Larry Frazier v. John Varga

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-2661
LARRY FRAZIER,
Petitioner-Appellant,
v.
JOHN E. VARGA, Warden,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:11-cv-07484 — Sharon Johnson Coleman, Judge.
____________________
ARGUED SEPTEMBER 28, 2016 — DECIDED DECEMBER 1, 2016
____________________
Before KANNE, SYKES, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. Just days after his release from
prison in 1995, petitioner Larry Frazier entered the apartment
of a sixty-two-year-old woman and attempted to rob her at
gunpoint. For his troubles, he received a bullet wound. Fra-
zier was convicted of home invasion and sentenced to sixty
years. The sentence was increased because of the victim’s age.
After failing to obtain relief from the conviction and sentence
in the state courts, Frazier sought federal habeas corpus relief
2 No. 15-2661
under 28 U.S.C. § 2254. He now appeals the district court’s de-
nial of his petition. We affirm.
Frazier’s sole claim on appeal is that his trial lawyer was
ineffective by failing to warn him he faced a potentially longer
sentence based on the victim’s age. To reach the merits of Fra-
zier’s claim, we would need to overcome several procedural
obstacles, but one is decisive at the most basic procedural
level. The one claim he pursues on appeal was not presented
in the district court. “[A]rguments in a federal habeas petition
which were not raised to the district court are not properly
raised for the first time on appeal.” Mertz v. Williams, 771 F.3d
1035, 1043 (7th Cir. 2014), citing Sanders v. Cotton, 398 F.3d 572,
583 (7th Cir. 2005).
I. Factual and Procedural Background
A. The Home Invasion
We accept the facts determined in the state courts. 28
U.S.C. § 2254(e)(1). At trial, Mary Holman testified that she
lived alone in a street-level apartment in Calumet City, Illi-
nois. On an early morning in September 1995, she had left the
door to her home open as she carted in items from her car.
Frazier had been released recently from prison after serv-
ing a sentence for robbery. Seeing Holman’s open door that
morning, he entered her ground-floor apartment with a coat
over his hand. He told her, “I’m gonna shoot you, give me
your money,” and ordered her to lie down. Holman replied,
“I can’t, Mister, I got arthritis.” She also had no money to give
him. Holman tried to stall Frazier by saying she had money
stashed around the apartment. She warned Frazier that her
husband—a husband she did not have—would be right back.
No. 15-2661 3
As Holman started rummaging through drawers, Fra-
zier—also rummaging through drawers—found a .38 caliber
revolver in a nightstand. He threatened Holman again: if she
did not give him some money, he would shoot her. Finding a
cookie tin full of pennies, Holman handed it over. Frazier took
a look and dumped the contents of the tin on the floor. He
again threatened to kill her if she did not come up with some
real money.
Not knowing what else to do, Holman grabbed the gun
with both hands and struggled with Frazier. The gun fired,
but Holman was not injured. Still, she failed to wrest the gun
from Frazier, who now held it to her head. With no other op-
tion, she pled for her life, claiming to know where her fictional
husband kept the real money. Frazier gave Holman one last
chance to search through a table for money, and he demanded
her car keys. She tossed them his way, but he did not pick
them up.
Holman then saw that Frazier was bleeding. Seeing her
chance to escape, she ran from the apartment. Luckily, she
found two policemen in a nearby alley and “just ran up to
[th]em and fell in their arms.” The police found Frazier in Hol-
man’s apartment. He was slumped over with a jacket pressed
against his chest.
B. Frazier’s Conviction and Sentence
Frazier survived the gunshot and was indicted on numer-
ous charges. He went to trial on charges of home invasion and
residential burglary. Frazier was adamant that he was inno-
cent. His pro se motion to dismiss the indictments asserted that
he entered the apartment only after he heard a woman
scream, and that he, having been shot after trying to help, was
4 No. 15-2661
the real victim. In a pre-trial letter to the trial judge, Frazier
asked for an “equal chance” to prove his innocence at trial.
Frazier told his lawyer that he did not want to pursue a plea
because he “was innocent and wanted a jury trial so that he
could tell his story.”
Still, Frazier’s fingerprints were found on the cookie tin.
An analysis of his shirt revealed that the gun was discharged
from less than a foot away but not in contact with the shirt,
corroborating Holman’s testimony. The jury quickly found
Frazier guilty.
At sentencing, Frazier still maintained his innocence. The
maximum term on the Class X home invasion felony was
thirty years, 730 Ill. Comp. Stat. 5/5-8-1(a)(3) (West 1999), but
that maximum was increased by thirty additional years be-
cause Holman was a vulnerable victim over sixty years old.
730 Ill. Comp. Stat. 5/5-8-2(a)(2), 5/5-5-3.2(b)(4)(ii) (West 1999).
The judge sentenced Frazier to an extended-term sentence of
sixty years. The judge emphasized Frazier’s recent release
from prison and his extensive criminal history, which in-
cluded convictions for multiple robberies.
C. Direct Appeal & State Post-Conviction Proceedings
Frazier found no relief from the state courts. On direct ap-
peal, the Illinois Appellate Court denied Frazier’s request for
new counsel but initially granted him leave to file a supple-
mental pro se brief. See People v. Frazier, 810 N.E.2d 325 (Ill.
App. 2001) (mem.). The court was then persuaded by the State
that Illinois law did not permit an appellant to proceed sim-
ultaneously pro se and with counsel. The court struck the pro
se brief without addressing the merits of any of the twenty-
No. 15-2661 5
eight additional arguments that Frazier raised in the pro se fil-
ing. Id.
The brief filed by Frazier’s appellate counsel, which the
court did consider, raised a single claim: that the extended-
term sentence was unconstitutional under Apprendi v. New Jer-
sey, 530 U.S. 466 (2000), because the victim’s age was not
proven at trial. The appellate court affirmed, holding that any
failure to present or prove the victim’s age was harmless error.
810 N.E.2d 325. The Illinois Supreme Court denied leave to
appeal.
Frazier then filed a pro se petition for post-conviction relief
in state court and amended it several times. These pro se filings
asserted varied claims contesting the conviction, the en-
hanced sentence, and the adequacy of counsel. Frazier’s ap-
pointed counsel did not amend the pro se filing, and the trial
court denied Frazier’s pro se petition because he did not estab-
lish the requisite insufficient performance and prejudice for a
successful ineffective assistance of counsel claim. People v. Fra-
zier, No. 1-09-1889, 2011 Ill. App. Unpub. LEXIS 2446, at *7 (Ill.
App. 2011).
On appeal from the denial of post-conviction relief, Fra-
zier’s appointed counsel raised a single claim: ineffective as-
sistance of post-conviction relief counsel for failure to “make
any amendments necessary for an adequate presentation of
Frazier’s ineffective assistance of counsel claim.” The court af-
firmed the denial of relief, noting the general rule that there is
no constitutional right to post-conviction counsel and finding
that Frazier had not shown deficient performance under the
Illinois Post-Conviction Hearing Act. Frazier, 2011 Ill. App.
Unpub. LEXIS 2446, at *9–16.
6 No. 15-2661
D. Federal Habeas Corpus
After exhausting state court remedies, Frazier filed a pro se
habeas petition in the federal district court. He listed four
grounds for relief: (1) “failure to notify of sentence enhance-
ment,” (2) “petitioner was sentenced to an extended term sen-
tence on a factual finding by the Judge,” (3) “the appellate
court ruled Apprendi violation on sentence and conviction
‘harmless error,’” and (4) “the ineffectiveness of trial counsel,
appellate counsel, and post-conviction appellate counsel.” He
also filed a separate motion to supplement his petition assert-
ing “a free standing claim of Actual Innocence … as well as
Legal Innocence.”
Giving the pro se petition a flexible and generous reading,
the district court interpreted it as presenting two claims: an
Apprendi claim and an ineffective assistance of counsel claim
that in turn had three parts—“(1) trial counsel failed to bring
a motion for a sentence reduction before filing the direct ap-
peal; (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.” Frazier v. Acevedo,
No. 11 C 7484, 2015 WL 4506717, at *2 (N.D. Ill. 2015).
The district court held that the state appellate court’s rul-
ing on the Apprendi claim was not an unreasonable applica-
tion of clearly established Supreme Court precedent. The
court dismissed the claim for ineffective assistance of post-
conviction relief counsel because generally there is no federal
right to post-conviction counsel. The court then found that
Frazier had procedurally defaulted the two other claims for
ineffective assistance of counsel. Frazier’s complaint that his
trial lawyer did not move for a sentence reduction was never
No. 15-2661 7
presented through a full round of state review, as required for
federal habeas relief.
The district court took a detailed look at whether the claim
for ineffective assistance of appellate counsel for failure to
raise issues in addition to the Apprendi issue had been fairly
presented to the state courts. The issue turned on whether
Frazier’s stricken pro se filings in his appeal fairly presented
the claim. The district court ultimately concluded that the pro
se filings did not present the issue fairly so that this claim was
also defaulted. The court also found that the procedural de-
fault could not be excused. Finally, the court rejected Frazier’s
attempt to excuse his default by showing actual innocence.
We granted a certificate of appealability on the ineffective as-
sistance of counsel claims based on the failure to seek a re-
duced sentence and to raise additional issues on appeal.
II. The New Claim on Appeal
With the help of able counsel in this appeal, and with am-
ple time to evaluate the issues, Frazier has not pursued the
issues on which we granted a certificate of appealability. The
only claim presented to us on appeal is “that trial counsel was
ineffective for failing to put Petitioner on notice he was eligi-
ble for an extended-term sentence because of the victim’s
age.” On the merits, the premise of this claim is that Frazier
would have been willing to plead guilty if he had known he
faced the extended sentence for an older victim, though we
must note that we see no indication in the record that Frazier
would have been willing to do so or that the prosecutor would
have offered a deal acceptable to him.
We do not decide the merits of the claim, however, because
it was not presented to the federal district court. Regardless of
8 No. 15-2661
whether a habeas claim was fairly presented or defaulted in
the state courts, if an argument was not presented to the fed-
eral district court, it is forfeited in this court. Pole v. Randolph,
570 F.3d 922, 937 (7th Cir. 2009). “[A]rguments in a federal ha-
beas petition which were not raised to the district court are
not properly raised for the first time on appeal.” Mertz v. Wil-
liams, 771 F.3d 1035, 1043 (7th Cir. 2014), citing Sanders v. Cot-
ton, 398 F.3d 572, 583 (7th Cir. 2005); see also Dixon v. Chrans,
986 F.2d 201, 203 (7th Cir. 1993).
To avoid this critical problem, Frazier points out correctly
that we should construe his pro se filings liberally. See Erickson
v. Pardus, 551 U.S. 89, 94 (2007), quoting Estelle v. Gamble, 429
U.S. 97, 106 (1976). A “pro se complaint, however inartfully
pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers.” Id. Accordingly, pro se habeas
petitions are “entitled to a liberal construction.” Perruquet v.
Briley, 390 F.3d 505, 512 (7th Cir. 2004), citing Jackson v. Duck-
worth, 112 F.3d 878, 881 (7th Cir. 1997) (finding cognizable
claim when pro se petition “contains enough detail to describe
a claim that is within the power of a federal court to address”).
Even with the generous reading that we give pro se filings,
though, this claim simply was not presented to the district
court.
Frazier argues that ground one of his federal habeas peti-
tion presented his ineffective assistance of counsel claim to the
district court. Ground one of the habeas petition read in its
entirety: “Failure to Notify of Sentence Enhancement See Ex-
hibits A, B, C, D” — “Petitioner was not appraised of, nor ad-
monished of facts that would be used to enhance sentence to
an extended term sentence, based on aggravating factors not
presented to the jury, and proven beyond a reasonable doubt,
No. 15-2661 9
and could not properly defend himself of all charges and
facts.” Ground one made no reference to “ineffective assis-
tance of counsel”—language that the petitioner knew well, as
he showed in previous pro se filings and elsewhere in the fed-
eral petition itself. This circuit has “not routinely spared pro
se litigants from the same waiver rules attorneys face,” and
we see no reason to do so in this instance. See Dixon, 986 F.2d
at 203 (7th. Cir. 1993). Even with a liberal construction of Fra-
zier’s pro se habeas petition, we cannot find an ineffective as-
sistance of counsel claim in a claim addressed so directly to
the prosecution and judge.
That ground one was not a claim of ineffective counsel be-
comes even clearer upon consideration of ground four, which
expressly asserted ineffectiveness of several of his lawyers, in-
cluding his original trial counsel. Ground four read in full:
“The Ineffectiveness of Trial Counsel, Appellate Counsel, and
Post-Conviction Appellate Counsel”—“Trial counsel Tim
Nance [sic] ineffectiveness occurred when he neglected to file
a motion for sentence reduction, before filing a direct appeal,
without consent. Appellate counsel for failing to argue any-
thing other than Apprendi on direct appeal. Post-Conviction
counsel for failure to amend Post-Conviction Petition, on trial
counsel’s failure.” In the explicit claim for ineffective assis-
tance of counsel, there is no reference to any failure to notify
Frazier of a potential extended-term sentence.
Frazier also appended four exhibits to his petition—inter-
net print outs of portions of Illinois Public Act 91-0953.1 Those
1 In relying on Public Law 91-0953 as a source for the Illinois Compiled
Statutes, Frazier’s exhibits actually highlight portions of the relevant stat-
ute that went into effect in 2001, after his indictment and trial.
10 No. 15-2661
attachments also made clear that Frazier’s claim about the fail-
ure to notify him of a potential extended-term sentence was
made in reference to the prosecution’s responsibilities with re-
spect to the indictment.
For example, he referred to requirements such as “When
the State seeks an enhanced sentence because of a prior con-
viction, the charge shall also state the intention to seek an en-
hanced sentence,” and “if an alleged fact … is not an element
of an offense but is sought to be used to increase the range of
penalties for the offense beyond the statutory maximum that
could otherwise be imposed for the offense, the alleged fact
must be included in the charging instrument.” Ill. Pub. L. No.
91-0953 (Feb. 23, 2001); see also 725 Ill. Comp. Stat. 5/111-
3(5)(c) (West 1999); 725 Ill. Comp. Stat. 5/111-3(5)(c-5) (West
2001).
Frazier’s exhibits also highlighted the law governing the
remedy he seeks. As a remedy for failure to prove at trial a
fact “necessary to increase the punishment” beyond the max-
imum, the defendant should either be re-sentenced to the
non-enhanced term or, “if the State files notice of its intention
to again seek the extended sentence, the defendant shall be
afforded a new trial.” Ill. Pub. L. No. 91-0953 (Feb. 23, 2001);
see also 730 Ill. Comp. Stat. 5/5-5-4 (West 2001). Those reme-
dies are not consistent with a claim for ineffective assistance
of counsel for failure to warn him of the risk of an extended
sentence based on the victim’s age.
The exhibits Frazier provided to the district court point
not to defense counsel but to the State: the prosecution’s fail-
ure to include its intention to seek an extended-term sentence
in the charging instrument, the prosecution’s failure to prove
the victim’s age beyond a reasonable doubt at trial, and the
No. 15-2661 11
sentencing judge’s inappropriate reliance on the unproven
fact at sentencing. None of the exhibits help Frazier link his
ground one claim for failure to provide notice of the sentence
enhancement and his ground four claim of ineffective assis-
tance of counsel.
The district court correctly interpreted the ineffective as-
sistance of counsel claim as distinct from the “notice” claim.
In fact, the district court did not shy away from reading mul-
tiple grounds into a single cognizable claim on habeas review.
The district court correctly read grounds one through three of
the habeas petition—(1) failure to charge or notify of possible
enhanced sentence; (2) extended-term sentence premised on
judicial fact finding; and (3) state appellate court’s unreason-
able application of harmless error standard—as asserting a
single Apprendi claim. 2015 WL 4506717, at *3–5. The district
court then analyzed the three distinct claims for ineffective as-
sistance of counsel, rejecting them for reasons that Frazier
does not challenge on appeal. Id. at *5–10.
Our liberal construction of the pro se habeas petition can-
not stretch a claim about the prosecution’s failure to give no-
tice of a possible sentence enhancement to become a claim of
ineffective assistance of trial counsel for failure to notify Fra-
zier of the potential extended-term sentence. The exhibits at-
tached to the petition make clear that the claim Frazier asserts
with regard to notice is related to prosecutorial and judicial
conduct, not ineffective assistance of trial counsel. The district
court’s analysis only further undergirds this conclusion. Ac-
cordingly, the argument that trial counsel was ineffective for
failure to notice petitioner of a potential extended-term sen-
tence has been presented for the first time in a federal court
on appeal, which is too late, so our analysis ends here.
12 No. 15-2661
We need not address whether Frazier’s stricken pro se fil-
ings in his appeals were sufficient to present those issues
fairly to the state courts because he does not pursue those is-
sues here. We also need not decide whether Frazier could
avoid procedural default on certain issues by claiming his
post-conviction counsel was ineffective, relying on the excep-
tion to procedural default laid out in Trevino v. Thaler, 569 U.S.
—, 133 S. Ct. 1911 (2013), and Martinez v. Ryan, 566 U.S. —, 132
S. Ct. 1309 (2012). Again, he does not pursue the relevant is-
sues on the merits.
The district court’s judgment denying habeas corpus relief
is AFFIRMED.