Larry Frazier v. John Varga, 2016 U.S. App. LEXIS 21474

Background

In September 1995 Larry Frazier entered a 62‑year‑old woman’s ground‑floor apartment, threatened her with a gun, and during a struggle the gun discharged; police later found Frazier wounded in the apartment. He was convicted of home invasion.
The Class X home‑invasion statutory maximum was 30 years; the sentence was doubled to 60 years under Illinois law because the victim was over 60.
Frazier maintained innocence at trial; physical evidence (fingerprints, gun discharged from <1 foot) supported the victim’s account and the jury convicted.
On state direct appeal Frazier’s counsel raised only an Apprendi challenge to the extended sentence; the appellate court affirmed. Pro se supplemental materials were stricken and many pro se claims were not considered on the merits.
Frazier pursued state post‑conviction relief (pro se and with appointed counsel) and was denied. He then filed a pro se federal habeas petition asserting several grounds, including a notice/Apprendi claim and ineffective‑assistance claims.
The district court construed the pro se petition as raising an Apprendi claim and several ineffective‑assistance claims, denied relief, and found procedural default on some points. On appeal Frazier, with counsel, pressed only a new claim that trial counsel was ineffective for failing to warn him he faced an extended sentence due to the victim’s age.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether trial counsel was ineffective for failing to warn Frazier he could receive an extended term because of victim’s age	Frazier: counsel failed to advise him he risked an extended (60‑yr) sentence, and he would have pled if so advised	State: claim not presented to district court; exhibits and petition showed focus on prosecutorial/charging notice and Apprendi, not counsel’s failure to warn	Court: Forfeited — claim was not presented to the district court and thus cannot be raised for first time on appeal
Whether the district court correctly treated pro se filings liberally to find ineffective assistance claims	Frazier: pro se materials should be read broadly to include ineffective‑assistance claim about notice/warning	State: pro se filings primarily addressed prosecutorial notice and statutory/Apprendi issues; they did not fairly present an ineffective‑assistance claim about counsel’s warning	Court: Liberal construction does not convert a notice/Apprendi claim into an ineffective‑assistance claim; district court’s reading was correct
Whether the petition’s ground asserting failure to notify of enhancement constituted an ineffective‑assistance claim	Frazier: ground one (failure to notify of enhancement) encompassed counsel’s failure to inform defendant	State: ground one addressed prosecution/judicial duties; ground four separately listed ineffective‑assistance claims and did not include the notice theory	Court: Ground one concerned prosecutorial/judicial notice; ground four did not assert the specific warning claim — thus the warning claim was not presented below
Whether pro se exhibits (statutory excerpts) supported an ineffective‑assistance claim	Frazier: exhibits showed failure to notify about enhancements and remedies, implying counsel fault	State: exhibits cite statutory charging/notice/remedy requirements directed at the State and court, not defense counsel	Court: Exhibits reinforced that the claim was about State notice and trial judge conduct, not counsel’s failure to warn; they do not preserve the new counsel‑warning argument

Key Cases Cited

Mertz v. Williams, 771 F.3d 1035 (7th Cir. 2014) (arguments not raised in district court cannot be raised for first time on appeal)
Sanders v. Cotton, 398 F.3d 572 (7th Cir. 2005) (same principle regarding appellate forfeiture)
Pole v. Randolph, 570 F.3d 922 (7th Cir. 2009) (federal habeas arguments not presented to district court are forfeited on appeal)
Apprendi v. New Jersey, 530 U.S. 466 (2000) (facts increasing penalty beyond statutory maximum must be submitted to a jury)
Erickson v. Pardus, 551 U.S. 89 (2007) (pro se pleadings are to be liberally construed)