Frasier v. Warden of SCI-Coal Township

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

LEEON ANTONIO FRASIER, No. 4:22-CV-01116

Petitioner, (Chief Judge Brann)

v.

WARDEN SCI COAL TOWNSHIP,

Respondent.

MEMORANDUM OPINION

MARCH 14, 2024

Petitioner Leeon Antonio Frasier initiated this action by filing a pro se

petition for a writ of habeas corpus under 28 U.S.C. § 2254. Frasier, however,

failed to raise his claims in state court and can no longer do so, so they are

procedurally defaulted. Because Frasier cannot establish cause and prejudice to

excuse his default, the Court must dismiss his Section 2254 petition.

I. BACKGROUND AND PROCEDURAL HISTORY

In April 2019, Frasier was convicted—following a bench trial—of

aggravated assault, strangulation, and theft by unlawful taking.1 These convictions

stem from Frasier’s June 29,2 2018 physical assault of his romantic partner Jessica

1 See Commonwealth v. Frasier, No. 1453 MDA 2019, 2020 WL 1490937, at *1 (Pa. Super. Ct.

Mar. 27, 2020) (nonprecedential).

2 The Court observes that although the Pennsylvania Superior Court identifies the date of the

incident as June 19, 2018, see id. (citing “N.T. Trial, 4/22/19, at 9-10”), both the trial testimony

Oren, with whom he was having a “long-term extra marital relationship.”3 The

June 29 assault occurred outside of a hotel in Harrisburg, Pennsylvania.4 Frasier

did not dispute that he assaulted Oren, but he maintained that he was not guilty of

the more serious charges alleged.5

At trial, Oren was a “resistant” witness, asserting that she did not want to

press charges against Frasier or testify against him and claiming that she could not

remember many of the events that had transpired ten months earlier.6 The trial

court observed in its written opinion that “evidence suggested that Oren was

terrified of retaliation by Frasier.”7 Oren, however, had given a recorded statement

to police on July 12, 2018, less than two weeks after the incident, and that audio

recording was admitted as evidence at Frasier’s bench trial.8 After finding Frasier

guilty, the court sentenced him to 54 to 108 months for aggravated assault, 54 to

108 months for strangulation (to run concurrently with the aggravated assault

sentence), and 12 to 24 months on the theft conviction (also to run concurrently

with the aggravated assault sentence).9

2018. See Doc. 29-6, Apr. 22, 2019 Trial Tr. 9:24-10:4 [hereinafter “Trial Tr. __:__”]; Doc.

29-1 at 2 (Commonwealth v. Frasier, CP-22-CR-0005489-2018 (Ct. Com. Pl. Dauphin Cnty.)).

3 Id.

4 See id.

5 See id., at *2.

6 See id., at *1.

7 See id., at *2.

8 See id., at *1, 2, 4.

9 See id., at *2.

Frasier appealed, challenging the sufficiency of the evidence as to all three

convictions.10 The Superior Court of Pennsylvania affirmed the judgment of

sentence for the aggravated assault and strangulation convictions, but reversed and

vacated the theft conviction.11 The panel further determined that remand for

resentencing was unnecessary because the 12- to 24-month sentence for theft was

imposed to run concurrently with the aggravated assault sentence, so vacating the

judgment of sentence for the theft charge “d[id] not affect the overall sentencing

scheme.”12 The Supreme Court of Pennsylvania denied Frasier’s petition for

allowance of appeal on August 19, 2020.13

Frasier then filed a pro se petition under Pennsylvania’s Post Conviction

Relief Act (PCRA).14 PCRA counsel was appointed but subsequently moved to

withdraw by filing a Turner/Finley15 “no merit” letter.16 The PCRA court granted

counsel’s motion to withdraw and ultimately denied Frasier’s PCRA petition.17

Frasier appealed pro se, raising three arguments sounding in PCRA court

error: (1) the PCRA court erred when it failed to consider Frasier’s claim that trial

10 See id.

11 See id., at *2-5.

12 Id., at *5 (citing Commonwealth v. Lomax, 8 A.3d 1264, 1268-69 (Pa. Super. Ct. 2010)).

13 Commonwealth v. Frasier, 237 A.3d 984, No. 215 MAL 2020 (Pa. Aug. 19, 2020) (table) (per

curiam).

14 42 PA. CONS. STAT. § 9541 et seq.

15 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d

213 (Pa. Super. Ct. 1988) (en banc).

16 See Commonwealth v. Frasier, No. 885 MDA 2021, 2022 WL 367358, at *2 (Pa. Super. Ct.

Feb. 8, 2022) (nonprecedential).

17 See id.

counsel was ineffective for failing to request the trial court’s recusal; (2) the PCRA

court erred when it failed to consider Frasier’s claim that the trial court abused its

discretion by not recusing itself due to a conflict of interest; and (3) the PCRA

court erred when it failed to consider Frasier’s claim that his due process rights

were violated when trial counsel failed to file a pretrial motion to obtain

information regarding the victim’s drug abuse and mental health.18

The Superior Court construed Frasier’s appeal as raising two claims of

ineffective assistance of counsel—one involving failure to seek the trial judge’s

recusal and another concerning failure to obtain records of the victim’s purported

prior drug abuse and mental health issues.19 The panel rejected both claims on the

merits and affirmed the PCRA court’s dismissal of his petition.20 It does not

appear that Frasier filed a petition for allowance of appeal with the Pennsylvania

Supreme Court.

Frasier timely filed his Section 2254 petition in this Court in June 2022.21

He also included an excessively lengthy 101-page memorandum of law.22 The

Commonwealth filed a cursory response that spanned only five pages and included

just two arguments: first, that Frasier procedurally defaulted his first three claims;

18 See id., at *3.

19 See id., at *4-6.

20 See id.

21 See generally Doc. 1.

22 See generally Doc. 2.

and second, that the state courts did not make an unreasonable determination as to

Frasier’s fourth claim regarding ineffective assistance of counsel.23

The Court reviewed the parties’ submissions and found them both to be

problematic.24 Frasier’s “sprawling, 101-page” memorandum of law was far

longer than permitted by the Local Rules of Court and Frasier had not sought prior

leave of Court to file such a lengthy brief.25 The overlong brief also asserted

different claims than those raised in his Section 2254 petition, causing confusion

for both Respondent and the Court.26 Respondent’s response, for its part, was

conclusory and insufficient, failing to even consider Frasier’s arguments regarding

excusal of procedural default.27 It also did not address the additional claims raised

in Frasier’s overlong brief. Accordingly, the Court ordered the parties to “try

again.”28

Frasier filed his “revised memorandum of law” in support of his Section

2254 petition (hereinafter “supplemental memorandum”), raising seven claims for

relief.29 Respondent filed a supplemental answer,30 and Frasier filed a traverse.31

Frasier’s habeas petition, therefore, is ripe for disposition.

23 See generally Doc. 18.

24 See Doc. 24.

25 See id. at 2.

26 See id.

27 See id.

28 See id. at 3.

29 See generally Doc. 25.

30 Doc. 29.

31 Doc. 35.

II. STANDARD OF REVIEW

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)32

mandates that petitioners demonstrate that they have “exhausted the remedies

available in the courts of the State” before seeking federal habeas relief.33 An

exhausted claim is one that has been “fairly presented” to the state courts “by

invoking one complete round of the State’s established appellate review process,”

and which has been adjudicated on the merits.34

If a state prisoner has not fairly presented a claim to the state courts “but

state law clearly forecloses review, exhaustion is excused, but the doctrine of

procedural default may come into play.”35 Generally, if a prisoner has

procedurally defaulted on a claim by failing to raise it in state-court proceedings, a

federal habeas court will not review the merits of the claim, even one that

implicates constitutional concerns.36

A few limited exceptions to this rule exist. One exception is that “[a]

prisoner may obtain federal review of a defaulted claim by showing cause for the

default and prejudice from a violation of federal law.”37 “Cause for a procedural

32 28 U.S.C. §§ 2241-2254.

33 Id. § 2254(b)(1)(A).

34 Carpenter v. Vaughn, 296 F.3d 138, 146 (3d Cir. 2002) (quoting O’Sullivan v. Boerckel, 526

U.S. 838, 844-45 (1999)); see also Johnson v. Williams, 568 U.S. 289, 302 (2013).

35 Carpenter, 296 F.3d at 146 (citations omitted).

36 Martinez v. Ryan, 566 U.S. 1, 9 (2012) (citing Coleman v. Thompson, 501 U.S. 722, 747-48

(1991); Wainwright v. Sykes, 433 U.S. 72, 84-85 (1977)).

37 Id. at 10 (citing Coleman, 501 U.S. at 750).

default exists where something external to the petitioner, something that cannot

fairly be attributed to him[,] . . . impeded [his] efforts to comply with the State’s

procedural rule.”38 To establish prejudice, a petitioner must show not merely that

there were errors that created a possibility of prejudice, but that they “worked to

his actual and substantial disadvantage, infecting his entire trial with error of

constitutional dimensions.”39 If cause and prejudice are established, the federal

court reviews the claim de novo “because the state court did not consider the claim

on the merits.”40

Another rare exception that will excuse a procedural default is if the

petitioner can show that “failure to consider the claim will result in a fundamental

‘miscarriage of justice.’”41 To satisfy the “fundamental miscarriage of justice”

exception, a petitioner typically will have to show actual innocence.42

Finally, as pertinent to the instant petition, the Supreme Court of the United

States carved out a “narrow exception” to procedural default in Martinez v. Ryan,

566 U.S. 1 (2010). Specifically, Martinez holds that “[i]nadequate assistance of

counsel at initial-review collateral proceedings may establish cause for a prisoner’s

38 Maples v. Thomas, 565 U.S. 266, 280 (2012) (alterations in original) (citations and internal

quotation marks omitted).

39 Holland v. Horn, 519 F.3d 107, 112 (3d Cir. 2008) (quoting United States v. Frady, 456 U.S.

152, 170 (1982)).

40 Bey v. Superintendent Greene SCI, 856 F.3d 230, 236 (3d Cir. 2017), cert. denied sub nom.

Gilmore v. Bey, 138 S. Ct. 740 (2018) (mem.) (citation omitted).

41 Carpenter, 296 F.3d at 146 (quoting Coleman, 501 U.S. at 750).

42 Leyva v. Williams, 504 F.3d 357, 366 (3d Cir. 2007) (citation omitted).

procedural default of a claim of ineffective assistance at trial.”43 Martinez also

recognizes that a finding of cause and prejudice to excuse procedural default “does

not entitle the prisoner to habeas relief. It merely allows a federal court to consider

the merits of a claim that otherwise would have been procedurally defaulted.”44

To successfully invoke the Martinez exception, a petitioner must satisfy two

requirements: (1) the petitioner’s underlying, otherwise defaulted claim of

ineffective assistance of trial counsel must be “substantial,” meaning that it has

“some merit”; and (2) the petitioner had “no counsel” or “ineffective” counsel

during the initial phase of state collateral review.45 Whether a claim is

“substantial” under Martinez is “analogous to the substantiality requirement for a

certificate of appealability.”46 “Thus, the question for Martinez purposes[] is

merely whether ‘reasonable jurists could debate’ that [a petitioner’s ineffective-

assistance-of-trial-counsel] claim has merit, or whether the claim is ‘adequate to

deserve encouragement to proceed further.’”47

But a substantial underlying claim alone is not sufficient to excuse a

petitioner’s procedural default.48 The petitioner must also demonstrate that post-

43 Martinez, 566 U.S. at 9.

44 Id. at 17.

45 Id. at 14; Workman v. Superintendent Albion SCI, 915 F.3d 928, 937-38 (3d Cir. 2019).

46 Cox v. Horn, 757 F.3d 113, 119 (3d Cir. 2014) (citing Martinez, 566 U.S. at 14).

47 Preston v. Superintendent Graterford SCI, 902 F.3d 365, 377 (3d Cir. 2018) (quoting Miller-

El v. Cockrell, 537 U.S. 322, 336 (2003) (quoting Slack v. McDaniel, 529 U.S. 473, 483

(2000))).

48 See Workman, 915 F.3d at 938.

conviction counsel’s ineffectiveness caused the default by establishing that post-

conviction counsel’s performance in initial-review collateral proceedings was

deficient under the first prong of the Strickland v. Washington standard.49 That

initial prong requires a petitioner to show that counsel’s representation fell below

an objective level of reasonableness based on prevailing professional norms.50 In

determining whether counsel has satisfied the objective standard of reasonableness,

courts must be highly deferential toward counsel’s conduct.51 There is a strong

presumption that counsel’s performance falls within the wide range of reasonable

professional assistance.52 Only a “rare claim” of ineffectiveness of counsel should

succeed “under the properly deferential standard to be applied in scrutinizing

counsel’s performance.”53

III. DISCUSSION

Frasier appears to concede that he procedurally defaulted all the grounds for

relief he raises in his Section 2254 petition.54 Frasier’s original petition, initial

memorandum of law, and supplemental memorandum assert seven claims of

ineffective assistance of trial counsel and one claim of cumulative prejudice and

49 See id. at 937-38 (referencing Strickland v. Washington, 466 U.S. 668 (1984)); see also

Preston, 902 F.3d at 376.

50 Strickland, 466 U.S. at 687-88.

51 Id. at 689.

52 See United States v. Gray, 878 F.2d 702, 710 (3d Cir. 1989).

53 Id. at 711 (citing Strickland, 466 U.S. at 689-90).

54 See Doc. 2 at 12-13; Doc. 25 at 6, 31-33. The Court cites to the CM/ECF electronic pagination

rather than the page numbers provided by the parties.

contend that he can excuse his procedural default of these claims under the

Martinez v. Ryan exception.55 The Court disagrees, and will discuss each of

Frasier’s defaulted claims in turn.

A. Failure to Move to Suppress Recorded Statement

In his first and most prominent claim, Frasier contends that his trial counsel

was ineffective for failing to move in limine to suppress Oren’s July 12, 2018

audio statement that was recorded two weeks after the incident and admitted at

trial. Frasier expends an extensive amount of effort attacking all manner of

collateral issues regarding Oren’s recorded statement but very little time providing

any legal basis for why the statement should have been suppressed or was

inadmissible. For example, Frasier argues that the statement (when reduced to

writing) was not signed or verified by Oren,56 was inaccurate,57 was improperly

influenced or coerced by the police detective taking the statement,58 and was the

possible product of an undisclosed deal with the prosecution.59 While Frasier

proffers a great deal of speculation about why Oren’s prior statement did not match

55 See Doc. 2 at 12-14; Doc. 25 at 6-7, 31, 33. Although Frasier sets forth six claims at the

opening of his supplemental memorandum, (see Doc. 25 at 6-7), it actually contains seven

claims. Moreover, his initial memorandum of law asserts eight total claims. The Court will

address all eight claims for relief.

56 Doc. 25 at 8, 18.

57 Id. at 8-9.

58 Id. at 9-11, 13-14, 15, 17.

59 Id. at 12-13. To the extent that Frasier may be attempting to assert a claim regarding failure to

disclose impeachment evidence under Brady v. Maryland, 373 U.S. 83 (1963), any such claim

is procedurally defaulted and Frasier has not alleged, let alone established, cause or prejudice

to excuse that default.

her trial testimony or was unreliable, none of this speculation is supported with

facts or evidence.

Consequently, the primary problem with Frasier’s arguments is that none of

them identify a legal basis for pretrial suppression of Oren’s recorded statement or

its inadmissibility at trial. Initially, there would have been no basis to move in

limine to suppress the statement before trial because Oren was going to testify at

trial and was the key witness for the prosecution. The admissibility of Oren’s prior

recorded statement was thus contingent on her trial testimony and could not be

categorically excluded (or admitted, for that matter) pretrial.

When Oren’s trial testimony dramatically changed from her prior recorded

statement, however, that recorded statement became admissible as both

impeachment60 and substantive evidence. Pennsylvania Rule of Evidence 803.1

provides that, for a prior inconsistent statement of a declarant-witness, “a verbatim

contemporaneous electronic recording of an oral statement” is “not excluded by the

rule against hearsay if the declarant testifies and is subject to cross-examination

about the prior statement.”61 It also provides that, for “a declarant-witness who

testifies to an inability to remember the subject matter of the statement” in a

manner that the court finds lacking credibility, “a verbatim contemporaneous

electronic recording of an oral statement” is “not excluded by the rule against

60 See PA. R. EVID. 613(a).

61 PA. R. EVID. 803.1(1)(C).

hearsay if the declarant testifies and is subject to cross-examination about the prior

statement.”62

Thus, inasmuch as Frasier argues that Oren’s trial testimony materially

differed from her recorded statement or indicated that she could not remember that

statement—points that Frasier repeatedly and strenuously asserts throughout his

petition—that recorded statement is plainly admissible pursuant to Rules

803.1(1)(C) and 803.1(4)(C) as substantive evidence, not just impeachment

evidence.63 Rule 803.1 likewise undercuts Frasier’s argument that the written

version of the statement needed to be “signed” or “otherwise verified,”64 because

no such signature or verification is required for a verbatim contemporaneous

electronic recording of an oral statement.65

Frasier himself identifies binding Pennsylvania authority indicating that the

recorded statement could be used as substantive evidence in his trial.66 Oren did

not refuse to testify or to answer questions at trial, a fact which Frasier admits,67 so

his circumstances are materially different from those in which Pennsylvania courts

have found a Confrontation-Clause issue with admission of a prior inconsistent

62 PA. R. EVID. 803.1(4)(C).

63 See PA. R. EVID. 803.1(1), Comment (citing Commonwealth v. Brady 507 A.2d 66 (Pa. 1986);

Commonwealth v. Lively, 610 A.2d 7 (Pa. 1992)).

64 Doc. 25 at 8, 17, 18, 32.

65 See PA. R. EVID. 803.1(1)(C), (4)(C).

66 See Doc. 25 at 7-8 (citing Commonwealth v. Carmody, 799 A.2d 143, 148 (Pa. Super. Ct.

2002)).

67 See id. at 11.

statement.68 Finally, none of Frasier’s speculative arguments establish that Oren’s

prior statement, which was given less than two weeks after the assault and was

made to police outside of Frasier’s intimidating presence,69 was unreliable or

coerced.

Frasier has not demonstrated how Oren’s recorded statement could have

been suppressed before trial or was somehow inadmissible at trial. Hence, he has

not shown that his trial counsel’s performance was deficient or that he was

prejudiced by that performance. Frasier has therefore failed to establish that his

underlying ineffective-assistance-of-trial-counsel claim has “some merit.” He

additionally fails to establish that initial-review PCRA counsel was ineffective for

failing to raise this claim, as counsel cannot be deemed ineffective for failing to

assert a meritless claim.70 The Martinez exception does not apply to this claim and

thus it is procedurally defaulted and unreviewable.

B. Failure to Properly Defend Against Aggravated Assault Charge

In Frasier’s second claim, he alleges that his trial attorney failed to properly

defend against the aggravated assault charge. Although Frasier also attempts to

68 See Carmody, 799 A.2d at 148 n.3 (distinguishing Commonwealth v. Romero, 722 A.2d 1014,

1017 (Pa. 1999)).

69 See Trial Tr. 60:2-8 (“What [Oren] had indicated to [the investigating detective] was she was

extremely scared of Mr. Frasier, that he has people as she put it and she felt that testifying

against him could be dangerous for her and . . . she was legitimately scared of him.”); see also

Frasier, 2020 WL 1490937, at *2, 3 (noting that trial court found that “Oren was terrified of

retaliation by Frasier”).

70 Preston, 902 F.3d at 379.

assert that his counsel on direct appeal was constitutionally ineffective for similar

reasons,71 the Supreme Court of the United States has explicitly held that the

Martinez exception only applies to defaulted claims of trial counsel ineffectiveness

and does not extend to defaulted claims of ineffective assistance of appellate

counsel.72

Frasier was convicted of aggravated assault pursuant to 18 PA. CONS. STAT.

§ 2702(a)(1), which provides that a person is guilty of that offense if he “attempts

to cause serious bodily injury to another, or causes such injury intentionally,

knowingly or recklessly under circumstances manifesting extreme indifference to

the value of human life[.]”73 As noted by the Pennsylvania Superior Court, the

Commonwealth conceded at trial that Oren did not sustain “serious bodily

injury,”74 so his conviction fell under the “attempt” portion of this statute.75

The thrust of Frasier’s claim is that trial counsel should have obtained and

reviewed hotel video surveillance footage of the incident, which Frasier baldly

contends would have corroborated his version of events. This contention,

however, is based on nothing more than self-serving speculation about what the

surveillance cameras recorded and would have shown. Frasier has not provided

71 See Doc. 25 at 22-23, 25.

72 Davila v. Davis, 582 U.S. 521, 524-25 (2017).

73 18 PA. CONS. STAT. § 2702(a)(1).

74 See Frasier, 2020 WL 1490937, at *3 & n.3 (citations omitted).

75 See id. (discussing requirements for attempted aggravated assault under Section 2702(a)(1)).

any evidence or factual support that the hotel’s surveillance cameras captured the

assault, much less that the footage depicted what Frasier claims it would. Frasier

merely points to trial testimony from the investigating detective, in which Frasier’s

attorney questioned the detective about the possible existence of hotel video

surveillance. In that exchange, the detective noted that the hotel “does have video

surveillance,” but that he did not review the footage and could not say whether

Frasier and Oren “were . . . captured on it or not.”76

This type of unsupported, conclusory allegation of deficient performance is

insufficient to establish that Frasier’s underlying claim of ineffective assistance of

trial counsel has “some merit.” A general, unsupported claim that a trial attorney

should have taken some action, without any basis for establishing that the

attorney’s acts or omissions prejudiced their client, simply cannot satisfy the

Martinez exception to procedural default.

Frasier also argues that his attorney failed to bring out certain facts at trial

during examination of Oren, “resulting in no record being established to support

[his] version of events.”77 This assertion is belied by the record, which shows that

Oren’s trial testimony indicated—contrary to her recorded statement—that she

“was on drugs on the night” of June 29, 2018, that she could not remember what

76 See Trial Tr. 59:1-17. Frasier alleges, without any evidence, that the investigating detective

viewed the footage and “decided it was of no use to him.” Doc. 25 at 20. This unfounded

speculation is plainly contradicted by the detective’s trial testimony.

77 Doc. 25 at 19.

had transpired that night, and that Frasier hit her in response to her “swinging at

him first” (an assertion that Oren had never previously made).78 In his

supplemental memorandum, Frasier concedes that Oren’s trial testimony “supports

[his] version of events.”79 Additionally, Frasier testified at trial on his own behalf,

providing his version of the June 29 incident.80 The mere fact that the trial judge,

who was also the trier of fact, found Oren’s prior recorded statement to be more

credible than Oren’s or Frasier’s trial testimony does not implicate ineffective

assistance by Frasier’s attorney. It also does not demonstrate that Frasier suffered

any prejudice from his attorney’s allegedly deficient performance.

The Court thus concludes that Frasier’s unsupported speculation regarding

the contents of the hotel surveillance video fails to demonstrate any type of

prejudice. In other words, even if his trial attorney acted unreasonably by failing

to obtain and review the video footage, Frasier has not established how he was

prejudiced by this failure. As such, he has not shown that his underlying

ineffective-assistance-of-trial-counsel claim has “some merit,” nor has he

established that PCRA counsel was ineffective for not raising this claim during

collateral review. The Martinez exception therefore does not apply, so this claim is

also procedurally defaulted and unreviewable.

78 Frasier, 2020 WL 1490937, at *1.

79 Doc. 25 at 24.

80 Frasier, 2020 WL 1490937, at *2.

C. Failure to Properly Defend Against Strangulation Charge

Frasier’s third claim overlaps with his first. He asserts that his trial counsel

was constitutionally deficient because she “presented no defense to refute the

alleged strangulation[.]”81 He argues that, because the only evidence of

strangulation came from Oren’s recorded statement, trial counsel was ineffective

for failing to move to suppress that statement.82

This claim warrants little discussion. First, as fully explained above, Frasier

has not established that his ineffective-assistance claim regarding an evidentiary

challenge to the admissibility of the recorded statement has merit. Second,

contrary to Frasier’s assertion that the only inculpatory evidence of strangulation

came from Oren’s recorded statement, the prosecution introduced corroborating

photographic evidence at trial depicting “bruising and redness around Oren’s neck”

immediately after the assault.83 Moreover, both the trial court and the Superior

Court found sufficient evidence to support the strangulation charge.84

Frasier has simply failed to show that his trial counsel performed deficiently

or that he was prejudiced in any way by this purportedly deficient performance.

Consequently, Frasier has not established that his underlying ineffective-

assistance-of-trial-counsel claim regarding the strangulation charge has some

81 Doc. 25 at 27.

82 Id. at 28, 29.

83 Frasier, 2020 WL 1490937, at *4.

84 See id.

merit, nor has he established that PCRA counsel was ineffective for not raising this

meritless ineffective-assistance claim during collateral review. The Martinez

exception, therefore, does not apply, so this claim too is procedurally defaulted and

unreviewable.

D. Failure to Challenge Oren’s “Ability to Remember”

Frasier’s fourth claim is cursory and meritless. He asserts that trial counsel

was ineffective for failing to investigate and challenge Oren’s “memory during the

audio statement.”85 He maintains that, during trial, Oren testified that “she didn’t

remember the statement occurring” and stated “in excess of 40-45 times that she

didn’t remember one thing or another.”86

Rather than impugn the veracity or reliability of the recorded statement,

Frasier’s argument undercuts Oren’s trial testimony and bolsters the credibility of

her recorded statement. That statement was made less than two weeks after the

incident and outside of Frasier’s presence,87 and it was contemporaneously

recorded. Moreover, unlike Oren’s trial testimony, it did not contain dozens of

statements about her inability to remember details or events.

85 Doc. 25 at 30.

86 Id. Frasier also brings up Oren’s drug addiction, (see id.), but he does not in any way establish

(beyond pure speculation) how this issue would affect the reliability of her recorded statement.

87 See Trial Tr. 60:2-8 (“What [Oren] had indicated to [the investigating detective] was she was

extremely scared of Mr. Frasier, that he has people as she put it and she felt that testifying

against him could be dangerous for her and . . . she was legitimately scared of him.”); see also

Frasier, 2020 WL 1490937, at *2, 3 (noting that trial court found that “Oren was terrified of

retaliation by Frasier”).

Nothing in this portion of Frasier’s initial or supplemental memorandum

shows deficient performance or prejudice, and therefore he has failed to establish

that the underlying ineffective-assistance-of-trial-counsel claim has some merit.

Nor has Frasier established that PCRA counsel was deficient for failing to raise

this meritless ineffective-assistance claim during initial collateral review. The

Martinez exception does not apply, so this claim is procedurally defaulted and

unreviewable as well.

E. Failure to Pause Trial and Claim Self-Defense

In his fifth ground for relief, Frasier contends that his trial attorney was

ineffective for failing to ask for a recess to consult with him about presenting “self-

defense as a basis for innocence” after Oren testified that she swung at him first.88

Frasier posits that Oren’s statement was “an unprovoked response to the

prosecutor” and should have prompted trial counsel to stop the trial, confer with

her client, and, ultimately, change course and argue self-defense.

This claim, too, is meritless. Frasier was convicted for attempted aggravated

assault and strangulation. The sufficiency of the evidence supporting those

convictions was affirmed on appeal. Under 18 PA. CONS. STAT. § 505, “[t]he use

of force upon or toward another person is justifiable when the actor believes that

such force is immediately necessary for the purpose of protecting himself against

88 Doc. 25 at 31.

the use of unlawful force by such other person on the present occasion.”89

Notably, the force used to repel “non-deadly force” must be “reasonable under the

circumstances.”90 As the Supreme Court of Pennsylvania has admonished, non-

deadly force “may be met with force so long as it is only force enough to repel the

attack.”91

Frasier, who weighed 300 pounds,92 was found to have strangled Oren and

to have used force in an attempt to cause Oren “serious bodily injury.”93 Meeting a

“swing” from Oren with such force does not implicate self-defense.94 In no way

could trial counsel be deemed ineffective for failing to raise a self-defense claim

under the facts adduced at trial, as such a claim had practically no chance of

success.

Thus, Frasier has failed to show either deficient performance or prejudice, so

he cannot establish that the underlying ineffective-assistance-of-trial-counsel claim

has some merit. Nor has Frasier established that PCRA counsel was deficient for

failing to raise this meritless ineffective-assistance claim during initial collateral

review. The Martinez exception, therefore, does not apply, so Frasier’s fifth claim

is procedurally defaulted and unreviewable as well.

89 18 PA. CONS. STAT. § 505(a) (emphasis added).

90 Commonwealth v. Presogna, 292 A.2d 476, 477 (Pa. Super. Ct. 1972); see Commonwealth v.

Witherspoon, 730 A.2d 496, 499 (Pa. Super. Ct. 1999).

91 Commonwealth v. Pollino, 467 A.2d 1298, 1301 (Pa. 1983).

92 Frasier, 2020 WL 1490937, at *2.

93 18 PA. CONS. STAT. § 2702(a)(1).

94 See Witherspoon, 730 A.2d at 499.

F. Failure to Assert Trial Court Abuse of Discretion

In his sixth ineffective-assistance claim, Frasier maintains that his trial

attorney was deficient for failing to argue that the trial court abused its discretion

in finding the recorded statement more reliable than Oren’s trial testimony. This

claim is meritless for at least two reasons.

First, as fully explained above, Frasier has not established that there was any

basis for a pretrial or mid-trial challenge to the admissibility of the recorded

statement (an argument he once again raises). When Oren took the stand and

testified in a manner that contradicted her prior recorded statement or indicated

that she could not remember its contents, that statement became admissible as both

impeachment and substantive evidence under the Pennsylvania Rules of

Evidence.95

Second, Frasier’s sub-arguments regarding the need for expert testimony and

hearsay are wholly unpersuasive. Frasier contends that “Judge Lewis was not a

voice expert qualified to determine the quality or sincerity” of Oren’s voice and

therefore should not have relied more on the recorded statement than on Oren’s

trial testimony.96 But no expert testimony is required for the trier of fact to discern

the credibility of a lay witness’s inconsistent statements; that is one of the

95 See PA. R. EVID. 613(a); PA. R. EVID. 803.1(1)(C), PA. R. EVID. 803.1(4)(C).

96 Doc. 25 at 32.

quintessential responsibilities of a factfinder in a criminal trial.97 Frasier also

argues that his trial counsel was ineffective for not challenging the recorded

statement as hearsay but—as fully explained above—that statement was explicitly

excepted from the rule against hearsay under Pennsylvania Rules of Evidence

803.1(1)(C) and (4)(C).

Consequently, Frasier has failed to show either deficient performance or

prejudice, so he cannot establish that the underlying ineffective-assistance-of-trial-

counsel claim has some merit. Nor has Frasier established that initial-review

PCRA counsel was deficient for failing to raise this meritless ineffective-assistance

claim during collateral review. The Martinez exception does not apply, so

Frasier’s sixth claim is procedurally defaulted and unreviewable.

G. Failure to Allege Trial Court Bias

In Frasier’s initial memorandum of law, he included a seventh ineffective-

assistance claim that does not appear in his original Section 2254 petition or his

supplemental memorandum. In this ground for relief, Frasier maintains that his

trial attorney was deficient for “failing to recognize and address the objective bias

of Judge Lewis[.]”98

97 See Commonwealth v. Williams, 854 A.2d 440, 445 (Pa. 2004) (“In criminal proceedings, the

credibility of witnesses and weight of evidence are determinations that lie solely with the trier

of fact. The trier of fact is free to believe all, part, or none of the evidence.” (citations omitted)).

98 Doc. 2 at 64.

At first blush, this claim appears to have been raised and litigated in state

court.99 However, upon closer inspection, the grounds for recusal asserted in

Frasier’s initial memorandum of law are different than those that he argued in state

court.100 Accordingly, this ineffective-assistance claim, like all the others, must be

analyzed under Martinez because it was not fairly presented to the state courts or

adjudicated on the merits.

Frasier contends that the way the trial court interpreted or described the

evidence in its written Rule 1925(a) opinion101 reflects “palpable” personal bias.102

He quibbles with the trial court’s phrasing and language, and again attempts to

question the sufficiency and weight of the evidence and trial counsel’s alleged

failure to argue self-defense. Yet nothing Frasier identifies in this claim comes

close to demonstrating “bias, prejudice[,] or unfairness which raises a substantial

doubt as to the jurist’s ability to preside impartially.”103 Frasier may disagree with

the trial court’s wording or factual findings, but that disagreement does not

establish that the trial court was biased or prejudiced against him.

This final ineffective-assistance claim, like the preceding claims, lacks even

some merit. And initial-review PCRA counsel was not ineffective for failing to

99 See Frasier, 2022 WL 367358, at *3-5 (resolving PCRA claim that trial counsel was

ineffective for failing to seek recusal of trial court).

100 Compare Doc. 2 at 64-69, with Frasier, 2022 WL 367358, at *3-5.

101 See PA. R. APP. P. 1925(a).

102 Doc. 2 at 64-68.

103 Frasier, 2022 WL 367358, at *5 (quoting Commonwealth v. Bonds, 890 A.2d 414, 419 (Pa.

Super. Ct. 2005) (alteration in original)).

raise it. The Martinez exception does not apply, so Frasier’s seventh and final

ineffective-assistance claim is procedurally defaulted and unreviewable.

H. Cumulative Prejudice

In his final ground for relief, Frasier asserts a cumulative prejudice claim

with respect to trial counsel’s performance.104 This claim is more fully developed

in his initial memorandum of law105 and, like his other claims, was procedurally

defaulted.106 To the extent that Frasier attempts to rely once again on the Martinez

exception, he has failed to establish that his cumulative prejudice claim has some

merit for the simple reason that, as he has not established any prejudice for the

individual ineffective-assistance claims, there is no prejudice to aggregate or

cumulate.107 In other words, even assuming for the sake of argument that certain

aspects of his trial counsel’s conduct fell below the constitutional minimum,

Frasier has not demonstrated prejudice stemming from that conduct. With no

104 See Doc. 2 at 81-86; Doc. 25 at 32-33.

105 See Doc. 2 at 81-86.

106 Claims of cumulative prejudice or cumulative error are standalone constitutional claims that

must be raised in state court before they are asserted in a Section 2254 petition. See Collins,

742 F.3d at 541, 543.

107 Cf. United States v. Bailey-Snyder, 923 F.3d 289, 296 (3d Cir. 2019) (“To reverse a conviction

for cumulative error requires more than one error.”); see also United States v. House, 684 F.3d

1173, 1210-11 (11th Cir. 2012) (“[W]here there is no error or only a single error, there can be

no cumulative error[.]” (citation omitted)); United States v. Herrera-Genao, 419 F. App’x 288,

296 (3d Cir. 2011) (nonprecedential) (“Herrera-Genao complains only of the cumulative effect

of the preceding claims; because we have found no error regarding those claims, Herrera-

Genao’s claim of cumulative error also fails.”); United States v. Narducci, 18 F. Supp. 2d 481,

502 (E.D. Pa. 1997) (“As we have discussed, not one of [petitioner]’s ineffective assistance of

counsel claims has merit. Therefore, the cumulative effect of each non-error does not add up

to ineffective assistance of counsel: zero plus zero is still zero.”).

prejudice established for any individual claim, there can be no cumulative

prejudice; “zero plus zero is still zero.”108

IV. CONCLUSION

For the foregoing reasons, the Court will dismiss Frasier’s unexhausted

petition for a writ of habeas corpus under 28 U.S.C. § 2254. The Court likewise

declines to issue a certificate of appealability, as Frasier has failed to make a

substantial showing of the denial of a constitutional right,109 or that “jurists of

reason would find it debatable” whether this Court’s procedural ruling is correct.110

An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann

Matthew W. Brann

Chief United States District Judge

108 Narducci, 18 F. Supp. 2d at 502.

109 28 U.S.C. § 2253(c)(2).

110 Slack v. McDaniel, 529 U.S. 473, 484 (2000).