IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

CLIFTON LASHAWN FRAZIER, )

AIS #00291394, )

Petitioner, )

)

v. ) CIVIL ACTION NO. 14-00488-CG-N

)

LOUIS BOYD, )

Respondent. )

REPORT AND RECOMMENDATION

Petitioner Clifton Lashawn Frazier (“Frazier”), an Alabama prisoner

proceeding pro se and in forma pauperis (see Doc. 13), has filed a Petition for Writ of 

Habeas Corpus under 28 U.S.C. § 2254 (Doc. 7).1 The Respondent, through the 

Office of the Attorney General of the State of Alabama, has timely filed an Answer

(Doc. 16) to the petition, and Frazier has timely filed a reply (Doc. 18) to the 

Answer. 

Frazier’s habeas petition is now ripe for adjudication and, under SD ALA 

Local Rule 72.2(c)(4), has been referred to the undersigned Magistrate Judge for 

 1 Frazier filed his initial habeas corpus petition in the United States District Court for the 

Middle District of Alabama, on that Court’s form. (See Doc. 5). The District Court for the 

Middle District of Alabama subsequently transferred the petition to this Court under 28 

U.S.C. § 2241(d). (See id.). Following transfer, Frazier was ordered to file a new habeas 

petition on this Court’s forms and was informed: “Petitioner's new petition will supersede 

his original petition; therefore, Petitioner shall not rely upon his original petition.” (Doc. 6 

at 1). Frazier timely complied with that order, resulting in the instant operative habeas 

petition (Doc. 7). Accordingly, the claims and issues in Frazier’s initial habeas petition 

(Doc. 5 at 3 – 18) have not been considered by the undersigned. See Rule 2(d) of the Rules 

Governing Section 2254 Cases in the United States District Courts (a § 2254 habeas 

“petition must substantially follow either the form appended to these rules or a form 

prescribed by a local district-court rule. The clerk must make the forms available to 

petitioners without charge.”); SD ALA LR 83.9(d)(1) (“All pleadings filed by persons 

proceeding pro se shall be filed on forms provided by the court, or in a form substantially 

conforming to such forms, unless otherwise ordered by the court.”).

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entry of a recommendation as to the appropriate disposition, in accordance with 28 

U.S.C. § 636(b)(1)(B)-(C) and Rule 8(b) of the Rules Governing Section 2254 Cases 

in the United States District Courts. Upon consideration, and for the reasons 

stated herein, the undersigned RECOMMENDS that Frazier’s habeas petition 

(Doc. 7) be DENIED and that this action be DISMISSED with prejudice.2

Should that recommendation be adopted, the undersigned further RECOMMENDS

that Frazier be found not entitled either to a Certificate of Appealability or to 

proceed in forma pauperis on appeal.

I. Applicable Background

On August 21, 2013, a jury of the Circuit Court of Mobile County, Alabama, 

convicted Frazier at trial of one count of first-degree robbery in violation of Ala. 

Code § 13A-8-41. On September 23, 2013, the circuit court sentenced Frazier to 34 

years’ imprisonment for the conviction. The Alabama Court of Criminal Appeals, 

the last Alabama court to substantively address Frazier’s case, set forth the 

following summary of the evidence adduced at trial:

On the evening of November 20, 2011, an armed, black male entered a 

Family Dollar discount store. The black male was wearing rubber 

gloves and was dressed in a black shirt and black pants with a black tshirt enshrouding his face. The black male pointed his handgun at 

Shamarra Fluker, who was working as a cashier, and demanded 

money. Fluker screamed, which alerted Devonte Yelding, who was 

mopping in the rear of the store. Yelding went to the store's office 

where he telephoned 911 while watching the robbery occur on a closedcircuit television. The black male grabbed the till from the cash 

register, which contained approximately $152, and fled the scene on 

foot.

 2 The undersigned finds that an evidentiary hearing under 28 U.S.C. § 2254(e)(2) and Rule 

8 of the Rules Governing Section 2254 Cases in the United States District Courts is not 

warranted prior to disposing of the petition.

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Officer Ngo of the Mobile Police Department responded to the 

emergency dispatch. Once in the area, Officer Ngo noticed a vehicle 

that was parked beyond a wooded area, which Officer Ngo 

approximated to be 100 yards in depth, in an open lot just north of the 

store. Officer's [sic] Ngo's attention was drawn to the vehicle because 

its headlights turned on and off. Officer Ngo waited for his requested 

assistance before investigating further.

Once Officer Talon Edwards arrived, the two officers approached the 

vehicle. In the back seat, Officer Ngo observed black clothing, which 

matched the clothing described in the robbery. Then, the officers heard 

the rattle of a chain-link fence as though someone was jumping over 

the fence. The officers ran south, the direction of the rattle, where they 

observed a black male, who matched the physical description of the 

robber, running east behind the store. Officer William Tomberlin, who 

was in his patrol vehicle, observed the black male exit the woods and 

run east. Officer Tomberlin shone his spotlight on the black male. The 

black male was dressed in a white t-shirt, his underwear, and socks. 

Officer Tomberlin pursued the black male to the edge of a privacy fence 

where he struck the black male with his patrol vehicle, which 

prevented the black male from scaling the fence. The black male was 

then taken into custody and identified as Frazier. Frazier was 

apprehended approximately eight minutes after Yelding's telephoning 

of 911.

After Frazier was apprehended, Officer Jennifer Wilson recovered 

$6.74 in coins and a cash-register till in an area near the chain-link 

fence. Between the store and the location of the vehicle, Officer Wilson 

recovered two $10 bills and a plastic glove that was ripped near the 

thumb and bore bloodstains near the rip. These items were found 

"basically in a straight line" between the cash-register till and the 

vehicle. DNA testing of the blood-stained glove indicated that Frazier 

was the source of the blood; however, there were no traces of blood 

found on any other evidence. A search of the vehicle yielded four 

rubber gloves, pay stubs in Frazier's name, $251, two black t-shirts, a 

nylon stocking cap, a pair of black pants, a black belt, and a pair of 

black tennis shoes.1 The handgun used during the robbery was never 

recovered.

1 Despite the presence of Frazier's pay stubs, which were found 

in the glove compartment, the vehicle was not registered in his 

name.

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(Doc. 16-5 at 1 - 3 [Ala. Ct. Crim. App. 4/25/2014 Memorandum Opinion, pp. 1-3]

(record citation omitted)).

Frazier appealed his conviction to the Court of Criminal Appeals, raising only 

one issue: “The evidence presented was legally insufficient to support a conviction of 

robbery first degree... The State’s case rested on circumstantial evidence and should 

not be upheld by this Court to establish guilt beyond a reasonable doubt.” (Doc. 16-

3 at 6, 13 [Frazier’s Appellate Brief to Court of Criminal Appeals, p. 2]). The Court 

of Criminal Appeals affirmed Frazier’s conviction by unpublished memorandum 

issued April 25, 2014. (Doc. 16-5). On June 6, 2014, the Court of Criminal Appeals 

overruled Frazier’s application for rehearing (see Doc. 16-7); on July 11, 2014, the 

Alabama Supreme Court denied his petition for a writ of certiorari. (See Doc. 16-9). 

Frazier subsequently filed the present habeas petition challenging his firstdegree robbery conviction.3 

II. Claim for Relief

Frazier’s habeas petition raises a single claim for relief: “The evidence was 

legally insufficient to support a conviction for robbery first degree...All evidence 

that was used against [Frazier] is circumstancial [sic] and hinges on a theory that 

will not stand up to an unbiased point of view.”4 (Doc. 7 at 6). The Respondent does 

not assert any procedural bar to the petition (e.g. failure to exhaust, time-barred)

 3 Because Frazier challenges a conviction and sentence handed down by a state court within 

this judicial district, see 28 U.S.C. § 81(c)(2), this Court has jurisdiction to entertain his 

habeas petition. See 28 U.S.C. § 2241(d).

4 The undersigned abides by the directive that “courts should construe a habeas petition 

filed pro se more liberally than one drawn up by an attorney.” E.g., Gunn v. Newsome, 881 

F.2d 949, 961 (11th Cir. 1989).

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but argues that Frazier’s lone claim is meritless and that his petition is due to be 

denied. (See Doc. 16).

III. Analysis

A. Standard for Habeas Review 

Because Frazier’s habeas petition was filed after April 24, 1996, it is subject 

to application of the Anti-Terrorism and Effective Death Penalty Act of 1996, Pub. 

L. No. 104-132, 110 Stat. 1214 (“AEDPA”). E.g., Pope v. Sec'y for Dep't of Corr., 680 

F.3d 1271, 1281 (11th Cir. 2012), cert. denied, 133 S. Ct. 1625 (2013). Under 

AEDPA, “a federal court may grant habeas relief only when a state court’s decision 

on the merits was ‘contrary to, or involved an unreasonable application of, clearly 

established Federal law, as determined by’ decisions from th[e United States 

Supreme] Court, or was ‘based on an unreasonable determination of the facts.’ ” 

Woods v. Donald, -- U.S. --, 135 S. Ct. 1372, 1376 (2015) (per curiam) (quoting 28 

U.S.C. § 2254(d)). “AEDPA erects a formidable barrier to federal habeas relief for 

prisoners whose claims have been adjudicated in state court. AEDPA requires a 

state prisoner to show that the state court’s ruling on the claim being presented in 

federal court was so lacking in justification that there was an error beyond any 

possibility for fairminded disagreement. If this standard is difficult to meet—and it 

is—that is because it was meant to be. [Federal courts] will not lightly conclude 

that a State’s criminal justice system has experienced the extreme malfunction for 

which federal habeas relief is the remedy.” Burt v. Titlow, 134 S. Ct. 10, 16 (2013) 

(internal citations and quotations omitted). See also Woods, 135 S. Ct. at 1376 

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(“AEDPA's standard is intentionally ‘ “ ‘ difficult to meet. ’ ” ’ ” (quoting White v. 

Woodall, 572 U.S. ––––, ––––, 134 S. Ct. 1697, 1702, 188 L. Ed. 2d 698 (2014) 

(quoting Metrish v. Lancaster, 569 U.S. ––––, ––––, 133 S. Ct. 1781, 1786, 185 L. 

Ed. 2d 988 (2013)))). The United States Supreme Court recently re-emphasized the 

extent of AEDPA’s “formidable barrier,” stating:

We have explained that “ ‘clearly established Federal law’ for purposes 

of § 2254(d)(1) includes only the holdings, as opposed to the dicta, of 

this Court's decisions.” White, 572 U.S., at ––––, 134 S. Ct., at 1702 

(some internal quotation marks omitted). “And an ‘unreasonable 

application of’ those holdings must be objectively unreasonable, not 

merely wrong; even clear error will not suffice.” Id., at ––––, 134 S. Ct., 

at 1702 (same). To satisfy this high bar, a habeas petitioner is 

required to “show that the state court's ruling on the claim being 

presented in federal court was so lacking in justification that there was 

an error well understood and comprehended in existing law beyond 

any possibility for fairminded disagreement.” Harrington v. Richter,

562 U.S. 86, 103, 131 S. Ct. 770, 178 L. Ed. 2d 624 (2011).

Adherence to these principles serves important interests of federalism 

and comity. AEDPA's requirements reflect a “presumption that state 

courts know and follow the law.” Woodford v. Visciotti, 537 U.S. 19, 24, 

123 S. Ct. 357, 154 L. Ed. 2d 279 (2002) (per curiam). When reviewing 

state criminal convictions on collateral review, federal judges are 

required to afford state courts due respect by overturning their 

decisions only when there could be no reasonable dispute that they 

were wrong. Federal habeas review thus exists as “a guard against 

extreme malfunctions in the state criminal justice systems, not a 

substitute for ordinary error correction through appeal.” Harrington, 

supra, at 102–103, 131 S. Ct. 770 (internal quotation marks omitted).

Woods, 135 S. Ct. at 1376.

The Court of Appeals for the Eleventh Circuit has set forth the following 

framework for evaluating § 2254 habeas petitions under AEDPA:

. . . [O]ur review of []Alabama courts' decisions are limited by the terms 

of 28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective 

Death Penalty Act (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 

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(1996). See 28 U.S.C. § 2254; Williams v. Taylor, 529 U.S. 362, 402-03, 

120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000). Under AEDPA, we accord a 

presumption of correctness to a state court's factual findings. § 

2254(e)(1) (“[A] determination of a factual issue made by a State court 

shall be presumed to be correct. The applicant shall have the burden of 

rebutting the presumption of correctness by clear and convincing 

evidence.”). We therefore grant habeas relief to a petitioner challenging 

a state court's factual findings only in those cases where the state 

court's decision “was based on an unreasonable determination of the 

facts in light of the evidence presented in the State court proceeding.” § 

2254(d)(2). See Wiggins v. Smith, 539 U.S. 510, 528-29, 123 S. Ct. 2527, 

156 L. Ed. 2d 471 (2003).

AEDPA similarly constrains our review of legal questions decided on 

the merits in state court. Under the statute, we cannot grant habeas 

relief “with respect to any claim that was adjudicated on the merits in 

State court proceedings” unless:

[T]he adjudication of the claim-

(1) resulted in a decision that was contrary to, or involved 

an unreasonable application of, clearly established 

Federal law, as determined by the Supreme Court of the 

United States; or

(2) resulted in a decision that was based on an 

unreasonable determination of the facts in light of the 

evidence presented in the State court proceeding.

§ 2254(d). The Supreme Court has further explained the requirements 

of § 2254(d) as follows:

Under the “contrary to” clause, a federal habeas court may grant 

the writ if the state court arrives at a conclusion opposite to that 

reached by this Court on a question of law or if the state court 

decides a case differently than this Court has on a set of 

materially indistinguishable facts. Under the “unreasonable 

application” clause, a federal habeas court may grant the writ if 

the state court identifies the correct governing legal principle 

from this Court's decisions but unreasonably applies that 

principle to the facts of the prisoner's case.

Williams, 529 U.S. at 412-13, 120 S. Ct. 1495. When, however, a claim 

is properly presented to the state court, but the state court does not 

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adjudicate it on the merits, we review de novo. Cone v. Bell, --- U.S. ----, 

129 S. Ct. 1769, 1784, 173 L. Ed. 2d 701 (2009).

Mason v. Allen, 605 F.3d 1114, 1118-19 (11th Cir. 2010) (per curiam) (footnote 

omitted). 

Under this framework, the undersigned will now address Frazier’s claim for 

habeas relief. Because the Alabama Supreme Court denied Frye’s petition for writ 

of certiorari without explanation, this Court looks to the reasoning of the Court of 

Criminal Appeals in its memorandum opinion (Doc. 16-5) in addressing Frye’s 

claim. See Powell v. Allen, 602 F.3d 1263, 1268 n.2 (11th Cir. 2010) (per curiam) 

(“When the last state court rendering judgment affirms without explanation, 

[federal courts] presume that it rests on the reasons given in the last reasoned 

decision.” (citing Ylst v. Nunnemaker, 501 U.S. 797, 803-05 (1991); Sweet v. Sec., 

Dep't of Corrections, 467 F.3d 1311, 1316-17 (11th Cir. 2006))).

B. Sufficiency of the Evidence

Due process [under the Fourteenth Amendment of the United States 

Constitution] requires a state to prove each element of the offense 

beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307, 316, 99 

S. Ct. 2781, 2787, 61 L. Ed. 2d 560 (1979). On federal habeas corpus 

review of a state conviction, ‘the relevant question is whether, after 

viewing the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the 

crime beyond a reasonable doubt.’ Id. at 319, 99 S. Ct. at 2789 

(emphasis in original).

Bishop v. Kelso, 914 F.2d 1468, 1470 (11th Cir. 1990).

Jackson claims face a high bar in federal habeas proceedings because 

they are subject to two layers of judicial deference. First, on direct 

appeal, “it is the responsibility of the jury—not the court—to decide 

what conclusions should be drawn from evidence admitted at trial. A 

reviewing court may set aside the jury's verdict on the ground of 

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insufficient evidence only if no rational trier of fact could have agreed 

with the jury.” Cavazos v. Smith, 565 U.S. 1, ––––, 132 S. Ct. 2, 4, 181 

L. Ed. 2d 311 (2011) (per curiam). And second, on habeas review, “a 

federal court may not overturn a state court decision rejecting a 

sufficiency of the evidence challenge simply because the federal court 

disagrees with the state court. The federal court instead may do so 

only if the state court decision was ‘objectively unreasonable.’ ” Ibid.

(quoting Renico v. Lett, 559 U.S. 766, ––––, 130 S. Ct. 1855, 1862, 176 

L. Ed. 2d 678 (2010)).

Coleman v. Johnson, 132 S. Ct. 2060, 2062 (2012) (per curiam), reh'g denied, 133 S. 

Ct. 74 (2012). 

“ ‘[T]he only question under Jackson is whether [the jury's] finding was so 

insupportable as to fall below the threshold of bare rationality,’ and the state court's 

determination that it was not ‘in turn is entitled to considerable deference under 

AEDPA.’ ” Preston v. Sec'y, Fla. Dep't of Corr., 785 F.3d 449, 463 (11th Cir. 2015)

(quoting Coleman, 132 S. Ct. at 2065). “Under Jackson, federal courts must look to 

state law for ‘the substantive elements of the criminal offense,’ 443 U.S., at 324, 

n.16, 99 S. Ct. 2781, but the minimum amount of evidence that the Due Process 

Clause requires to prove the offense is purely a matter of federal law.” Coleman, 

132 S. Ct. at 2064.5

 5

In the past, [the Eleventh Circuit] ha[s] indicated that

[o]nly in a case where the failure to meet a higher state burden of 

proof raises independent constitutional concerns—for example, a 

violation of due process through the arbitrary or discriminatory failure 

to apply a state procedural rule—would a federal court on collateral 

review examine the evidence to determine whether the state had met 

its self-imposed burden.

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As the Alabama Court of Criminal Appeals stated in affirming Frazier’s 

conviction:

“A person commits the crime of robbery in the first degree if he violates 

Section 13A-8-43 and he [is] armed with a deadly weapon or dangerous 

instrument.” § 13A-8-41(a)(1), Ala. Code 1975. “A person [violates 

Section 13A-8-43] if in the course of committing a theft he [t]hreatens 

the imminent use of force against the person of the owner or any 

person present with intent to compel acquiescence to the taking of or 

escaping with the property.” § 13A-8-43(a)(2), Ala. Code 1975.

(Doc. 16-5 at 4).

In finding the evidence at trial sufficient to convict Frazier of that offense, 

the Court of Criminal Appeals wrote:

The State presented evidence that a man matching Frazier's general 

physical description committed an armed robbery at a Family Dollar 

discount store by taking a cash-register till containing money while 

armed with a handgun. The jury was provided with still frames of the 

robbery from the security footage; although Frazier obscured his face 

during the robbery, the jury was able to view Frazier's general physical 

characteristics.

Within minutes of the robbery, Officer Ngo spotted a vehicle in a lot 

immediately north of the store. The vehicle, which was connected to 

Frazier through the presence of his pay stubs, contained clothing that 

matched the clothes worn by Frazier during the robbery, including the 

black t-shirt apparently worn over his face, and gloves that appeared 

to be similar to the gloves used during the robbery. Two $10 bills and a 

plastic glove that bore Frazier's bloodstains were later found roughly 

in a line between the cash-register till and the vehicle.

The rattle of a nearby chain-link fence indicated that Frazier was 

moving away from the officers who were standing near the vehicle. The 

officers pursued Frazier and, upon reaching the chain-link fence, saw 

 

Bishop v. Kelso, 914 F.2d 1468, 1473 (11th Cir.1990) (footnote omitted). 

[Frazier] has not attempted to make a showing that the state's failure was in 

some way arbitrary or discriminatory...

Preston, 785 F.3d at 463 n.11.

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Frazier running away. Frazier continued to flee after Officer 

Tomberlin shone his spotlight on Frazier and pursued him in his patrol 

vehicle. Frazier did not stop fleeing until he was struck by Officer 

Tomberlin's patrol vehicle.

Frazier's apparel or lack thereof made his fleeing from officers more 

incriminating than usual. Frazier was shoeless during his flight, and 

he was dressed in a white t-shirt, his underwear, and socks. The 

absence of pants and shoes suggests that Frazier was not caught in the 

midst of an evening jog in late November, but rather that Frazier had 

attempted to alter his appearance by removing the clothes he had been 

wearing during the robbery. The presence in the vehicle of clothes 

matching those worn during the robbery bolsters that inference.

(Id. at 4 – 5 (citation omitted)).

Because the Alabama state courts adjudicated Frazier’s “sufficiency of the 

evidence” claim on the merits, in order to show entitlement to habeas relief, Frazier 

must show either that the decision was contrary to, or involved an unreasonable 

application of, clearly established federal law, or that it was based on an 

unreasonable determination of the facts. Frazier has failed to satisfy this burden.

First, Frazier’s quibble that all evidence supporting his conviction was 

“circumstantial” bears no consideration on habeas review. Certainly, under 

Alabama law, “ ‘ “[a] conviction based solely on circumstantial evidence can be 

sustained only if the jury could have reasonably found that the State’s evidence 

excluded every reasonable hypothesis except that of the defendant’s guilt.” ’ ” (Doc. 

16-5 at 4 (quoting Gibbs v. State, 695 So. 2d 649, 654 (Ala. Crim. App. 1996) 

(quoting Ex parte Clark, 591 So. 2d 23, 25 (Ala. 1991))). “[H]owever, the [Alabama]

rule and the federal rule are significantly different. Under Jackson, the prosecution 

does not have ‘an affirmative duty to rule out every hypothesis except that of guilt 

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beyond a reasonable doubt.’ ” Preston, 785 F.3d at 463 (quoting Jackson, 443 U.S. 

at 326). “ ‘When the record reflects facts that support conflicting inferences, there is 

a presumption that the jury resolved those conflicts in favor of the prosecution and 

against the defendant.’ ” Id. (quoting Johnson v. Alabama, 256 F.3d 1156, 1172 

(11th Cir. 2001)). “[Alabama]’s circumstantial evidence rule, therefore, ‘has no 

place in our sufficiency of the evidence analysis.’ ” Id. at 463-64 (quoting Wilcox v. 

Ford, 813 F.2d 1140, 1145 n.7 (11th Cir. 1987)) (rejecting application on federal 

habeas review of Florida’s similar heightened burden of proof for cases involving 

circumstantial evidence).6

Frazier also conclusorily asserts that his conviction “hinges on a theory that 

will not stand up to an unbiased point of view.” Frazier never makes clear what 

sort of “bias” allegedly tainted his conviction, and regardless, on habeas review this 

Court must take a “biased point of view” insofar as it must “view[] the evidence in 

the light most favorable to the prosecution” to determine if “any rational trier of fact 

could have found the essential elements of the crime beyond a reasonable doubt.” 

 6 To the extent Frazier argues that the Alabama courts misapplied Alabama law, errors of 

state law do not warrant federal habeas relief. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-

68 (1991) (“[I]t is not the province of a federal habeas court to reexamine state-court 

determinations on state-law questions. In conducting habeas review, a federal court is 

limited to deciding whether a conviction violated the Constitution, laws, or treaties of the 

United States.”); Carrizales v. Wainwright, 699 F.2d 1053, 1055 (11th Cir. 1983) (per 

curiam) (“Questions of pure state law do not raise issues of constitutional dimension for 

federal habeas corpus purposes...A state’s interpretation of its own laws or rules provides 

no basis for federal habeas corpus relief, since no question of a constitutional nature is 

involved.”); Sneed v. Fla. Dep't of Corr., 496 F. App'x 20, 25 (11th Cir. Nov. 7, 2012) (per 

curiam) (unpublished) (“To the extent that Sneed alleged a violation of Florida's speedy 

trial rules, that type of claim is not cognizable on federal habeas review because it only 

involves state procedural rules rather than errors of federal constitutional dimension.”).

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Jackson, 443 U. S. at 319. As such, Frazier’s threadbare claim of bias does not 

warrant further consideration.

In his reply, Frazier proffers more specific allegations in support his claim. 

First, he claims that the Court of Criminal Appeals’s finding that he “was fleeing 

wearing underpants” is “not only misleading, but a complete fabrication that can be 

disproved looking at the facts” because, according to Frazier, while he was indeed 

wearing underpants, “the fact that [he] was wearing shorts (basketball)[ was] 

omitted[.]” (Doc. 18 at 1). Frazier continues:

Another point of conflict is the bloodstained glove! The “theory” is that 

coming from the robbery, I tore the glove and my hand jumping the 

fence. How was I able to, after jumping the fence, come in contact with 

money, my clothes, and the car, without leaving any traces of blood on 

anything? Keep in mind that from the time that the crime happened 

until I was in handcuffs, only seven to eight mins. had elapsed. No one 

has even put the time to a test.

(Id.).

Even excluding all of these disputed evidentiary points, the unchallenged 

factual findings of the Court of Criminal Appeals show the following: (1) an 

individual matching Frazier’s general physical description robbed the Family Dollar 

store at gunpoint while wearing plastic gloves; (2) a plastic glove with Frazier’s 

blood on it was found near the cash register till taken from the store; (3) clothes 

matching those worn by the robber were found in a car which was connected to 

Frazier through pay stubs found therein; and (4) Frazier was apprehended within 

the vicinity of the store after jumping a fence and fleeing from police officers 

responding to the robbery. Considering these undisputed facts, the undersigned 

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finds that the Alabama courts’ determination that sufficient evidence supported 

Frazier’s conviction was neither contrary to nor an unreasonable application of 

clearly established federal law, nor did it involve an unreasonable determination of 

the facts. 

Even if, as he claims, Frazier was in fact wearing basketball shorts over his 

underwear when apprehended, the Court of Criminal Appeals’s finding that Frazier 

was fleeing in his underwear served merely to bolster the determination that 

Frazier’s behavior was suspicious, a rational inference amply supported by other, 

unchallenged evidence (e.g. that Frazier was fleeing without shoes). While it might 

be considered unusual that Frazier’s blood was found only on the glove, this does 

not negate that fact that Frazier’s blood was still linked to the robbery. Finally, 

Frazier has offered no coherent argument why the amount of time elapsing between 

the robbery and his arrest renders the state courts’ decision unreasonable.

As such, the undersigned will RECOMMEND that Frazier’s habeas petition 

(Doc. 7) be DENIED and this action DISMISSED with prejudice.

C. Certificate of Appealability

In actions, such as this one, brought under § 2254, a “district court must 

issue or deny a certificate of appealability when it enters a final order adverse to the 

applicant.” Rule 11(a) of the Rules Governing § 2254 Cases in the United States 

District Courts. “A certificate of appealability may issue ‘only if the applicant has 

made a substantial showing of the denial of a constitutional right.’ ” Spencer v. 

United States, 773 F.3d 1132, 1137 (11th Cir. 2014) (en banc) (quoting 28 U.S.C. § 

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2253(c)(2)). However, “a COA does not require a showing that the appeal will 

succeed.” Miller-El v. Cockrell, 537 U.S. 322, 337 (2003).

Where, as here, the district court “has rejected the constitutional claims on 

the merits, the showing required to satisfy § 2253(c) is straightforward: The 

petitioner must demonstrate that reasonable jurists would find the district court's 

assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 

529 U.S. 473, 484 (2000). See also Miller-El, 537 U.S. at 336 (“Under the controlling 

standard, a petitioner must show that reasonable jurists could debate whether (or, 

for that matter, agree that) the petition should have been resolved in a different 

manner or that the issues presented were adequate to deserve encouragement to 

proceed further.” (citations omitted and punctuation modified)).). “A prisoner 

seeking a COA must prove something more than the absence of frivolity or the 

existence of mere good faith on his or her part.” Miller-El, 537 U.S. at 338 

(quotations omitted).

Upon consideration, the undersigned will RECOMMEND that a certificate of 

appealability in this action be DENIED. Frazier has not made a substantial 

showing of the denial of a constitutional right, and he has presented no 

constitutional claim for which “reasonable jurists would find [this] court’s 

assessment...debatable or wrong.” Slack, 529 U.S. at 484.

Rule 11(a) further provides: “Before entering the final order, the court may 

direct the parties to submit arguments on whether a certificate should issue.” If 

there is an objection to this recommendation by the petitioner, he may bring this 

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argument to the attention of the district judge in the objections permitted to this 

report and recommendation. See, e.g., Brightwell v. Patterson, No. CA 11-0165-WSC, 2011 WL 1930676, at *6 (S.D. Ala. Apr. 11, 2011), report & recommendation 

adopted, 2011 WL 1930662 (S.D. Ala. May 19, 2011)7; Griffin v. DeRosa, No. 

3:10cv342/RV/MD, 2010 WL 3943702, at *4 (N.D. Fla. Sep. 20, 2010) (providing for 

same procedure), report & recommendation adopted sub nom. Griffin v. 

Butterworth, 2010 W: 3943699 (N.D. Oct. 5, 2010).8

D. Appeal In Forma Pauperis

“An appeal may not be taken in forma pauperis if the trial court certifies in 

writing that it is not taken in good faith.” 28 U.S.C.A. § 1915(a)(3). A district 

court’s finding “that an appeal would not be in good faith because no certificate of 

appealability had been issued . . . is not enough to explain why the appeal on the 

merits would not be in good faith, because the standard governing the issuance of a 

certificate of appealability is not the same as the standard for determining whether 

an appeal is in good faith. It is more demanding . . . [T]o determine that an appeal is 

in good faith, a court need only find that a reasonable person could suppose that the 

appeal has some merit.” Walker v. O'Brien, 216 F.3d 626, 631-32 (7th Cir. 2000). 

See also Weaver v. Patterson, Civ. A. No. 11-00152-WS-N, 2012 WL 2568218, at *7 

 7 It should be noted that in that proceeding, the Eleventh Circuit (Judge Hull) also denied 

the petitioner’s motion for certificate of appealability on October 11, 2011. (See Doc. 14 in 

CA-11-0165-WS-C.).

8 Should the Court adopt this recommendation and deny a certificate of appealability, the 

petitioner “may not appeal the denial but may seek a certificate from the court of appeals 

under Federal Rule of Appellate Procedure 22.” Rule 11(a) of the Rules Governing § 2254 

Cases in the United States District Courts.

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(S.D. Ala. June 19, 2012) (Nelson, M.J.), report and recommendation adopted, Civ. 

A. No. 11-00152-WS-N, 2012 WL 2568093 (S.D. Ala. July 3, 2012) (Steele, C.J.) (“An 

appeal may not be taken in forma pauperis if the trial court certifies in writing that 

the appeal is not taken in good faith. 28 U.S.C. § 1915(a)(3); see Fed. R. App. P. 

24(a)(3)(A); Lee v. Clinton, 209 F.3d 1025, 1026 (7th Cir. 2000) (concluding that 

‘good faith’ is ‘an objective concept’ and that ‘not taken in good faith’ is ‘a synonym 

for frivolous’); DeSantis v. United Techs, Corp., 15 F. Supp. 2d 1285, 1288–89 (M.D. 

Fla. 1998) (stating that good faith ‘must be judged by an objective, not a subjective, 

standard’ and that an appellant ‘demonstrates good faith when he seeks appellate 

review of any issue that is not frivolous’). An appeal filed in forma pauperis is 

frivolous if ‘it appears that the Plaintiff has little to no chance of success,’ meaning 

that the ‘factual allegations are clearly baseless or that the legal theories are 

indisputably meritless.’ Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993).”). But 

see, e.g., United States v. McCray, No. 4:07CR20-RH, 2012 WL 1155471, at *2 (N.D. 

Fla. Apr. 5, 2012) (“Because the defendant has not obtained—and is not entitled 

to—a certificate of appealability, any appeal by the defendant will not be taken in 

good faith. I certify under Federal Rule of Appellate Procedure 24(a) that any 

appeal will not be taken in good faith and that the defendant is not otherwise 

entitled to proceed in forma pauperis on appeal.”).

Based on the foregoing analysis, the undersigned will RECOMMEND the 

Court certify that any appeal by Frazier in this action would be without merit and 

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therefore not taken in good faith and, accordingly, find that Frazier is not entitled 

to appeal in forma pauperis.

IV. Conclusion

In accordance with the foregoing analysis, it is RECOMMENDED that 

Frazier’s habeas petition (Doc. 7) be DENIED, that this action be DISMISSED 

with prejudice, that judgment be entered in favor of the Respondent, and that the 

Court find that Frazier is not entitled to a certificate of appealability or to appeal in 

forma pauperis.

V. Notice of Right to File Objections

A copy of this report and recommendation shall be served on all parties in the 

manner provided by law. Any party who objects to this recommendation or anything 

in it must, within fourteen (14) days of the date of service of this document, file 

specific written objections with the Clerk of this Court. See 28 U.S.C. § 636(b)(1); 

Fed. R. Civ. P. 72(b); SD ALA LR 72.4. The parties should note that under Eleventh 

Circuit Rule 3-1, “[a] party failing to object to a magistrate judge's findings or 

recommendations contained in a report and recommendation in accordance with the 

provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the 

district court's order based on unobjected-to factual and legal conclusions if the 

party was informed of the time period for objecting and the consequences on appeal 

for failing to object. In the absence of a proper objection, however, the court may 

review on appeal for plain error if necessary in the interests of justice.” 11th Cir. R. 

3-1. In order to be specific, an objection must identify the specific finding or 

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recommendation to which objection is made, state the basis for the objection, and 

specify the place in the Magistrate Judge’s report and recommendation where the 

disputed determination is found. An objection that merely incorporates by reference 

or refers to the briefing before the Magistrate Judge is not specific.

DONE this the 15th day of June 2015.

/s/ Katherine P. Nelson

KATHERINE P. NELSON

UNITED STATES MAGISTRATE JUDGE

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