Frye v. Dunn, CIVIL ACTION NO. 14-00192-CG-N

• Decision Date: 04 May 2015
• Docket Number: CIVIL ACTION NO. 14-00192-CG-N
• Court: U.S. District Court — Southern District of Alabama
• Parties: SCOTT A. FRYE, AIS # 00278148, Petitioner, v. JEFFERSON S. DUNN, Commissioner, Alabama Department of Corrections, Respondent.

SCOTT A. FRYE, AIS # 00278148, Petitioner, v. JEFFERSON S. DUNN,¹ Commissioner, Alabama Department of Corrections, Respondent.

CIVIL ACTION NO. 14-00192-CG-N

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

May 4, 2015

REPORT AND RECOMMENDATION

Petitioner Scott A. Frye ("Frye"), an Alabama prisoner proceeding pro se, has filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 (Doc. 1). The Respondent, through the Office of the Attorney General of the State of Alabama, has timely filed an Answer (Doc. 5) to the petition, and Frye has filed a reply (Doc. 6) to the Answer.

This 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 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 statedherein, it is RECOMMENDED that Frye's habeas petition (Doc. 1) be DENIED and that this action be DISMISSED with prejudice.² It is further RECOMMENDED that Frye be found not entitled either to a Certificate of Appealability or to proceed in forma pauperis on appeal.

I. Applicable Background

The Alabama Court of Criminal Appeals set forth the following facts relevant to the claims in Frye's present habeas petition:

A Coffee County grand jury indicted Frye on December 2, 2005, for five counts of the sale of unregistered securities in violation of § 8-6-4, Ala. Code 1975. Frye was not taken into custody in Coffee County, however, until March 2010, immediately following his extradition from the Philippines where he had been living, according to a motion Frye filed in the circuit court, since September 2005. Counsel was initially appointed for Frye, but in December 2010, at Frye's request, that counsel was permitted to withdraw and Frye proceeded to represent himself...

On December 27, 2010, Frye moved for a speedy trial. In that motion, Frye specifically asked the court "to set a trial date in January 2011 ... or, if the State is allowed to delay the trial date for any reason, up until that date, ... to allow [Frye] to be released on his own recognizance or signature bond." The State responded to Frye's motion and asserted, among other things, that any delay in the prosecution was because Frye had fled to the Philippines once he had learned that he would be indicted in 2005. The trial court set a hearing date of January 27, 2011, to consider all pending motions in the case.

On January 24, 2011, Frye filed a "motion to dismiss all indictments with prejudice for lack of speedy prosecution and/or speedy trial." In that motion, Frye stated that he had traveled to the Philippines in September 2005 "and then ended up staying in Angeles, City, Philippines, to get engaged with a Philippine girl and endeavoring to set up businesses and meet potential clients and funding sources." Frye asserted that when he moved to the Philippines he changed his address for his bank account in the United States; he further asserted that he never tried to "hide" in the Philippines or otherwise attempt to evade prosecution before he was arrested in October 2009 in the Philippines. Frye claimed that as early as January 2006 the State knew the Frye was in the Philippines.⁴ Frye asserted that he first learned of the December 2005 indictments against him after September 2009 when, he said, he applied for a replacement United States passport at an embassy in the Philippines. According to Frye, in October or November 2009, Special Agent Shawn Gavin of the Federal Bureau of Investigation notified him of the indictments and the outstanding arrest warrants. In November 2009, the State of Alabama began the extradition process, and Frye arrived in Alabama in March 2010. Frye's motion asserted that during his extradition, he was forced to leave "his computer and documents and such evidence" and, he said, that evidence had "disappeared."

FN4 - Frye based this allegation on a February 3, 2006, video ofthe State provided to him in discovery; on that video according to Frye, an individual stated he had heard from one of Frye's alleged coconspirators that Frye was in the Philippines.

On January 27, 2011, the trial court held a hearing on all pending motions, including the motion for a speedy trial and the motion to dismiss all indictments with prejudice for lack of speedy prosecution and/or speedy trial. Frye at that time appeared pro se because, as noted above, the trial court had granted his motion to do so. Frye reasserted many of the allegations raised in his motions and stated that "any investigator with a salt [sic] would have been able to find [him in the Philippines] in five seconds." In response, the State pointed out that it had timely entered the arrest warrants for Frye on the NCIC and that, once Frye "came into contact with legitimate US law enforcement ... by entering the embassy, he was served with the indictments and he was arrested" and then timely extradited to Alabama.

Following the hearing, the trial court, in a written order dated January 31, 2011, granted the motion for a speedy trial and "specially set" the case for trial in April 2011. That order denied, without stating any specific reason, Frye's motion to dismiss for lack of speedy prosecution or speedy trial.

(Doc. 5-14 at 4 - 6 [Ala. Ct. Crim. App. 7/3/2013 Memorandum Opinion, pp. 4-6] (record citations omitted)).

Frye's five Coffee County cases (Coffee County Circuit Court Case Nos. CC-2010-132 through 136) were consolidated for trial in April 2011. (See id. at 1, 4). At trial, Frye continued to represent himself, though with the assistance of court-appointed "standby" counsel, and a jury convicted him on all five counts charged in the indictment. (See id. at 4). The circuit court sentenced Frye to 10 years imprisonment on each count, with the sentences in CC-2010-132 and -133 to run concurrently with each other but consecutively to the sentences imposed in CC-2010-134, -135, and -136, and likewise with the sentences in CC- 2010-134, -135,and -136 to run concurrently with each other but consecutively to those imposed in CC-2010-132 and -133. (Id. at 1). The court also imposed a $500 crime-victims-compensation assessment and required Frye to pay court costs and to reimburse the State for any attorney fees approved by the court. (Id. at 1-2).

Frye timely appealed and, at his request, was initially appointed appellate counsel, though he later elected to discharge counsel and return to proceeding pro se. (See id. at 4). On appeal, Frye argued, among other things, that the circuit court erred in denying his motions to dismiss the indictment due to the alleged denial of his right to a speedy trial guaranteed by the Sixth Amendment to the United States Constitution. (See id. at 4 - 6).

On July 3, 2013, the Alabama Court of Criminal Appeals issued a memorandum opinion affirming the circuit court's judgment. (Doc. 5-14). As to Frye's speedy-trial claims, the Court of Criminal Appeals, analyzing and balancing the factors set forth in Barker v. Wingo, 407 U.S. 514 (1972), held that the circuit court did not err in denying Frye's motions to dismiss on speedy-trial grounds. (See Doc. 5-14 at 7 - 12). Frye filed pro se an application for rehearing with the Court of Criminal Appeals (Doc. 5-15), which that court overruled on September 13, 2013 (Doc. 5-16). Frye then filed pro se a petition for writ of certiorari with the Alabama Supreme Court (Doc. 5-17), which that court denied without opinion on February 14, 2014, issuing a Certificate of Judgment that same day. (Doc. 5-18).

Frye did not seek further review on direct appeal with the United States Supreme Court, nor did he seek post-conviction relief in state court prior to filingthe present habeas petition (see Doc. 1 at 3 - 4), on April 25, 2014 (the date Frye declares, under penalty of perjury, that he delivered the petition to prison authorities for mailing (Doc. 1 at 13)).³

II. Claim for Relief⁴

Frye's habeas petition asserts only one claim for relief: that the state courts unreasonably applied the Barker v. Wingo factors in denying his motions to dismiss the Coffee County indictment on Sixth Amendment speedy-trial grounds.⁵ The Respondent concedes that Frye's petition is timely, see 28 U.S.C. § 2244(d), and that the claim he raises is both "properly exhausted and not procedurally defaulted."(Doc. 5 at 9). However, the Respondent argues that Frye is due no habeas relief on the merits of his claim.⁶

III. Analysis

A. Standard of Habeas Review

Because Frye'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, No. 14-618, 2015 WL 1400852, at *3 (U.S. Mar. 30, 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 isdifficult 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...