Daniel Eugene Frazer v. United States

I

A.

On June 21, 1988, Daniel Eugene Frazer was charged in a superseding indictment with fifteen counts of bank robbery in violation of 18 U.S.C. § 2113 (a). Because he was indigent, an attorney was appointed to represent him.

On advice of appointed counsel, Mr. Frazer waived his right to a trial by jury, and the case was tried to the court on stipulated facts. He was convicted of eight counts and sentenced to a twenty-year term of imprisonment.

Mr. Frazer filed, but later abandoned, an appeal. Subsequently, and for substantial assistance to the Government, his sentence was reduced to fifteen years under Federal Rule of Criminal Procedure 35.

B.

On May 2, 1991, Mr. Frazer filed a pro se motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. He alleged inter alia that his appointed trial attorney had failed to provide for him the assistance to which he was entitled under the Sixth Amendment. Specifically, Mr. Frazer claimed in his motion that his appointed trial attorney had called him a “stupid nigger son of a bitch and said he hopes I get life. And if I continue to insist on going to trial I will find him to be very ineffective.” Moreover, Mr.…

concurring:

I concur in the judgment of the court.

If Frazer’s appointed trial attorney threatened to render ineffective assistance of counsel in the event that Frazer did not plead guilty, then I would presume prejudice. If prejudice is presumed then there is no need to determine whether the attorney’s conduct affected the trial’s outcome. Frazer pleads such a case and he is entitled to an evidentia-ry hearing.

Frazer also claims to be the victim of a racially explicit verbal assault from his attorney. He claims that this establishes an “irreconcilable conflict” between attorney and client which prevented an adequate defense. The question whether an alleged racial slur, by itself, violates the Sixth Amendment is not properly resolved by the presumed prejudice standard.

There are three possible standards under which we determine whether an ineffective assistance claim constitutes a Sixth Amendment violation. A fourth standard is applied when the defendant claims an “irreconcilable conflict” with the attorney and seeks substitution of counsel. Under this fourth standard, the denial of substitution may violate the Sixth Amendment.

I

Since the standard varies depending on the…

18 F.3d 778 Daniel Eugene FRAZER, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. No. 92-55193. United States Court of Appeals, Ninth Circuit. Argued and Submitted Nov. 2, 1993. Decided March 10, 1994. Kenneth M. Stern, Woodland Hills, California, for the petitioner-appellant. Mark D. Larsen, Assistant United States Attorney, and Peter G. Spivack, Assistant United States Attorney, Los Angeles, California, for the respondent-appellee. Appeal from the United States District Court for the Central District of California. Before: BROWNING, BEEZER, and TROTT, Circuit Judges. TROTT, Circuit Judge: 1 * A. 2 On June 21, 1988, Daniel Eugene Frazer was charged in a superseding indictment with fifteen counts of bank robbery in violation of 18 U.S.C. Sec. 2113 (a). Because he was indigent, an attorney was appointed to represent him. 3 On advice of appointed counsel, Mr. Frazer waived his right to a trial by jury, and the case was tried to the court on stipulated facts. He was convicted of eight counts and sentenced to a twenty-year term of imprisonment. 4 Mr. Frazer filed, but later abandoned, an appeal. Subsequently, and for substantial assistance to the Government,…