Fratta v. Davis

• Decision Date: 18 September 2017
• Docket Number: CIVIL ACTION NO. 4:13-CV-3438
• Parties: ROBERT ALAN FRATTA, Petitioner, v. LORIE DAVIS, Respondent.
• Court: U.S. District Court — Southern District of Texas

ROBERT ALAN FRATTA, Petitioner, v. LORIE DAVIS, Respondent.

CIVIL ACTION NO. 4:13-CV-3438

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

ENTERED: September 20, 2017

September 18, 2017

MEMORANDUM AND ORDER

On November 9, 1994, Farah Fratta was shot to death as she got out of her car. The police suspected the involvement of her husband Robert Fratta with whom she was engaged in a bitter divorce. It took months, however, to connect Fratta to the offense through the gunman, Howard Guidry, and the getaway driver, Joseph Prystash. All three men were eventually convicted of capital murder and sentenced to death. For over two decades, the three men have engaged in numerous challenges to their convictions and death sentences. Constitutional error resulted in federal habeas relief being granted to Fratta and Guidry. Both men were retried, and both are now again on death row.

Fratta has sought state appellate and post-conviction remedies relating to his second capital conviction and death sentence. Respondent Lorie Davis has moved for summary judgment. Having reviewed the record, pleadings, and the law, and giving special consideration to the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), the Court finds that Frrata has not shown an entitlement to federal habeas relief. The Court, therefore, will grant Respondent's motion for summary judgment, deny Fratta's petition, and dismiss this case. The Court will not certify any issue for consideration by the Court of Appeals for the Fifth Circuit.

BACKGROUND

The State of Texas first charged Fratta with capital murder in 1995. Randolph McDonald and Vivian King represented Fratta at his retrial in 2009.¹ On direct appeal from Fratta's second trial, the Texas Court of Criminal Appeals summarized the facts underlying his conviction as follows:

After several months of searching for someone to murder his estranged wife, Farah Fratta, [Fratta] found Joseph Prystash, who obtained the assistance of a third person, Howard Guidry. On November 9, 1994, the date of the murder, [Fratta] took the couple's three children to Wednesday-evening church classes and attended a parents' meeting at the church. Although the children regularly attended classes there, it was unusual for [Fratta] to stay for the parents' meeting. [Fratta] repeatedly left the meeting to make and receive telephone calls in the church office. Farah was shot and killed in her garage as she arrived home and stepped out of her car, shortly before [Fratta] was scheduled to return the children to her. She died approximately two years after she filed for divorce and less than three weeks before the scheduled divorce and custody trial date.

The state's theory concerning motive was that the prolonged divorce and child custody proceedings formed the underlying basis for [Fratta's] desire to have his wife killed. Several witnesses testified that initially, [Fratta] did not want the divorce. He complained that sex with Farah was not exciting, but he thought that they could resolve their problems without a divorce if Farah would agree to an "open marriage."

A social worker who was assigned by the family court to evaluate [Fratta] and Farah in connection with the custody proceedings testified that she interviewed [Fratta] in April 1993 and Farah in March 1993. At that time, [Fratta] did not want primary custody of the children, and Farah was in favor of an extended visitation schedule for appellant. However, [Fratta] and Farah were at odds because [Fratta] wanted to restrict Farah's ability to change residences with the children to within a 100-mile radius, while Farah did not want a restriction on her ability to move, and [Fratta] wanted joint managing control over decisions about the children's lives, such as medical and educational decisions, while Farah wanted sole control.

As the divorce proceedings dragged on, [Fratta] grew increasingly bitter and angry toward Farah. He complained to friends that he was broke all the time because he had to pay child support, and he said he wanted primary custody of the children so that Farah would have to pay him. At other times, he said that hewould not have to pay child support if he killed her. He complained that Farah would "win" because her parents had money. He regularly called her "the bitch."

During a deposition in December 1993, Farah explained why the divorce petition had been filed on grounds of cruelty. Afterward, [Fratta] told a friend that he was angry about the accusations she made against him, which he said were false, and he did not want other people to hear the things she had said. [Fratta] began actively seeking someone to kill Farah. He solicited many of his friends and acquaintances to kill her or to recommend someone who could kill her. Initially, most of his friends thought that he was joking or blowing off steam, but as he continued to talk about it over time, some of them came to believe that he was serious.

Prystash was not part of [Fratta's] regular circle of friends, but on several occasions in the weeks leading up to the offense, the two men were observed speaking privately together at a health club where they were both members. Prystash's girlfriend, Mary Gipp,² overheard Prystash communicating with [Fratta] by telephone. In addition, she often saw Prystash talking to her next-door neighbor, Guidry, on the balcony outside her apartment. On the evening that Farah was murdered, Gipp came home from work to find Guidry, dressed in black, sitting on the steps in front of her apartment. Prystash arrived a few minutes later but he soon left again. When he returned to Gipp's apartment that night, Guidry was with him.

The details of the offense were developed primarily through Gipp's testimony describing her observations and her conversations with Prystash, the testimony of some of Farah's neighbors who observed parts of the offense and saw a suspect leaving the scene, witnesses who spoke with and observed [Fratta] around the time of the offense, and law-enforcement officers who investigated the crime scene. Further evidence included telephone and pager records showing the times and locations of communications between appellant, Farah, Prystash, and Guidry on the evening of the offense and autopsy and ballistics reports.

Fratta v. State, No. AP-76,188, 2011 WL 4582498, at *2 (Tex. Crim. App. Oct. 5, 2011) (footnote added). The jury convicted Fratta of capital murder and sentenced him to death.

A Texas jury decides a capital defendant's sentence by answering special-issue questions. In this case, the jury had to answer: (1) will the defendant be a future danger to society; (2) did the defendant kill the victim, intend to kill her, or anticipate that a human life would be taken;and (3) do sufficient circumstances mitigate against a death sentence? See TEX. CRIM.CODE art. 37.071 § 2(b). The State presented punishment-phase evidence about Fratta's sexual deviance, his anger about the divorce, and his efforts to find a hitman to kill his wife. Witnesses described Fratta as controlling, possessive, and domineering with women. A clinical psychologist described the "sick" relationship Fratta wanted with his wife and characterized Fratta as oppositional, evasive, and narcissistic. Testing suggested that Fratta had an intractable degree of paranoia and psychopathy, resulting in psychopathic deviant behavior and a practice of lying with no conscience. The expert diagnosed Fratta with antisocial personality disorder. Fratta's children testified about the effect their mother's murder had on them, and the callous, emotionless demeanor their father showed toward them. Farah's boyfriend at the time of the murder also provided testimony about Fratta's angry and heartless actions both before and after the murder. Farah's parents testified about losing their daughter and the effect it had on Fratta's children.

The defense called Dr. Rhan Bailey, a psychiatrist who tested Fratta and found significant brain impairment in his psychosocial development, particularly considering how Fratta viewed his normal sexual development. Dr. Bailey also found some evidence of paranoid disorder, and possibly delusional thought, which could be evidence of mild brain impairment. Dr. Bailey testified that events in his childhood, such as his father's death and his mother suffering a miscarriage, affected his growth and development. Dr. Bailey also found evidence of paranoia, a mood disorder, and low self-esteem countered by bravado. Dr. Bailey observed that Fratta had suicidal thoughts in the past. After reviewing his medical and prison records, Dr. Bailey opined that Fratta would not pose a future societal threat.

A custodian of prison records described reports indicating that Fratta was not a danger to himself or others. A defense investigator testified that she could not find many friends and relatives to testify in Fratta's behalf. She provided the defense with college transcripts and records from when Fratta worked in the prison garment factory. A prison employee testified that Fratta did not commit any serious disciplinary infractions while working in prison. Fratta's prison records included only one infraction, which contained a notation that it should be erased because of a due process violation. A friend testified about how Fratta's father suffered a heart attack when they were hunting and Fratta had to carry him out of the woods. He testified that Fratta once saved the life of a small child.

In rebuttal, the State presented the substance of Fratta's jail phone calls while awaiting trial, which lead to the introduction of a contraband nude photo he obtained during the course of his second trial. A detective who interviewed Fratta after Farah's death described him as flippant and not having the demeanor of someone who mourned the loss of his children's mother.

The jury answered Texas' special issue questions in a manner requiring the imposition of a death sentence.

Fratta again...