Frazier v. Harrison

• Citation: 537 F. Supp. 17
• Decision Date: 18 November 1981
• Docket Number: No. CIV-2-81-189.,CIV-2-81-189.
• Parties: Dewey Scott FRAZIER, Petitioner, v. Jimmy HARRISON, etc., et al., Respondents.
• Court: U.S. District Court — Eastern District of Tennessee

537 F. Supp. 17

Dewey Scott FRAZIER, Petitioner, v. Jimmy HARRISON, etc., et al., Respondents.

No. CIV-2-81-189.

United States District Court, E. D. Tennessee, Northeastern Division.

September 10, 1981.

On Motion to Dismiss November 18, 1981.

Dewey Scott Frazier, pro se.

John C. Zimmermann, Asst. Atty. Gen., Nashville, Tenn., for respondents.

MEMORANDUM OPINION AND ORDER

NEESE, District Judge.

The petitioner Mr. Dewey Scott Frazier, a person in the custody of the respondent-warden pursuant to the judgment of December 3, 1976 of the Criminal Court of Sullivan County, Tennessee, applied to this Court for the federal writ of habeas corpus, claiming he is in such custody in violation of the Constitution, Fifth, Sixth and Fourteenth Amendments. 28 U.S.C. § 2254(a). He claims he exhausted his available remedies in the courts of Tennessee, by presenting the questions he seeks to present to this Court in Frazier v. State, Ct.Cr.App.Tenn. (1977), 566 S.W.2d 545. 28 U.S.C. § 2254(b).

Of the multiple grounds urged by the applicant for relief, two appear to implicate the federal Constitution: Mr. Frazier claims that he was deprived of due process of law because he did not have the benefit in his criminal trial of a panel of impartial indifferent jurors to try him because of news-accounts of his crime in the public media pretrial, Irvin v. Dowd (1961), 366 U.S. 717, 722, 81 S.Ct. 1639, 16422, 6 L.Ed.2d 751; and, he claims he was denied his enjoyment of the right to have compulsory process for obtaining a witness in his favor, Constitution, Sixth Amendment. The right and duty of a federal district judge in a federal habeas corpus proceeding extend "* * * only to the consideration of federal constitutional questions. * * *" Gemmel v. Buckhoe, C.A. 6th (1966), 358 F.2d 338, 3413, certiorari denied (1966), 385 U.S. 962, 87 S.Ct. 402, 17 L.Ed.2d 306, rehearing denied (1967), 385 U.S. 1021, 87 S.Ct. 723, 17 L.Ed.2d 561.

The Court notices judicially from its records that this is the 3d successive petition for relief by way of federal habeas corpus which Mr. Frazier has requested this Court to entertain. See: Frazier v. Lane, D.C. Tenn. (1977), 446 F.Supp. 19, appeal dismissed C.A. 6th, Dewey Scott Frazier, petitioner-appellant, v. Stoney Lane, Warden, etc., et al., respondents, order of December 29, 1977 in no. 77-1443; and Frazier v. Lane, D.C.Tenn. (1978), 479 F.Supp. 841, judgment affirmed C.A. 6th (1978), 611 F.2d 372 (table), certiorari denied (1980), 444 U.S. 1084, 100 S.Ct. 1042, 62 L.Ed.2d 770. In Frazier I the grounds for relief alleged related to the enhancement of the applicant's punishment to life-imprisonment. These same grounds were reiterated in Frazier II, and, in addition, the applicant claimed a denial of his guaranteed right of the assistance of counsel, Constitution, Sixth Amendment, in regard to one of the prior convictions utilized to enhance his punishment. Frazier II was adjudicated on its merits; the applicant was denied release from custody in both.

"* * * When * * * after a hearing on the merits of an issue of law, a person in custody pursuant to the judgment of a State court has been denied by a * * * judge of the United States release from custody * * * on an application for a writ of habeas corpus, a subsequent application for a writ of habeas corpus in behalf of such person need not be entertained by a * * * judge of the United States unless the judge is satisfied that the applicant has not on the earlier application deliberately withheld the newly asserted ground or otherwise abused the writ." 28 U.S.C. § 2244(b). "* * * A * * * successive petition may be dismissed * * *, if new or different grounds for relief are alleged, if the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ." Rule 9, 28 U.S.C. fol. § 2254.

"* * * `If a prisoner deliberately withholds one of two grounds for federal collateral relief at the time of filing his first application ... he may be deemed to have waived his right to a hearing on a second application presenting the withheld ground.' * * * However, * * * it is clear that such conduct will be an abuse of the writ only if due to `inexcusable neglect,' * * or because of `"an intentional relinquishment or abandonment of a known right or privilege."' * * * `A suitor's conduct in relation to the matter at hand may disentitle him to the relief he seeks.' * * * citations omitted." Paprskar v. Estelle, C.A. 5th (1980), 612 F.2d 1003, 1006, citing inter alia Sanders v. United States (1963), 373 U.S. 1, 17, 18, 83 S.Ct. 1068, 107816, 10 L.Ed.2d 148. Upon the respondent rests the burden of pleading an abuse of the writ. Ibid., 612 F.2d at 1006, n. 12, again citing Sanders, 373 U.S. at 10-11, 83 S.Ct. at 1074-75.

It not appearing plainly at this time from the face of the applicant's petition and the exhibits annexed thereto that Mr. Frazier is not entitled to relief in this Court, the respondent hereby is ORDERED to file an answer or other pleading within 43 days herefrom and show any cause why the writ should not be granted Mr. Frazier. Rule 4, 28 U.S.C. fol. § 2254. The slow movement of the mail, judicially noticed, constitutes good reason for the allowance of the additional time. 28 U.S.C. § 2243; Rule 81(a)(2), Federal Rules of Civil Procedure.

ON MOTION TO DISMISS

It appearing that the petitioner Mr. Frazier was transferred to the Brushy Mountain, Tennessee state penitentiary, the title hereof hereby is AMENDED so as to reflect that the respondent is: "Warden, Brushy Mountain state penitentiary."

The (former) respondent moved for a dismissal of the petition of the applicant on the ground that the applicant abused the federal writ of habeas corpus, by failing to assert in prior applications to this Court the new and different grounds he now presents. Rule 9(b), 28 U.S.C. fol. § 2254. The applicant moved for a summary judgment, Rule 56(a), Federal Rules of Civil Procedure, on the ground that he is entitled to a judgment, granting him the writ, as a matter of law.

Concomitantly with the foregoing motion, the applicant responded to the respondent's motion to dismiss his application. Therein, he claims he has not abused the requested writ with reference to the judgment of conviction imposed upon him by the Criminal Court of Sullivan County, Tennessee on December 3, 1976, and that he was unaware he had available to him his presently-urged grounds for relief when he made earlier applications to this Court for the writ.

Mr. Frazier exhibited with his petition herein a copy of the memorandum of authorities and assignments of error filed on his behalf by his attorney in the Court of Criminal Appeals of Tennessee after his conviction on December 3, 1976. His instant claim, that he was denied his federal constitutional right to secure a witness in his behalf, appears to this Court's satisfaction to have been incorporated in the 3d assignment of error listed in that brief.¹ His other instant claim, that he was deprived of his federal right to due process of law because he did not have the benefit of impartial jurors at his state trial because of pretrial publicity in the media, appears to this Court's satisfaction to have been incorporated in the 4th assignment of error listed in that brief.²

With reference to the first-mentioned of those errors, the Court of Criminal Appeals of Tennessee, per Judge Tatum, stated:

* * * * * *

The defendant, in Assignment Three, says that the Court erred in not requiring Echol Head, an alleged accomplice, to testify. The defendant called Mr. Head to the witness stand. He refused to answer any questions, stating that he desired to avail himself of his Fifth Amendment right not to testify. He was at the time awaiting trial for the same robbery of the bank. The Trial Judge did not require him to testify. While the action of the Trial Judge in effect denied the defendant of his right to compulsory process as guaranteed under * * * the Sixth Amendment to the Constitution, the Trial Judge ruled properly. When there is a conflict in a defendant's right of compulsory process and a witness's right against self-incrimination, the right against self-incrimination is the stronger and paramount right. United States v. Johnson, 488 F.2d 1206 (1st Cir. 1973); United States v. Wyler, 487 F.2d 170 (2d Cir. 1973); United States v. Beye, 445 F.2d 1037 (9th Cir. 1971); Holsen v. United States, 392 F.2d 292 (5th Cir. 1968). This assignment is overruled.

* * * * * *

Frazier v. State, Tenn.Cr.App. (1977), 566 S.W.2d 545, 55111, 12, certiorari denied by Supreme Court of Tennessee (1978). With respect to the second-mentioned of those errors, Judge Tatum wrote:

* * * * * *

In the fourth assignment of error, the defendant complains of the Trial Court's refusal to grant his motion for a change of venue. In support of his motion, he testified on his own behalf and introduced as exhibits, several newspaper articles from a local newspaper. He also testified that there were numerous accounts of the crime over other news media. No evidence was offered to the effect that the defendant could not receive a fair trial in Sullivan County. More than one-half of the jurors accepted had read or heard nothing about the case. None of them had formed any opinion, and all stated they could base their verdict on the law and the evidence.

The mere exposure of jurors to newspaper publicity is not constitutional error. Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975); Swain v. State, 219 Tenn. 145, 407 S.W.2d 452 (1966). The question of change of venue is one within the discretion of the Trial Court. Miller v. State, 520 S.W.2d 729, (Tenn.1975); Lang v. State, 3 Tenn. Cr.App. 108, 457 S.W.2d 882 (1970). We do not find that the Trial Judge abused his discretion and this assignment is overruled.

* * * * * *

Ibid., 566 S.W.2d at 550. There was disposition by that Court of 12 assignments of...