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Frazier v. Acevedo

United States District Court, N.D. Illinois

July 23, 2015

Larry Frazier, (A80194), Petitioner,
Gerado Acevedo, Warden, [1] Respondent.



Petitioner Larry Fraizer, a Dixon Correctional Center inmate, brings a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.[2] He was convicted of home invasion and residential burglary in the Circuit Court of Cook County. Illinois v. Frazier, No. 1-99-3820 (Ill.App.Ct. Oct. 30, 2001) (direct appeal ruling) (Rule 23 order). (Dkt. 13-1 at 16). He is serving a sixty year prison sentence. Dkt. 13-1 at 16).


The following facts are drawn from the state appellate court opinion on direct review, with supplement from the state trial court record, when necessary. "The state court's factual determinations are entitled to a presumption of correctness, and Petitioner has the burden of overcoming this presumption by clear and convincing evidence." Thompkins v. Pfister, 698 F.3d 976, 983 (7th Cir. 2012) (citing 28 U.S.C. § 2254(e)(1); McCarthy v. Pollard, 656 F.3d 478, 483 (7th Cir. 2011)).

Petitioner invaded the victim's home on September 26, 1995, at approximately 8 a.m. (Dkt. 13-1 at 17. The victim was a sixty-three years old woman at the time of the home invasion. ( Id .). She lived in a ground floor apartment in Calmuet City, Illinois. She had been making several trips moving items from her car to the apartment. ( Id .). She had left the door to her apartment open. ( Id .). Petitioner confronted the victim at the apartment with a coat over his hand. ( Id .). He told the victim to "give me your money, I'm gonna kill you, " as he entered into the apartment and toward the victim. ( Id .).

The victim moved around the apartment pretending to look for money in various drawers to stall Petitioner from harming her. ( Id .). At some point, the victim and Petitioner ended up by the victim's nightstand. The victim stored a handgun in the nightstand. ( Id .). Petitioner took the gun and threatened to shoot the victim if she did not give him any money. ( Id . at 17-18). The victim gave Petitioner a cookie tin full of pennies, but Petitioner rejected it and dumped the pennies on the floor. ( Id .).

At this point, the victim ran at Petitioner and grabbed the gun with both hands in an attempt to save her life. ( Id .). The gun fired during the struggle but the victim was not injured. ( Id .). Petitioner was able to keep the gun. He put the gun to the victim's head and said, "I'm gon' kill you now." ( Id .). The victim begged with Petitioner for a chance to find money, and Petitioner agreed. ( Id .). The victim again went rummaging through her house. ( Id .). During this period, Petitioner told the victim to give him her car keys. ( Id .). The victim pitched the car keys to Petitioner. ( Id .). She noticed that Petitioner did not pick up the keys and she observed a spot of blood on Petitioner. ( Id .). The victim concluded that Petitioner had been shot and fled from the apartment. ( Id .). She ran outside to two police officers who happened to be in the area. ( Id .).

Petitioner was slumped in a chair holding a tan jacket to his chest in the victim's apartment when the police arrived. ( Id .).

Various pieces of physical evidence were recovered from the apartment. The victim's gun was found underneath the chair where Petitioner was found slumped and holding the jacket to his chest in the victim's apartment. (Dkt. 13-5 at 256). Petitioner's fingerprints were recovered from the cookie tin. (Dkt. 13-1 at 18-19). Petitioner's clothing was tested by a firearms expert. ( Id . at 19). The expert concluded that, based on the smoke or powder pattern found on Petitioner's clothes, a firearm was discharged less than twelve inches away from Petitioner's shirt. ( Id .).

The present habeas corpus petition raises two claims. First is an Apprendi v. New Jersey, 530 U.S. 466 (2000), claim. Petitioner was sentenced to an enhanced sentence because the victim was over sixty years old when he invaded her home. The petition argues that this fact was not set forth in the indictment, and the sentencing judge, instead of the jury, found the fact. The sentencing judge also found the fact by a preponderance of the evidence instead of beyond a reasonable doubt. Petitioner also challenges the state appellate court's finding that the Apprendi error was harmless beyond a reasonable doubt.

Second, Petitioner raises three ineffective assistance of counsel arguments: (1) trial counsel failed to bring a motion for a sentence reduction before filing the direct appeal; (2) appellate counsel allegedly failed to raise any other issues on direct appeal besides the Apprendi issue; and, (3) post-conviction trial counsel was ineffective for not raising the failures by trial and direct appeal counsel.

Legal Standard

A writ of habeas corpus cannot be issued unless Petitioner demonstrates that he is in custody in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a). The Court's review of this claim is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Frazier filed his petition for a writ of habeas corpus pro se, and the court will therefore construe the petition liberally. See Gomez v. Randle, 680 F.3d 859, 864-65 (7th Cir. 2012). To be entitled to a writ of habeas corpus, Frazier's petition must establish that the state court decision he challenges is either "contrary to" or "an unreasonable application of" clearly established federal law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d)(1); Williams v. Taylor, 529 U.S. 362, 404-05 (2000). As the Supreme Court explained, a state court's decision is "contrary to" clearly established federal law "if the state court arrives at a conclusion opposite to that reached by the Court on a question of law" or "if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to ours." See Williams, 529 U.S. at 405.

With respect to the "unreasonable application" prong under § 2254(d)(1), a habeas petitioner must demonstrate that although the state court identified the correct legal rule, it unreasonably applied the controlling law to the facts of the case. See id . at 407. A state court's application of United States Supreme Court precedent is unreasonable if the court's decision was "objectively" unreasonable. Harrington v. Richter, 131 S.Ct. 770, 786, 178 L.Ed.2d 624 (2011) ("even a strong case for relief does not mean that the state court's contrary conclusion was unreasonable").

The Court's analysis is "backward looking." Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011). The Court is limited to the reviewing the record before the state court at the time that court made its decision. Id . The Court is also limited in considering the Supreme Court's "precedents as of the time the state court renders its decision.'" Greene v. Fisher, 132 S.Ct. 38, 44 (2011) ...

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