Frazier v. Jenkins

• Decision Date: 27 October 2014
• Docket Number: No. 11–4262.,11–4262.
• Citation: 770 F.3d 485
• Parties: James FRAZIER, Petitioner–Appellant, v. Charlotte JENKINS, Warden, Respondent–Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

770 F.3d 485

James FRAZIER, Petitioner–Appellant

v.Charlotte JENKINS, Warden, Respondent–Appellee.

No. 11–4262.

United States Court of Appeals, Sixth Circuit.

Argued: Nov. 18, 2013.

Decided and Filed: Oct. 27, 2014.

Rehearing En Banc Denied Dec. 18, 2014.

ARGUED:David L. Doughten, Cleveland, Ohio, for Appellant. Brenda S. Leikala, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee. ON BRIEF:David L. Doughten, Cleveland, Ohio, John B. Gibbons, Cleveland, Ohio, for Appellant. Brenda S. Leikala, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee.

Before: MOORE, GIBBONS, and SUTTON, Circuit Judges.

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. Virginia, 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 twice: 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 (“WAIS–III”), 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. Smalldon 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 actions 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. Gregory Forgac—a court-appointed clinical psychologist for the state—also met with Frazier for two hours and fifteen minutes. Id. at 1092 (Forgac Report). Dr. Forgac found Frazier to be “attentive,” capable of “express[ing] himself in a clear and effective manner,” and able to “maintain[ ] adequate eye contact.” Id. at 1093. In his report, Dr. Forgac noted that Frazier had stated that he “couldn't learn when [he] went to school. Couldn't get it right.” Id. at 1094 (internal quotation marks omitted). Like Dr. Smalldon, Dr. Forgac administered the WAIS—III test. Frazier received a Verbal IQ score of 81, a Performance IQ score of 73, and a Full Scale IQ score of 75. Id. at 1095–96. Dr. Forgac admitted a “95% confidence level” in the scores. Id. at 1096. Based on these scores and Frazier's ability to use the bus system and appear “neat and clean,” Dr. Forgac found Frazier not to be mentally retarded. Id.

On the basis of Dr. Forgac's report and discussions with Dr. Forgac and Dr. Smalldon,³ Frazier's counsel withdrew the motion for a determination of mental capacity. See J.A. Vol. 3 at 1447–51 (May 3, 2005 Tr.). The court granted defense counsel's request and admitted Dr. Forgac's report into evidence. Id. at 1450:8–13. The following week, the state-trial-court judge had enough worries to review Ohio's test for mental retardation, as stated in State v. Lott, 97 Ohio St.3d 303, 779 N.E.2d 1011 (2002), with defense counsel and to question counsel and Frazier on the record. Counsel stated that his decision to withdraw the motion was based upon both psychologists finding (1) that Frazier had an IQ above 70; (2) that the Lott presumption against a finding of mental retardation could not be rebutted based on Frazier's “functional adaptation”; and (3) that the psychologists' findings would be useful at the mitigation phase. J.A. Vol. 4 at 1512–13 (May 9, 2005 Tr.). The trial court then engaged in a colloquy with Frazier during which the defendant agreed to the withdrawal of the motion. Id. at 1513–14. At this time, Frazier also rejected a plea agreement with the state in which he would plead guilty to a three-judge panel and the state would tell the panel that it was not seeking the death...