James P. Frazier v. Charlotte Jenkins

770 F.3d 485, 2014 FED App. 0269P, 2014 U.S. App. LEXIS 20645, 2014 WL 5419936
CourtCourt of Appeals for the Sixth Circuit
DecidedOctober 27, 2014
Docket11-4262
StatusPublished
Cited by73 cases

This text of 770 F.3d 485 (James P. Frazier v. Charlotte Jenkins) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
James P. Frazier v. Charlotte Jenkins, 770 F.3d 485, 2014 FED App. 0269P, 2014 U.S. App. LEXIS 20645, 2014 WL 5419936 (6th Cir. 2014).

Opinions

MOORE, J!, delivered the opinion of the court, in which GIBBONS, J., joined, and SUTTON, J. joined in part. SUTTON, J. (pp. 505-07), delivered a separate opinion concurring in all but Section III. A of the majority opinion.

OPINION

KAREN NELSON MOORE, Circuit Judge.

An Ohio state-court jury convicted Petitioner-Appellant, James Frazier, of aggravated murder (with two death-penalty specifications), aggravated burglary, and aggravated robbery. The jury recommended the death penalty, and the state-trial-court judge sentenced him to die by lethal injection. After exhausting his state appeals, Frazier filed a petition for a writ of habeas corpus in federal district court, arguing inter alia that he is ineligible for the death penalty under Atkins v. Virgi[490]*490nia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), due to his intellectual disability, that his trial counsel provided ineffective assistance, and that Ohio’s lethal-injection regime is unconstitutional. The district court denied Frazier’s petition. Because the state courts’ decisions were not contrary to, nor an objectively unreasonable application of, clearly established federal law as defined by the United States Supreme Court, we AFFIRM the district court’s denial of Frazier’s petition.

I. BACKGROUND

A. Facts

Early in the morning of March 2, 2004, Frazier brutally murdered Mary Stevenson. The police found Stevenson’s body at the foot of her bed later that evening. On March 3, the police searched the dumpster used by Stevenson and other first-floor residents of the apartment complex, found nothing, and proceeded to search the sealed dumpster used by Frazier and other residents on the second through tenth floors. In this second dumpster, the police discovered some of Stevenson’s belongings, as well as a bloody knife, which matched one missing from Stevenson’s knife block. They also found a bloody t-shirt (size XXL) and pieces of mail addressed to Frazier near Stevenson’s belongings. Based on this information, investigators sought, obtained, and executed a search warrant for Frazier’s apartment where they confiscated two t-shirts that matched the bloody one’s brand, style, and size.

On March 4, detectives William Seymour and Denise Knight interviewed Frazier in connection with Stevenson’s murder. They read Frazier his Miranda rights, and he waived them. See Joint Appendix (“J.A.”) Vol. 7 at 3252-54 (Seymour Test.); App’x to Writ Vol. 8 at 195 (Miranda waiver). Det. Seymour testified that Frazier appeared “clearheaded,” that he understood his rights, and that he was not “under the influence of ... crack cocaine or alcohol.” J.A. Vol. 7 at 3252:21-3253:6 (Seymour Test.). During questioning, Frazier gave answers that the detectives found to be inconsistent with other evidence in the case. Additionally, the police conducted forensic tests on the knife, t-shirt, and various hairs and bodily fluid samples, which implicated Frazier.

On March 9, a grand jury indicted Frazier for aggravated murder with two death-penalty specifications, in violation of Ohio Revised Code § 2903.01(B); aggravated robbery, in violation of § 2911.01(A)(3); and aggravated burglary, in violation of § 2911.11(A)(1). J.A. Vol. 1 at 294-95 (Indictment). The state trial court appointed counsel, and counsel, in turn, requested that the court authorize funds for the employment of a psychologist and a mitigation expert. The court granted this motion on December 30, 2004.

Frazier’s counsel hired Dr. Jeffrey L. Smalldon, a board-certified forensic psychologist with death-penalty experience, to determine whether Frazier was mentally retarded.1 Dr. Smalldon met with Frazier [491]*491twice: on January 12 and May 2, 2005. J.A. Vol. 3 at 1075 (Smalldon Report). He administered a battery of tests, including the Wide Range Achievement Test-Revision 3 (“WRAT-3”), the Wechsler Adult Intelligence Scale-Third Edition (‘WAISIII”), the Bender Visual Motor Gestalt Test (“Bender”), the Trail Making Test (Parts A and B), the Aphasia Screening Test, and the Rotter Incomplete Sentences Blank Test. Dr. Smalldon considered administering several other tests, but he “concluded that [Frazier’s] limited reading and comprehension abilities wouldn’t enable him to produce valid profiles on instruments such as those.” Id. at 1075.

On the WRAT-3, which measures “an individual’s ability levels,” J.A. Vol. 8 at 3525:7-8 (Smalldon Test.), Frazier scored “within the range ... typically associated with either mild mental retardation or borderline intellectual functioning,” J.A. Vol. 3 at 1083 (Smalldon Report). He could not spell “circle,” “enter,” or “believe”; he could not do “fairly simple, two- and three-column subtraction problems”; he could not “correctly read words like ‘lame’ and ‘split.’ ” Id.

On the WAIS-III, the standard IQ test, Frazier received a Verbal IQ score of 77, a Performance IQ score of 72, and a Full Scale IQ score of 72.2 Id. On particular WAIS-III subtests, Frazier struggled. He defined “yesterday” to mean “a day after”; “sentence” meant “more than one word”; “confide” meant “to ask questions from someone else”; and “ballad” meant “it’s approved !” Id. at 1083-84 (internal quotation marks omitted). As Dr. Small-don noted, Frazier “had no idea how to define words like ‘ponder,’ ‘tranqil’ [sic], ‘reluctant,’ [or] ‘plagiarize.’ ” Id. at 1084. In his report, Dr. Smalldon noted that Frazier’s scores suggested “intellectual functioning at around the cusp of the ‘mildly retarded’ and ‘borderline intellectual functioning’ ranges.” Id.

The Bender and Aphasia tests did not go well either. On Part B of the Trail Making Test, Frazier made two errors and took seven minutes to complete a task that “the vast majority of unimpaired subjects can easily complete — without sequencing errors — in 60-90 seconds.” Id. at 1085.

Dr. Smalldon also considered Frazier’s school records that had been gathered by the court-appointed mitigation specialist. Frazier’s elementary school records note that his scholastic achievement was “not too bad, but [he] is a B.A. pupil.” Id. at 1120 (Elementary School Record). Dr. Smalldon guessed that “B.A.” stood for “below average.” J.A. Vol. 8 at 3579:16 (Smalldon Test.). According to Frazier’s high school records, he received exclusively “D” grades, except for physical education class in which he received two “Cs” and one “F.” J.A. Vol. 3 at 1103 (High School Record). The records also reflect that the school classified Frazier as a “slow learner,” that he attended special education classes, and that he withdrew from the tenth grade at nineteen years old. Id. at 1103-04.

Despite these tests and records, Dr. Smalldon did not find Frazier to be mentally retarded. Dr. Smalldon reported that Frazier could cash his disability check (which he received based on a finding of mental retardation), use a phone card, cook for himself, and travel on public transportation. Id. at 1085. These ac[492]*492tions led Dr. Smalldon to believe that Frazier functioned “not far above the upper threshold that’s typically used for demarcating the domain of ‘mild mental retardation.’ ” Id. at 1086.

In anticipation of a hearing to determine Frazier’s mental capacity, Dr.

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770 F.3d 485, 2014 FED App. 0269P, 2014 U.S. App. LEXIS 20645, 2014 WL 5419936, Counsel Stack Legal Research, https://law.counselstack.com/opinion/james-p-frazier-v-charlotte-jenkins-ca6-2014.