approximately 5:50 p.m. on March 14, 2006,
Frazier robbed Just Phones, located at 4570 Raleigh
Lagrange in Memphis. According to George Ingram, who
was the manager on duty, he was at the front counter
when Frazier entered the store pointing a gun and
saying, “Give me that money.” As Ingram backed up,
Frazier jumped over the counter and again asked for the
money. When Frazier took Ingram to the back office, he
saw Cartilious Tanksley, another employee. Frazier then
made Ingram and Tanksley get on the floor. Ingram told
Tanksley to give the money to Frazier, and he did. At
that point, Frazier pointed the gun at Ingram and asked
if that was all the money. Ingram responded that it
was. Frazier walked Ingram to the front register and
made him open it. Ingram took the money out of the
register and put it in a plastic bag. Frazier walked
Ingram to the back of the store, where he took Ingram’s
diamond horseshoe ring, valued at $800, and a gold
bracelet, valued at $99. Frazier also made Ingram give
him the tape from the surveillance camera. After
Frazier made Ingram return to the back, he let;
however, Ingram went after him with his gun. According
to Ingram, he saw Frazier running to the right side of
the building toward the woods and yelled at him to stop
and drop the money. Ingram advised that Frazier
stopped, turned around, and pointed his gun at Ingram,
so Ingram started shooting at Frazier. He stated that
he fired three shots with a Ruger 9mm handgun. Frazier
changed direction and ran toward the street. Ingram
indicated that he yelled at Frazier, “Stop. Don’t make
me kill you.” Frazier dropped the bag and a hat and wig
that he was wearing and ran. Ingram picked up the
items, returned to the store, and called the police.
When the officers arrived, Ingram provided a
description of Frazier. According to Ingram, the
officers located Frazier within 30 or 45 minutes, and
Ingram identified him as the robber. Ingram indicated
that the bag that he recovered from Frazier contained
$879.
20. Tanksley advised that he was in the back of
the store when he saw Frazier jump over the counter on
the surveillance television. Frazier then brought
Ingram to the back of the store at gunpoint. According
7

to Tanksley, Frazier pointed the gun at them and kept
yelling, “Get on the ground” and asking where the money
was. Ingram went to the cash drawer and gave the money
to Frazier. Tanksley indicated that Frazier noticed the
surveillance camera and tried to shoot it, but his gun
was jammed. Frazier told Tanksley to take off his shoes
and go to the back of the store. Tanksley complied and
got behind a couch in the back room. He looked up and
saw that Ingram was there also. Tanksley stated that
Ingram told him to stay in the room and left. While
Tanksley was trying to call 911, he heard two or three
shots fired.
21. Officers located Frazier hiding behind a
shed. He led investigators to the location where he hid
his firearm.
22. During an interview with investigators,
Frazier admitted that he used a handgun during the
robbery. He stated that he needed money to rent a place
to stay since he did not have anywhere to go.
23. Frazier’s firearm is described as a Lorcin
pistol, Model L25, .25 caliber, serial number 333820.
According to a special agent with the Bureau of
Alcohol, Tobacco, Firearms, and Explosives, the firearm
was not manufactured in Tennessee, and, therefore, at
some point traveled in interstate and/or foreign
commerce.
24. The investigation revealed that Frazier was a
convicted felon.
Offense Conduct Not Included as Relevant Conduct
25. At approximately 5:50 p.m. on February 7,
2006, Just Phones, located at 4570 Raleigh Lagrange in
Memphis, was robbed by Frazier. While being interviewed
about similar incidents, Frazier admitted his
participation in the robbery. According to George
Ingram, the manager, Frazier, who had a hood over his
head and a bandanna across his face, entered the store,
pointed a handgun at Ingram’s chest, and stated, “You
already know what time it is.” When Ingram moved back
to the second room, Frazier jumped the counter and
asked, “Where’s the money?” Frazier grabbed the money
off Ingram’s desk when Ingram showed it to him.
8

According to Ingram, Frazier put the money into a bag
and told Ingram to get down and take off his shoes.
Frazier then told Ingram to get up and took his gold
chain. Ingram indicated that Frazier told him to go to
another room in the back and close the door. Ingram
identified Frazier in a photo line-up. According to
Ingram, Frazier took $3,000 in cash and his gold chain.
26. Family Dollar Store, located at 2912 Coleman
in Memphis was robbed by two males at approximately
6:30 p.m. on March 5, 2006. Approximately $762 in cash
was taken. During the robbery, one of the males forced
Cashina Fifer to open her register at gunpoint. The
other male went to the back of the store and made
Sheila Prescott open the safe. After getting the money,
the males ran out of the store. Terry Austin was
arrested trying to leave the area. He was identified by
the victims. During an interview with investigators,
Austin indicated that he did not know the name of the
other suspect. During an interview with investigators
about a similar incident, Frazier admitted his
involvement in this robbery.
(PSR ¶¶ 5-26.)
A jury trial commenced on May 18, 2009, and, on May 26,
2009, the jury returned a guilty verdict on Counts 3, 4, 7, 8, 9,
10, and 11 of the Superseding Indictment.3 The jury continued to
deliberate and, on May 27, 2009, the jury returned a guilty
verdict on Counts 1, 2, 5, and 6 of the Superseding Indictment.4
The Court conducted a sentencing hearing on September 16, 2009,
at which Frazier was sentenced to a term of imprisonment of one
thousand five hundred twenty-four (1524) months, or one hundred

3

Min. Entry, United States v. Frazier, No. 06-20430-STA (W.D. Tenn.),
ECF No. 73; Min. Entry, id., ECF No. 74; Min. Entry, id., ECF No. 77; Min. Entry,
id., ECF No. 80; Min. Entry, id., ECF No. 81; Min. Entry, id., ECF No. 82.
4

Min. Entry, id., ECF No. 83; Jury Verdict, id., ECF No. 84.

9

twenty-seven (127) years, to be followed by a three-year period
of supervised release.5 Judgment was entered on September 28,
2009.6 The Sixth Circuit Court of Appeals affirmed. United States
v. Frazier, 414 F. App’x 782 (6th Cir. 2011), cert. denied, ___
U.S. ___, 132 S. Ct. 193, 181 L. Ed. 2d 100 (2011).

5

Min. Entry, id., ECF No. 99.

Frazier was sentenced to concurrent terms of 240 months on Counts 1,
3, 5, 7, and 9, to be served consecutively to 84 months on Count 2 and
consecutive to consecutive terms of 300 months on Counts 4, 6, 8, and 10. Frazier
also received a concurrent sentence of 180 months on Count 11. Id.
The offense level for Count 1 was calculated as follows: Pursuant to
§ 2B3.1(a) of the United States Sentencing Guidelines (“U.S.S.G.”), the base
offense level for robbery is 20. Frazier received a two-point enhancement because
a person was physically restrained to facilitate the commission of the offense
or to facilitate escape, U.S.S.G. § 2B3.1(b)(4)(B), resulting in an adjusted
offense level of 22. The offense level for Counts Three, Five, and Nine was
calculated in the same manner. The adjusted offense level for Count 7 was 20,
which is the base offense level for robbery.
The adjusted offense level for Count 11 was calculated as follows:
Pursuant to U.S.S.G. § 2K2.1(a)(2), the base offense level for unlawful
possession of a firearm is 24 if the defendant committed any part of the instant
offense subsequent to sustaining at least two felony convictions of either a
crime of violence or a controlled substance offense. Frazier received a fourpoint enhancement because he possessed the firearm in connection with another
felony offense, U.S.S.G. § 2K2.1(b)(6), resulting in an adjusted offense level
of 28.
The combined offense level was calculated by assigning one unit to
Count 11, the count having the highest adjusted offense level, and one-half unit
to each of Counts 1, 3, 5, 7, and 9, for a total of 3.5 units. The adjusted
offense level of 28 was increased by four levels, U.S.S.G. § 3D1.4, for a total
offense level of 32 on those counts.
However, Frazier also qualified as an armed career criminal because
of his prior convictions for Robbery (PSR ¶ 81), Robbery with a deadly weapon (¶
87), two convictions for aggravated robbery (¶¶ 88-89), and aggravated assault
(¶ 91). Pursuant to U.S.S.G. § 4B1.4(b)(3)(A), the total offense level for Counts
1, 3, 5, 7, 9, and 11 was 34. Given his criminal history category of VI, the
guideline sentencing range for these counts was 262-327 months.
In addition, Frazier was subject to mandatory minimum terms of
imprisonment of 7 years on Count 2 and 25 years on Counts 4, 6, 8, and 10, with
each sentence to run consecutive to each other and to the sentence imposed on
Counts 1, 3, 5, 7, 9, and 11.
6

J., United States v. Frazier, No. 06-20430-STA (W.D. Tenn.), ECF No.

100.

10

B.

Case Number 12-2886

On October 9, 2012, Frazier filed his pro se § 2255 Motion.
(ECF No. 1.) In that Motion, Frazier raises the following issues:
1.

Whether his attorney rendered ineffective
assistance, in violation of the Sixth Amendment
(id. at 4-5);

2.

Whether the venue was improper because possession
of a firearm is no longer a federal crime (id. at
5-7);

3.

Whether the evidence was insufficient to sustain
his conviction for the McDonald’s robbery because
no witness identified him (id. at 7-8); and

4.

Whether the evidence was insufficient to sustain
his conviction for the McDonald’s robbery because
there was no physical evidence linking him to the
crime (id. at 8-9).

The § 2255 Motion was unsigned and contained a note that Movant
intended to submit a legal memorandum that he was unable to
complete due to his placement in a Special Housing Unit. (Id. at
13.)
In an order issued on January 16, 2013, the Court directed
Frazier to sign the § 2255 Motion and to file his legal
memorandum within thirty (30) days. (ECF No. 2.) On February 11,
2013, the Clerk docketed the signature page for Movant’s § 2255

11

Motion. (ECF No. 4-2.)7
On March 4, 2013, Movant filed his Supplimental [sic] Brief
in Support of Motion Under § 2255. (ECF No. 5.)8 Rather than
providing legal argument in support of the issues in his § 2255
Motion, this filing presents the following, additional issue:
5.

Whether the Court erred in the admission of
testimony, not of an expert, but stated as such,
which confused the jury and its verdict (id. at 25).

This filing is both late, having been filed beyond the thirty
days specified by the January 16, 2013, order, and likely time
barred. In the interest of judicial economy, however, the Court
has chosen to grant leave to amend and to address this new issue
on the merits without requiring the Government to respond.
II.

THE LEGAL STANDARDS
Pursuant to 28 U.S.C. § 2255(a),
[a] prisoner in custody under sentence of a court
established by Act of Congress claiming the right to be
released upon the ground that the sentence was imposed
in violation of the Constitution or laws of the United
States, or that the court was without jurisdiction to
impose such sentence, or that the sentence was in
excess of the maximum authorized by law, or is

7
In that filing, Frazier stated that he “will not [sic] proceed to
complete the Amendment approved by this Court, with all due speed possible.” (ECF
No. 4.) The Court did not grant leave to amend but, instead, granted leave to
file a legal memorandum. Movant also did not seek an extension of time to file
his legal memorandum.
8
The Clerk has docketed three copies of Movant’s supplement. The Clerk
is directed to remove pages 6-15 of the .pdf document, which are redundant.

12

otherwise subject to collateral attack, may move the
court which imposed the sentence to vacate, set aside
or correct the sentence.
“A prisoner seeking relief under 28 U.S.C. § 2255 must allege
either (1) an error of constitutional magnitude; (2) a sentence
imposed outside the statutory limits; or (3) an error of fact or
law that was so fundamental as to render the entire proceeding
invalid.” Short v. United States, 471 F.3d 686, 691 (6th Cir.
2006) (internal quotation marks omitted).
A § 2255 motion is not a substitute for a direct appeal. See
Sunal v. Large, 332 U.S. 174, 178, 67 S. Ct. 1588, 1590,

91 L.

Ed. 1982 (1947). “[N]onconstitutional claims that could have been
raised on appeal, but were not, may not be asserted in collateral
proceedings.” Stone v. Powell, 428 U.S. 465, 477 n.10, 96 S. Ct.
3037, 3044 n.10, 49 L. Ed. 2d 1067 (1976). “Defendants must
assert their claims in the ordinary course of trial and direct
appeal.” Grant v. United States, 72 F.3d 503, 506 (6th Cir.
1996). This rule is not absolute:
If claims have been forfeited by virtue of ineffective
assistance of counsel, then relief under § 2255 would
be available subject to the standard of Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984). In those rare instances where the defaulted
claim is of an error not ordinarily cognizable or
constitutional error, but the error is committed in a
context that is so positively outrageous as to indicate
a “complete miscarriage of justice,” it seems to us
that what is really being asserted is a violation of
due process.
Id.

13

Even constitutional claims that could have been raised on
direct appeal, but were not, will be barred by procedural default
unless the defendant demonstrates cause and prejudice sufficient
to excuse his failure to raise those issues previously. El-Nobani
v. United States, 287 F.3d 417, 420 (6th Cir. 2002) (withdrawal
of guilty plea); Peveler v. United States, 269 F.3d 693, 698-99
(6th Cir. 2001) (new Supreme Court decision issued during
pendency of direct appeal); Phillip v. United States, 229 F.3d
550, 552 (6th Cir. 2000) (trial errors). Alternatively, a
defendant may obtain review of a procedurally defaulted claim by
demonstrating his “actual innocence.” Bousley v. United States,
523 U.S. 614, 622, 118 S. Ct. 1604, 1611, 140 L. Ed. 2d 828
(1998).
“[A] § 2255 motion may not be employed to relitigate an
issue that was raised and considered on direct appeal absent
highly exceptional circumstances, such as an intervening change
in the law.” Jones v. United States, 178 F.3d 790, 796 (6th Cir.
1999); see also DuPont v. United States, 76 F.3d 108, 110 (6th
Cir. 1996) (same).
After a § 2255 motion is filed, it is reviewed by the Court
and, “[i]f it plainly appears from the motion, any attached
exhibits, and the record of prior proceedings that the moving
party is not entitled to relief, the judge must dismiss the
motion.” Rule 4(b), Rules Governing Section 2255 Proceedings for

14

the United States District Courts (“§ 2255 Rules”). “If the
motion is not dismissed, the judge must order the United States
attorney to file an answer, motion, or other response within a
fixed time, or to take other action the judge may order.” Id. The
movant is entitled to reply to the Government’s response. Rule
5(d), § 2255 Rules. The Court may also direct the parties to
provide additional information relating to the motion. Rule 7, §
2255 Rules.
“In reviewing a § 2255 motion in which a factual dispute
arises, ‘the habeas court must hold an evidentiary hearing to
determine the truth of the petitioner’s claims.’” Valentine v.
United States, 488 F.3d 325, 333 (6th Cir. 2007) (quoting Turner
v. United States, 183 F.3d 474, 477 (6th Cir. 1999)). “‘[N]o
hearing is required if the petitioner’s allegations cannot be
accepted as true because they are contradicted by the record,
inherently incredible, or conclusions rather than statements of
fact.’” Id. (quoting Arredondo v. United States, 178 F.3d 778,
782 (6th Cir. 1999)). Where the judge considering the § 2255
motion also presided over the criminal case, the judge may rely
on his or her recollection of the prior case. Blanton v. United
States, 94 F.3d 227, 235 (6th Cir. 1996); see also Blackledge v.
Allison, 431 U.S. 63, 74 n.4, 97 S. Ct. 1621, 1629, 52 L. Ed. 2d
136 (1977) (“[A] motion under § 2255 is ordinarily presented to
the judge who presided at the original conviction and sentencing

15

of the prisoner. In some cases, the judge’s recollection of the
events at issue may enable him summarily to dismiss a § 2255
motion.”). Movant has the burden of proving that he is entitled
to relief by a preponderance of the evidence. Pough v. United
States, 442 F.3d 959, 964 (6th Cir. 2006).
III.

ANALYSIS OF MOVANT’S CLAIMS
A.

Ineffective Assistance of Counsel (Claim 1)

In his first issue, Movant argues that his trial counsel
rendered ineffective assistance, in violation of the Sixth
Amendment, by failing to argue that there was no proof that the
interstate commerce element of the various offenses had been
satisfied. (ECF No. 1 at 4.) Specifically, Movant asserts that
there was “no substantial impact on interstate commerce proven.
Law supports no commerce found on less than $1200! Most crimes
were under this limit. Counsel did not argue venue issue.” (Id.)
It appears that Movant is arguing that there was no federal
jurisdiction over the robbery counts (Counts 1, 3, 5, 7, and 9)
because the amount of funds obtained in each robbery was less
than $1200.
A claim that ineffective assistance of counsel has deprived
a movant of his Sixth Amendment right to counsel is controlled by
the standards stated in Strickland v. Washington, 466 U.S. 668,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To demonstrate
deficient performance by counsel, a petitioner must demonstrate

16

that “counsel’s representation fell below an objective standard
of reasonableness.” Id. at 688, 104 S. Ct. at 2064. “A court
considering a claim of ineffective assistance must apply a
‘strong presumption’ that counsel’s representation was within the
‘wide range’ of reasonable professional assistance. [Strickland,
466 U.S.] at 689, 104 S. Ct. 2052. The challenger’s burden is to
show ‘that counsel made errors so serious that counsel was not
functioning as the “counsel” guaranteed the defendant by the
Sixth Amendment.’ Id., at 687, 104 S. Ct. 2052.” Harrington v.
Richter, ___ U.S. ___, ___, 131 S. Ct. 770, 787, 178 L. Ed. 2d
624 (2011).
To demonstrate prejudice, a prisoner must establish “a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.9 “A reasonable
probability is a probability sufficient to undermine confidence
in the outcome.” Id. at 694, 104 S. Ct. at 2068. “It is not
enough ‘to show that the errors had some conceivable effect on
the outcome of the proceeding.’ [Srickland, 466 U.S.] at 693, 104
S. Ct. 2052. Counsel’s errors must be “so serious as to deprive
the defendant of a fair trial, a trial whose result is reliable.’

9
“[A] court need not determine whether counsel’s performance was
deficient before examining the prejudice suffered by the defendant.” Id. at 697,
104 S. Ct. at 2069. If a reviewing court finds a lack of prejudice, it need not
determine whether, in fact, counsel’s performance was deficient. Id. at 697, 104
S. Ct. at 2069.

17

Id., at 687, 104 S. Ct. 2052.” Richter, ___ U.S. at ___, 131 S.
Ct. at 787-88; see also id. at ___, 131 S. Ct. at 791-72 (“In
assessing prejudice under Strickland, the question is not whether
a court can be certain counsel’s performance had no effect on the
outcome or whether it is possible a reasonable doubt might have
been established if counsel acted differently. . . . The
likelihood of a different result must be substantial, not just
conceivable.”) (citations omitted); Wong v. Belmontes, 558 U.S.
15, 27, 130 S. Ct. 383, 390-91, 175 L. Ed. 2d 328 (2009) (per
curiam) (“But Strickland does not require the State to ‘rule out’
[a more favorable outcome] to prevail. Rather, Strickland places
the burden on the defendant,

not the State, to show a

‘reasonable probability’ that the result would have been
different.”).
“Surmounting Strickland’s high bar is never an easy task.”
Padilla v. Ky., 559 U.S. 356, 371, 130 S. Ct. 1473, 1385 (2010).
An ineffective-assistance claim can function as a way
to escape rules of waiver and forfeiture and raise
issues not presented at trial, and so the Strickland
standard must be applied with scrupulous care, lest
“intrusive post-trial inquiry” threaten the integrity
of the very adversary process the right to counsel is
meant to serve. Strickland, 466 U.S., at 689-690, 104
S. Ct. 2052. Even under de novo review, the standard
for judging counsel’s representation is a most
deferential one. Unlike a later reviewing court, the
attorney observed the relevant proceedings, knew of
materials outside the record, and interacted with the
client, with opposing counsel, and with the judge. It
is “all too tempting” to “second-guess counsel’s
assistance after conviction or adverse sentence.” Id.,
at 689, 104 S. Ct. 2052; see also Bell v. Cone, 535
18

U.S. 685, 702, 122 S. Ct. 1843, 152 L. Ed. 2d 914
(2002); Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.
Ct. 838, 122 L. Ed. 2d 180 (1993). The question is
whether an attorney’s representation amounted to
incompetence under “prevailing professional norms,” not
whether it deviated from best practices or most common
custom. Strickland, 466 U.S., at 690, 104 S. Ct. 2052.
Richter, ___ U.S. at ___, 131 S. Ct. at 788.
The robbery counts arose under the Hobbs Act, 18 U.S.C. §
1951(a), which provides as follows:
Whoever in any way or degree obstructs or delays
or affects commerce or the movement of any article or
commodity in commerce, by robbery or extortion or
attempts or conspires to do so, or commits or threatens
physical violence to any person or property in
furtherance of a plan or purpose to do anything in
violation of this section shall be fined under this
title or imprisoned not more than twenty years, or
both.
On direct appeal, Movant argued that, to support federal
jurisdiction over both the Hobbs Act and the firearms counts, the
Government was required to show that the offenses had a
substantial effect on interstate commerce. The Court of Appeals
rejected that argument on the merits, stating as follows:
Frazier robbed five Memphis, Tennessee businesses
in February and March 2006. He does not dispute that he
committed the robberies, challenging only the
interstate commerce element of the convictions. During
Frazier’s jury trial, the government presented evidence
of the interstate nexus of each offense. First, Frazier
took between $2,400 and $2,700 from the A & R
Bar–B–Que, which sold pork originating in Mississippi,
for which the restaurant sent payment to an address in
Georgia. Second, Frazier robbed the cash register of a
Family Dollar Store, which sold goods originating from
out of state. Third, Frazier robbed a McDonald’s
restaurant, which ordered supplies from a national
purchasing company. Fourth, Frazier robbed a Sonic
19

restaurant, which sold products ordered from out-ofstate vendors and delivered from a Mississippi
distribution center. And fifth, Frazier took $300 from
the Memphis Plaza Hotel, which catered to out-of-state
guests and used a credit card machine. Frazier was
apprehended during a sixth robbery, during which his
gun, manufactured in California, was recovered.
. . . .
We review de novo Frazier’s claim that the Hobbs
Act and 18 U.S.C. § 924(c) convictions require proof
that the offenses had a substantial effect on
interstate commerce. See United States v. Davis, 473
F.3d 680, 681 (6th Cir. 2007). The Hobbs Act provides
that “[w]hoever in any way or degree obstructs, delays,
or affects commerce or the movement of any article or
commodity in commerce, by robbery ... shall be fined
under this title or imprisoned....” 18 U.S.C. §
1951(a). In order to prevail under the Hobbs Act, “the
Government must prove two elements: (1) interference
with interstate commerce (2) in the course of a
substantive criminal act.” United States v. Ostrander,
411 F.3d 684, 691 (6th Cir. 2005). Title 18 U.S.C. §
924(c)(1)(A) provides for additional punishment for
“any person who, during and in relation to any crime of
violence ... uses or carries a firearm, or who, in
furtherance of any such crime, possesses a firearm.”
This court has repeatedly held that the Hobbs Act
requires the government to prove only that the offense
had a de minimis effect on interstate commerce to
satisfy the jurisdictional requirement. United States
v. Baylor, 517 F.3d 899, 901–02 (6th Cir. 2008); Davis,
473 F.3d at 681–83. Our previous published opinions
require us to reject Frazier’s challenge to the de
minimis standard. Because Frazier’s challenge to his
convictions for use of a firearm during a crime of
violence under 18 U.S.C. § 924(c) is predicated on the
invalidity of his Hobbs Act convictions, it also fails.
Frazier did not raise in his brief the issue of
whether the government offered sufficient evidence at
trial to satisfy the de minimis standard. Had he done
so, we would find that there was sufficient evidence to
establish the interstate nexus required for each of the
charges in this case. Each victim purchased supplies
from out of state or provided accommodations to out-of20

state guests. Thus, a rational juror could have found
that Frazier’s actions had a de minimis effect on
interstate commerce, and that is all that is required.
See, e.g., United States v. Smith, 182 F.3d 452, 456
(6th Cir. 1999) (government met burden where stores
robbed did substantial business in products originating
from out of state).
United States v. Frazier, 414 F. App’x at 782-84. No basis exists
for revisiting this determination.
Because the Court of Appeals has concluded that the
interstate commerce requirement has been satisfied, trial counsel
was not deficient in failing to raise the issue and Movant
suffered no prejudice.
Appellate counsel was not ineffective because he raised the
issue suggested by Movant.10 In his appellate brief, Movant cited
the concurring opinion in United States v. Wang, 222 F.3d 234,
246 (6th Cir. 2000), which argued that a robbery of restaurant
owners in their home that netted $1200 in restaurant receipts was
insufficient to establish even a de minimis effect on interstate
commerce. The majority did not adopt this reasoning and, instead,
reversed the defendant’s conviction, holding that a showing of a
substantial connection between the victim and interstate commerce
is required where the robbery victim is an individual rather than
a business engaged in interstate commerce.

Id. at 238-40. Thus,

appellate counsel made the precise argument urged by Movant,

10
Br. of the Def./Appellant at 3, 11-21, United States v. Frazier, No.
09-6186 (6th Cir. Feb. 22, 2010).

21

which the Court of Appeals implicitly rejected when it affirmed
his convictions. Movant cannot establish either deficient
performance or prejudice.
The first issue is without merit and is DISMISSED.
B.

Federal Jurisdiction Over the § 922(g) Count (Claim 2)

In his second issue, Movant argues that “[p]ossession of [a]
firearm, whether or not by prior felon[,] is not federal crime,
thus no venue to prosecute.” (ECF No. 1 at 5; see also id.
(“Possession of firearm is not a federal crime any longer, no
venue.”) Movant also argues that his appellate counsel was
ineffective in failing to raise the issue. (Id. at 6.) Although
this issue is not clearly presented, it appears that Movant is
challenging his conviction on the § 922(g) count (Count 11) as
violative of the Second Amendment.
In District of Columbia v. Heller, 554 U.S. 570, 595, 128 S.
Ct. 2783, 2799, 171 L. Ed. 2d 637 (2008), the Supreme Court held
that the Second Amendment to the United States Constitution
protects the right of individuals to keep and bear arms. The
Supreme Court noted, however, that, “[l]ike most rights, the
right secured by the Second Amendment is not unlimited. . . .
Although we do not undertake an exhaustive historical analysis
today of the full scope of the Second Amendment, nothing in our
opinion should be taken to cast doubt on longstanding
prohibitions on the possession of firearms by felons . . . .”

22

Id. at 626, 128 S. Ct. at 2816-17. Applying that language, the
Court of Appeals has held that 18 U.S.C. § 922(g), which bars
convicted felons from possessing firearms, does not violate the
Second Amendment. United States v. Whisnant, 391 F. App’x 426,
430 (6th Cir. 2010); United States v. Khami, 362 F. App’x 501,
507-08 (6th Cir. 2010); United States v. Frazier, 314 F. App’x
801, 807 (6th Cir. 2008).
Appellate counsel was not ineffective in failing to raise
this issue and Movant suffered no prejudice. The second issue is
without merit and is DISMISSED.
C.

The Sufficiency of the Evidence to Support Counts Five
and Six (Claims 3 & 4)

In his third issue, Movant appears to argue that the
evidence is insufficient to support his convictions on Counts 5
and 6, which arise from the McDonald’s robbery, because he was
not identified. (ECF No. 1 at 7.) Movant avers that “[t]here is
no one on record who identified Petitioner as criminal, but
someone informed manager who called him by name, (coaching?) [N]o
motion for acquittal of this count.” (Id.) Movant contends that
his attorney was ineffective in failing to raise this issue.
(Id.)
In his fourth issue, Movant claims that there was no
physical evidence to support his conviction for the McDonald’s
robbery. (Id. at 8.) He emphasizes the absence of “prints, DNA,
evidence.” (Id.) Movant contends that his attorney was
23

ineffective in failing to move for a judgment of acquittal on
these counts. (Id.)
The legal standard for reviewing a challenge to the
sufficiency of the evidence in a federal criminal case is as
follows:
When reviewing a criminal conviction for sufficiency of
the evidence, we ask “whether, after viewing the
evidence in the light most favorable to the
prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307,
319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). “All
reasonable inferences and resolutions of credibility
are made in the jury’s favor.” United States v.
Washington, 702 F.3d 886, 891 (6th Cir. 2012). A
convicted defendant bears “a very heavy burden” to show
that the government’s evidence was insufficient. United
States v. Kernell, 667 F.3d 746, 756 (6th Cir. 2012).
As is generally the case, circumstantial evidence alone
may be sufficient to support a conviction. United
States v. Graham, 622 F.3d 445, 448 (6th Cir. 2010).
United States v. Tragas, 727 F.3d 610, 617 (6th Cir. 2013).
At trial, Tabitha Stegall, the McDonald’s manager, testified
that she was unable to make a positive identification of the
robber from a photo lineup. (Tr. 151, 154, United States v.
Frazier, No. 06-20430-STA (W.D. Tenn.), ECF No. 112.) Devin
Hines, who was also working that night, told the police the night
of the robbery that he would not be able to identify the robber.
(Id. at 164-65.) Hines was able to identify Frazier as the robber
at trial. (Id. at 165.) Hines explained that he told the police
the day of the robbery that he could not identify the perpetrator
“[b]ecause I had so much emotions and stuff running through me, I
24

just wasn’t focused on that.” (Id. at 166.) Memphis Police
Detective Walter Davidson testified that he interviewed Frazier
on March 15, 2006. (Tr. 487-88, 492-93, United States v. Frazier,
No. 06-20430-STA (W.D. Tenn.), ECF No. 113.) During that
interview, Frazier gave a detailed confession to the McDonald’s
robbery. (Id. at 529-34.)
The testimony of Hines identifying Frazier as the person who
committed the McDonald’s robbery, and Frazier’s written statement
confessing to the robbery, are more than sufficient to allow a
reasonable juror to return a guilty verdict on Counts 5 and 6.
Counsel was not deficient for failing to move for a judgment of
acquittal on this basis, and Movant suffered no prejudice.
The third and fourth issues are without merit and are
DISMISSED.
D.

The Allegedly Improper Expert Testimony (Claim 5)

In his fifth issue, Movant argues that the Court erred in
admitting the opinion testimony of Benny Allen, an interstate
nexus specialist with the Bureau of Alcohol, Tobacco, Firearms
and Explosives. (ECF No. 5 at 2-5.) This issue is not cognizable
in a § 2255 motion because it is properly raised on direct
appeal. See supra pp. 13-14. An error in the admission of
evidence is a nonconstitutional claim that must be raised on
direct appeal. Phillips, 229 F.3d at 552 (challenge to jury
instructions procedurally defaulted due to failure to raise on

25

direct appeal); Arana v. United States, Nos. 03-CV-73023, 95-CR80282, 2009 WL 454700, at *4 (E.D. Mich. Feb. 24, 2009)
(admission of evidence). In this case, Movant does not attribute
his procedural default to the ineffective assistance of counsel.
Even if that were not the case, the issue is meritless.
Defense counsel’s voir dire established that Allen was relatively
new to nexus identification and had not completed his training.
(Tr. 609-12, United States v. Frazier, No. 06-20430-STA (W.D.
Tenn.), ECF No. 114.) At the conclusion of his voir dire, defense
counsel stated that “I’m satisfied that Agent Allen is a
qualified — has specialized training and knowledge to testify in
this matter.” (Id. at 612.) “Strategic choices made after
thorough investigation of law and facts relevant to plausible
options are virtually unchallengeable.” Strickland, 466 U.S. at
690, 104 S. Ct. at 2066.
Movant cannot show that he was prejudiced by his attorney’s
decision not to challenge the qualifications of Allen. Allen
testified that the firearm involved in this case was not
manufactured in Tennessee and, therefore, had moved in interstate
commerce at some time. (Id. at 612-13.) Allen determined that the
firearm was manufactured in California. (Id. at 616-17.) Movant
does not dispute the substance of Allen’s testimony. Had the
Court ruled that Allen was not entitled to testify to his
opinion, the Government could have called someone else to testify

26

to the same facts.
The fifth issue is without merit and is DISMISSED.
Because every issue presented by Movant has been dismissed,
his motion pursuant to 28 U.S.C. § 2255 is DENIED. Judgment shall
be entered for the United States.
IV.

APPEAL ISSUES
Twenty-eight U.S.C. § 2253(a) requires the district court to

evaluate the appealability of its decision denying a § 2255
motion and to issue a certificate of appealability (“COA”) “only
if the applicant has made a substantial showing of the denial of
a constitutional right.” 28 U.S.C. § 2253(c)(2); see also Fed. R.
App. P. 22(b). No § 2255 movant may appeal without this
certificate.
A COA may issue only if the movant has made a substantial
showing of the denial of a constitutional right, and the COA must
indicate the specific issue(s) that satisfy the required showing.
28 U.S.C. §§ 2253(c)(2) & (3). A “substantial showing” is made
when the movant demonstrates 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.” Miller-El v. Cockrell, 537 U.S. 322, 336, 123
S. Ct. 1029, 1039, 154 L. Ed. 2d 931 (2003) (internal quotation
marks & citation omitted); see also Henley v. Bell, 308 F. App’x

27

989, 990 (6th Cir. 2009) (per curiam) (same). A COA does not
require a showing that the appeal will succeed. Miller-El, 537
U.S. at 337, 123 S. Ct. at 1039; Caldwell v. Lewis, 414 F. App’x
809, 814-15 (6th Cir. 2011). Courts should not issue a COA as a
matter of course. Bradley v. Birkett, 156 F. App’x 771, 773 (6th
Cir. 2005).
In this case, for the reasons previously stated, the issues
raised by Movant lack substantive merit and, therefore, he cannot
present a question of some substance about which reasonable
jurists could differ. The Court therefore DENIES a certificate of
appealability.
The Sixth Circuit has held that the Prison Litigation Reform
Act of 1995, 28 U.S.C. §§ 1915(a)-(b), does not apply to appeals
of orders denying § 2255 motions. Kincade v. Sparkman, 117 F.3d
949, 951 (6th Cir. 1997). Rather, to appeal in forma pauperis in
a § 2255 case, and thereby avoid the appellate filing fee
required by 28 U.S.C. §§ 1913 and 1917, the prisoner must obtain
pauper status pursuant to Federal Rule of Appellate Procedure
24(a). Kincade, 117 F.3d at 952. Rule 24(a) provides that a party
seeking pauper status on appeal must first file a motion in the
district court, along with a supporting affidavit. Fed. R. App.
P. 24(a)(1). However, Rule 24(a) also provides that if the
district court certifies that an appeal would not be taken in
good faith, or otherwise denies leave to appeal in forma

28

pauperis, the prisoner must file his motion to proceed in forma
pauperis in the appellate court. See Fed. R. App. P. 24(a) (4)(5).
In this case, for the same reasons the Court denies a
certificate of appealability, the Court determines that any
appeal would not be taken in good faith. It is therefore
CERTIFIED, pursuant to Federal Rule of Appellate Procedure 24(a),
that any appeal in this matter would not be taken in good faith.
Leave to appeal in forma pauperis is DENIED.11
IT IS SO ORDERED this 20th day of December, 2013.

s/ S. Thomas Anderson
S. THOMAS ANDERSON
UNITED STATES DISTRICT JUDGE

11

If Movant files a notice of appeal, he must also pay the full $505
appellate filing fee or file a motion to proceed in forma pauperis and supporting
affidavit in the Sixth Circuit Court of Appeals within thirty (30) days.

29