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Frazier v. Davis

United States District Court, N.D. Texas, Fort Worth Division

July 6, 2017

LIONELL FRAZIER JR., Petitioner,
v.
LORIE DAVIS, Director, [1]Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

          OPINION AND ORDER

          REED O'CONNOR UNITED STATES DISTRICT JUDGE.

         Before the Court is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by petitioner, Lionell Frazier Jr., a state prisoner confined in the Correctional Institutions Division of the Texas Department of Criminal Justice (TDCJ), against Lorie Davis, Director of TDCJ, Respondent. After considering the pleadings and relief sought by Petitioner, the Court has concluded that the petition should be denied.

         I. BACKGROUND

         In September 2012 Petitioner was indicted in Tarrant County, Texas, Case No. 1290856, on one count of aggravated assault on a public servant with a deadly weapon, a motor vehicle. Adm. R., Clerk's R. 5, ECF No. 15-14. The indictment alleged that on or about July 24, 2012, Petitioner did-

intentionally or knowingly threaten imminent bodily injury to J. Thomas, a public servant, to-wit: an employee or officer of government, namely a police officer for the City of Arlington, while J. Thomas was lawfully discharging an official duty and the defendant knew that J. Thomas was a public servant, and the defendant did use or exhibit a deadly weapon during the commission of the assault, to-wit: a motor vehicle, that in the manner of its use or intended use was capable [of] causing death or serious bodily injury.

Id.

         The testimony at trial reflected that Arlington police officers John Thomas and Kellen Garrett responded to a domestic disturbance call in the 900 hundred block of Timber Oaks Drive in Arlington, Texas, on July 24, 2012. Id., Reporter's R., vol. 6, 13-14, ECF No. 15-10. The officers arrived in separate squad cars and parked on the opposite side of the street from the caller's house. Id. at 15. The officers crossed the street, and as officer Garrett contacted the caller, officer Thomas heard a “loud revving noise and a vehicle traveling westbound on the street at a high rate of speed.” Id. Officer Thomas, who was in uniform, motioned for the vehicle to pull over, which it did, and he identified himself to Petitioner, the lone occupant of the vehicle. Petitioner told the officer that everything was fine and that he was just trying to pick up his girlfriend or wife. Id. at 20. Officer Thomas then noticed a green substance he believed to be marijuana in Petitioner's lap and asked Petitioner what it was. Id. The officer testified that at that point, Petitioner “immediately looked down as if he didn't realize it was in his lap. And he became very fidgety and very nervous, and he just kept saying, ‘It's nothing, man. You can let me go.'” Id. at 20-21. The officer then reached into the vehicle to grab the marijuana. Id. at 20. As the officer did so, Petitioner “floored” the accelerator. Id. at 21. Officer Thomas was knocked off balance and clung to the windowsill as he was dragged some 40 feet. During that time, he was able to pull himself farther into the vehicle, turn the ignition off, and throw the keys in the floor board. Id. at 22-23. After the vehicle stopped, officer Thomas pulled Petitioner out of the vehicle and the two “scuffled.” Id. at 24-25. Petitioner broke free and ran. Id. at 26. Officer Thomas attempted to tase Petitioner as he was fleeing, to no avail. Id. at 27. Officer Garrett then deployed his taser. Id. at 28, 54-56. Petitioner continued to resist but was eventually handcuffed and arrested after the fourth tase. Id. at 29, 54-56. After his arrest, Petitioner told officer Garrett that “he messed up his life, ” that he did not mean to do it, asked that they not charge him with one of the offenses, and became angry when the officer refused to agree to lessen or discuss the case with him. Id. at 57-58. Petitioner also told a police investigator at the police station that he knew he had messed up. Id. at 100. Both Petitioner and officer Thomas were examined by emergency medical personnel at the scene, and officer Thomas was transported to the Medical Center of Arlington for further observation. Id. at 54-56, 85. He suffered a hyperextended left leg injury and was prescribed pain medication. Id. at 30. The officer testified that during the incident Petitioner did not verbally threaten him but that he feared he would be run over by Petitioner's vehicle or struck by another vehicle and feared for his life. Id. at 44-45, 47.

         Based on the evidence, the jury found Petitioner guilty of the charged offense, and after a hearing on punishment, found the repeat-offender notice in the indictment true and assessed Petitioner's punishment at 30 years' confinement. Id., Clerk's R. 61, ECF No. 15-14.[2] Thereafter, Petitioner appealed his conviction, but the Second District Court of Appeals of Texas affirmed the trial court's judgment. Id., Mem. Op. 7, ECF No. 15-4. Petitioner did not file a petition for discretionary review in the Texas Court of Criminal Appeals but did file a postconviction state habeas-corpus application challenging his conviction, which the Texas Court of Criminal Appeals denied without written order on the findings of the trial court. Id., WR-83, 604-01, Action Taken, ECF No. 15-17.

         II. ISSUES

         In this federal petition, Petitioner raises five grounds for relief:

(1) Trial counsel was ineffective by failing to (a) build a defense; (b) object to the perjured testimony of officer Thomas; (c) point out the inconsistencies in officer Thomas's testimony to the jury; and (d) file a motion for acquittal after learning of officer Thomas's perjured testimony;
(2) Trial counsel was ineffective by failing to object and correct the prosecutor's misconduct in knowingly using officer Thomas's perjured testimony;
(3) The evidence is insufficient to support his conviction;
(4) The state engaged in malicious prosecution because there was no evidence to ...

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