United States v. Frazier

UNITED STATES OF AMERICA, Plaintiff, v. JASON E. FRAZIER, Defendant.

CRIMINAL ACTION No. 09-20152-01-KHV

United States District Court, D. Kansas

December 23, 2022

MEMORANDUM AND ORDER

KATHRYN H. VRATIL UNITED STATES DISTRICT JUDGE

A jury convicted defendant on charges of kidnapping, carrying a firearm in relation to a crime of violence, possessing with intent to distribute five grams or more of cocaine base and being a felon in possession of a firearm. On September 16 2020, after the Court vacated defendant's original sentence of life in prison, the Court resentenced him to 262 months in prison. Neither party appealed. This matter is before the Court on defendant's pro se Motion To Vacate, Set Aside, Or Correct A Sentence By A Person In Federal Custody (Doc. #180) filed August 1, 2022. Defendant asserts three claims for relief: (1) under Borden v. United States, 141 S.Ct. 1817 (2021), his prior conviction for aggravated assault does not qualify as a crime of violence under the career offender enhancement of the Sentencing Guidelines, U.S.S.G. § 4B1.1(a); (2) under United States v. Taylor, 142 S.Ct. 2015 (2022), his prior conviction for attempted aggravated battery is not a crime of violence under the career offender enhancement; and (3) counsel provided ineffective assistance because they did not file an appeal after defendant notified him about Borden.^[1] For reasons stated below, the Court overrules defendant's motion as to his two claims based on Borden but appoints counsel for defendant and directs the parties to submit further briefing on his remaining claim based on Taylor.

Factual Background

On November 18, 2009, a grand jury indicted defendant on charges of (1) kidnapping in violation of 18 U.S.C. § 1201, (2) carrying a firearm in relation to a crime of violence in violation of 18 U.S.C. § 924(c), (3) possessing with intent to distribute five grams or more of cocaine base in violation of 21 U.S.C. § 841(a)(1) and (4) being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). Indictment (Doc. #8). On July 2, 2010, a jury found defendant guilty on all counts. Verdict (Doc. #74). On October 13, 2010, the Court sentenced defendant to a controlling term of life in prison. Judgment In A Criminal Case (Doc. #93) at 2. The Tenth Circuit affirmed and the United States Supreme Court denied defendant's petition for a writ of certiorari. See United States v. Frazier, 429 Fed.Appx. 730 (10th Cir. 2011), cert. denied, 565 U.S. 1171 (2012).

On March 2, 2020, in light of the Supreme Court decisions in Johnson v. United States, 135 S.Ct. 2251 (2015) and United States v. Davis, 139 S.Ct. 2319 (2019), the Court vacated defendant's conviction for carrying a firearm in relation to a crime of violence. See Order (Doc. #154). On resentencing, the Court adopted the Second Amended Presentence Investigation Report (“Amended PSR”) (Doc. #165) filed September 9, 2020. The Amended PSR determined that for purposes of criminal history, defendant qualified as a career offender under Section 4B1.1(a) of the Sentencing Guidelines because he had prior convictions for aggravated assault and attempted aggravated battery. Amended PSR (Doc. #165), ¶¶ 43, 59, 60. Based on a total offense level 34 and a criminal history category VI, defendant's guideline range was 262 to 327 months. The Court sentenced defendant to 262 months in prison.^[2] Neither party appealed.

Kirk C. Redmond and Ann Sagan of the Office of the Federal Public Defender represented defendant at resentencing. Defendant asserts that at some point after June 20, 2021, he emailed counsel, asking whether the Supreme Court decision in Borden provided a colorable claim to appeal his sentence. Defendant claims that counsel did not reply.

On August 1, 2022, defendant filed the instant motion to vacate his sentence under 28 U.S.C. § 2255. Defendant asserts that (1) under the Supreme Court decision in Borden, his prior conviction for aggravated assault does not qualify as a crime of violence under Section 4B1.1 of the Guidelines; (2) under the Supreme Court decision in Taylor, his prior conviction for attempted aggravated battery is not a crime of violence under Section 4B1.1; and (3) counsel provided ineffective assistance because they did not file an appeal after defendant notified them about Borden.

Legal Standards

The standard of review of Section 2255 petitions is quite stringent. The Court presumes that the proceedings which led to defendant's convictions were correct. See Klein v. United States, 880 F.2d 250, 253 (10th Cir. 1989). To prevail, defendant must establish either (1) the district court lacked jurisdiction to enter the convictions and sentence, (2) the district court imposed a sentence outside of the statutory limits, (3) a constitutional error occurred and “had substantial and injurious effect or influence in determining the jury's verdict” or defendant's sentence, Brecht v. Abrahamson, 507 U.S. 619, 638 (1993), or (4) a non-constitutional error of law or an error of fact occurred that constituted a fundamental defect which inherently resulted in a complete miscarriage of justice, i.e. that rendered the entire proceeding irregular and invalid. United States v. Fields, 949 F.3d 1240, 1246 (10th Cir. 2019) (citing United States v. Addonizio, 442 U.S. 178, 185-86 (1979)).

Analysis

All of defendant's claims challenge the Court's determination that defendant qualified as a career offender under Section 4B1.1(a) of the Guidelines because he had prior convictions for aggravated assault and attempted aggravated battery. Amended PSR (Doc. #165), ¶¶ 43, 59, 60. Under the Guidelines, a defendant is a “career offender” if (1) he was at least 18 years old at the time he committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) he has at least two prior felony convictions of either a “crime of violence” or a controlled substance offense. U.S.S.G. § 4B1.1(a). The Guidelines define a “crime of violence” as any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that “(1) has as an element the use attempted use, or threatened use of physical force against the person of another, or (2) is murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion, or the use or unlawful possession of a firearm described in 26 U.S.C. § 5845(a) or explosive material as defined in 18 U.S.C. § 841(c).” U.S.S.G. § 4B1.2(a).

I. Relief Under Borden (Claim 1)

Defendant claims that under the Supreme Court decision in Borden, his prior conviction for aggravated assault does not qualify as a crime of violence. The government argues that Borden does not apply to defendant's aggravated assault conviction because under Kansas law, that conviction required proof of intentional conduct.

In Borden, the Supreme Court held that an offense with a mens rea of recklessness does not qualify as a “violent felony” under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B), because it does not require the active employment of force against another person. 141 S.Ct. at 1834. After Borden, the Tenth Circuit held that reckless aggravated battery is not a “crime of violence” as defined in Section 4B1.2(a) of the Guidelines. United States v. Ash, 7 F.4th 962, 963 (10th Cir. 2021).

Defendant argues that under Borden, his conviction in 1998 for aggravated assault under Kansas law is not a crime of violence. See Amended PSR, ¶ 59. The Amended Information in that case charged that defendant “intentionally” placed another person in “reasonable apprehension of immediate bodily harm, committed with a deadly weapon, in violation of K.S.A. § 21-3410.” Id. In 1998, K.S.A. § 21-3410 defined aggravated assault as “intentionally placing another person in reasonable apprehension of immediate bodily harm” committed (a) with a deadly weapon, (b) while disguised in any manner designed to conceal identity or (c) with intent to commit any felony. K.S.A. § 21-3410 (1995). Because defendant's conviction for aggravated assault with a deadly weapon required proof of intentional conduct, Borden does not afford him relief.^[3] The Court therefore overrules defendant's claim that under Borden, his conviction for aggravated assault does not qualify as a crime of violence.

II. Ineffective Assistance of Counsel - Failure To Appeal (Claim 3)

Defendant claims that counsel provided ineffective assistance because they did not file an appeal after defendant notified them about Borden. Because Borden does not impact the classification of defendant's aggravated assault conviction as a crime of violence, the Court liberally construes his claim to assert more broadly that counsel provided ineffective assistance in failing to appeal his career offender enhancement when defendant sent counsel an email about Borden.

To establish ineffective assistance of counsel, defendant must show that (1) the performance of counsel was deficient and (2) a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694 (1984).

Preliminarily defendant cannot establish ineffective assistance of counsel because he has not shown that he had a right to counsel when he sent the email about Borden to former counsel. A defendant has no constitutional right to counsel for post-conviction consultation after the deadline to file an appeal has expired. See Coronado v. Ward, 517 F.3d 1212, 1218 (10th Cir. 2008) (no constitutional right to counsel beyond direct appeal of criminal conviction). Neither party appealed the amended judgment...