Frazier v. United States

MAURICE FRAZIER, Movant, v. UNITED STATES OF AMERICA, Respondent.

Cv. No. 12-2886-STA-dkv

Cr. No. 06-20430-STA

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION

Dated: December 20, 2013

ORDER TO MODIFY THE DOCKET

ORDER DENYING MOTION PURSUANT TO 28 U.S.C. § 2255

ORDER DENYING CERTIFICATE OF APPEALABILITY

ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH

AND

ORDER DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

Before the Court is the Motion Pursuant to 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody (the "§ 2255 Motion") filed by Movant Maurice Frazier, Bureau of Prisons register number 21406-076, an inmate at the United States Penitentiary — Victorville in Adelanto, California. (ECF No. 1.) For the reasons stated below, the Court DENIES Movant's § 2255 motion.

I. BACKGROUND

A. Criminal Case Number 06-20430

On November 28, 2006, a federal grand jury returned a single-count indictment charging Frazier, a convicted felon, withpossession of a Lorcin, Model L25, .25 caliber pistol on or about March 14, 2006, in violation of 18 U.S.C. § 922(g).¹ On December 18, 2008, the grand jury returned an eleven-count superseding indictment against Frazier.² The first count charged that, on or about February 11, 2006, Frazier robbed A&R Bar-B-Que, in violation of 18 U.S.C. § 1951. The third count charged that, on or about February 15, 2006, Frazier robbed a Family Dollar, in violation of 18 U.S.C. § 1951. The fifth count charged that, on or about February 19, 2006, Frazier robbed a McDonald's, in violation of 18 U.S.C. § 1951. The seventh count charged that, on or about March 3, 2006, Frazier robbed a Sonic, in violation of 18 U.S.C. § 1951. The ninth count charged that, on or about March 13, 2006, Frazier robbed the Memphis Plaza Hotel, in violation of 18 U.S.C. § 1951. Counts 2, 4, 6, 8, and 10 charged Frazier with using and carrying a firearm during and in relation to the robberies charged in Counts 1, 3, 5, 7, and 9, respectively, in violation of 18 U.S.C. § 924(c). The eleventh count realleged Count 1 of the original Indictment.

The factual basis for these charges is summarized in the presentence report ("PSR"):

Counts One and Two

5. At approximately 8:00 p.m. on February 11,2006, a male, later identified as Maurice Frazier, entered A&R Barbecue at 3530 Ramill in Memphis, Tennessee, ordered dinner, and left. A few minutes later, Frazier re-entered the store, armed with a black semi-automatic handgun. Frazier pointed the handgun at the employees and demanded money. After collecting money from the registers, Frazier asked where the safe was. A store employee took Frazier to the safe in the back office. Frazier then left the store with the hand safe. He took approximately $3,000 in cash.

6. Alice Warner, one of the store employees, stated that Frazier entered the store, grabbed her by the arm, and told her that he wanted her to open the safe. She told Frazier that she had no way to get the money from the safe. According to Warner, another employee, Tiesh Withers, put money from the registers into a sack and handed it [to] Warner to give to Frazier. Another employee, Roy Sullivan, came out of the kitchen and asked Frazier not to shoot. Roy retrieved the safe from the back of the restaurant and gave it to Frazier. Warner indicated that Frazier then picked up the safe, told them to get on the floor, and left.

7. Withers indicated that she was leaning on the register when she saw Frazier walking Warner back to where she was. Withers noticed that Frazier had a gun and realized that they were being robbed. According to Withers, Frazier kept asking for the safe, but Withers told him that they did not have one. Withers indicated that Frazier's voice changed and he started getting meaner. He was constantly asking about the safe. Withers stated that she went to the register and put the money into a bag for Frazier. She handed the bag to Warner while Frazier was still asking about the safe. According to Withers, Sullivan walked up from the back of the store and saw that they were being robbed. Sullivant then went to the back of the store and got the safe. Frazier picked the safe up off the floor, told them to get on the floor, and left. Withers identified Frazier in a photo line-up.

8. While being interviewed about an unrelated incident, Frazier gave a statement of admission about committing this robbery. He indicated that he was armed with an automatic .380 caliber pistol. According toFrazier, he took about $1,500 to $1,600 during the robbery. Frazier stated that he participated in the robbery "to get money for a place to stay and buy food and stuff." He also indicated that he was sorry that "these things happened to the victims and that this whole thing turned out the way it did."

Counts Three and Four

9. At approximately 8:16 p.m. on February 15, 2006, Family Dollar Store, located at 3514 Raleigh Millington Road in Memphis, was robbed. Frazier admitted committing this robbery while being interviewed about a similar incident. According to store employee, Emmanuel Fowler, he was sweeping outside the store when Frazier asked if they still had Valentine's Day cards available. Fowler directed him inside the store. According to Fowler, seconds later, he saw Frazier pointing a gun at Martin Hurley, the manager. Fowler then ran for help. Hurley advised that Frazier demanded that he get onto the floor after the money was removed out of the register. Frazier then forced Hurley to take him to the safe. When Hurley advised that he had to get the code out of his cell phone, Frazier moved him into the office. While still holding Hurley at gunpoint, Frazier had Hurley place the deposit bag and the till tray into a Family Dollar bag. Frazier then took Hurley's phone and left on foot with an unknown amount of money.

10. During an interview with investigators, Frazier advised that he participated in the robbery because he "needed cash." He estimated that he received "maybe a hundred and something dollars."

Counts Five and Six

11. McDonald's, located at 2200 Covington Pike in Memphis, was robbed by Frazier at approximately 10:30 p.m. on February 19, 2006. According to Tabitha Stegall, the manager on duty, Frazier placed a food order at the restaurant's counter. After receiving his food order from Devin Hines, Frazier walked back outside. Stegall stated that they thought Frazier was going outside, so they all went to the back. Stegall advised that Frazier walked back to where they were, pointed a gun at them, and told them to give him themoney. Stegall told Frazier that she was pregnant and not to shoot her. According to Stegall, Frazier responded that he would not hurt anyone and that they should do as they were told. Frazier then ordered Stegall and another employee to lie on the ground while he made Hines get the money from the drive-through register. When he asked for the surveillance tape, Stegall told him that she did not have the key. Frazier tried to break the plexiglass case that held the VCR, but it would not break. Stegall indicated that Frazier told them all to go into the back of the restaurant. He shot at the surveillance monitor twice and ran out of the store.

12. During an interview with investigators in connection with a similar incident, Frazier admitted committing this robbery. Frazier advised that he participated in the robbery because he "needed cash." He estimated that he received approximately $800 from the robbery.

13. Two spent .380 caliber casings were recovered from the scene.

Counts Seven and Eight

14. Sonic Drive-In, located at 3332 Overton Crossing in Memphis, was robbed by Frazier on March 3, 2006. Frazier admitted committing this robbery while being interviewed about a similar incident. According to Kendra Grayson, the manager at Sonic, Frazier entered the store through the rear door that was opened while a truck was being unloaded. According to Grayson, Frazier came up to her, put the gun in her side, and told her to give him the money. Grayson froze, and Frazier walked past her and grabbed one of the carhops, who had money in her apron. When Frazier told the carhop to give him her money, she pushed him. However, when the carhop saw Frazier's gun, she ran. Grayson then told the other employees to run. According to Grayson, Frazier shot out two surveillance monitors. Grayson indicated that another employee came out of the walk-in when he heard the shots. Frazier grabbed him and told him to give him the money because "the bitches" would not give the money to him. The employee gave Frazier the money that was in a drawer but not the money that was in the safe. Frazier then ran out theback door. Grayson stated that Frazier took $451 in cash.

15. Another employee, Dioulasso Bobo, indicated that Frazier entered the store through the back door and put a gun to an employee's stomach. According to Bobo, the employee pushed Frazier back because they thought it was a joke. Bobo walked out the front door with an order. When she realized that Frazier was robbing them, she told a customer to call the police.

16. During an interview with investigators, Frazier advised that he participated in the robbery because he "needed cash."

Counts Nine and Ten

17. At approximately 12:45 a.m. on March 13, 2006, Frazier robbed Memphis Plaza Hotel, located at 6101 Shelby Oaks in Memphis. Frazier was developed as a suspect from a previous incident and gave a statement admitting his participation in this robbery. Zachary Morrow advised that he was at the desk in the back office when Frazier jumped the counter. Morrow slammed the door in Frazier's face; however, Frazier kept pushing the door open, so Morrow let the door go. Frazier then entered the back office with a gun and demanded money. Morrow took Frazier to the front, where Morrow opened the drawer that contained the money. When Frazier demanded a bag, Morrow went to the back and retrieved a garbage bag. Frazier told Morrow to put the money

...