IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

SCOTT A. FRYE, AIS # 00278148, )

Petitioner, )

)

v. ) CIVIL ACTION NO. 14-00192-CG-N

)

JEFFERSON S. DUNN,1 )

Commissioner, Alabama Department)

of Corrections, )

Respondent. )

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 stated 

 1 Frye has notified the Court that he has been transferred to the Alabama Therapeutic 

Educational Facility, a private penal facility with no listed warden (see

http://www.doc.state.al.us/FacAddr.aspx (last visited April 3, 2015)). (Doc. 8). Because 

Frye remains a prisoner under the control of the Alabama Department of Corrections (see

http://www.doc.state.al.us/InmateSearch.aspx (last visited April 3, 2015)), Jefferson S. 

Dunn, the current Commissioner of ADOC, is substituted for Warden Mary Cooks as the 

Respondent in this action. See Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004) (“[I]n habeas 

challenges to present physical confinement-‘core challenges’-the default rule is that the 

proper respondent is the warden of the facility where the prisoner is being held, not the 

Attorney General or some other remote supervisory official.”).

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herein, 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:

 2 28 U.S.C. § 2241(d) provides: “Where an application for a writ of habeas corpus is 

made by a person in custody under the judgment and sentence of a State court of a State 

which contains two or more Federal judicial districts, the application may be filed in the 

district court for the district wherein such person is in custody or in the district court for 

the district within which the State court was held which convicted and sentenced him and 

each of such district courts shall have concurrent jurisdiction to entertain the application.”). 

Eleventh Circuit precedent appears to treat § 2241(d) as jurisdictional. See Breazeale v. 

Bradley, 582 F.2d 5, 6 (5th Cir. 1978) (“Federal habeas corpus may be brought only in a 

federal district court which has jurisdiction either over the prisoner or over his custodian. 

See Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 93 S. Ct. 1123, 1130, 35 L. Ed. 2d 

443 (1973); Blau v. United States, 566 F.2d 526, 527 (5th Cir. 1978). If Breazeale is eligible 

for any relief, then, he must seek it in Alabama.” (emphasis added)); Bonner v. City of 

Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc) (adopting as binding precedent in 

the Eleventh Circuit all decisions of the former Fifth Circuit handed down prior to October 

1, 1981). But see U. S. ex rel. Sero v. Preiser, 506 F.2d 1115, 1128 (2d Cir. 1974) (“We think 

it clear, from both the Court's language[ in Braden] and the language of § 2241(d), that it 

makes more sense to read this section as a provision fixing venue and aimed at problems of 

judicial administration whose solution lies in the balance of convenience among various 

courts.”); Bozeman v. Lambert, 587 F. Supp. 1021, 1023 (M.D. Ala. 1984) (“Section 2241(d) 

is a venue statute, however, and not a jurisdictional restriction.” (citing Preiser)).

Frye’s petition challenges a conviction and sentence handed down by the Circuit 

Court of Coffee County, Alabama, which is part of the Middle District of Alabama. See 28 

U.S.C. § 81(b). However, because Frye filed his habeas petition while he was incarcerated 

at Atmore Community Work Center in Escambia County, Alabama, which is part of this 

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

Frye’s subsequent transfer to the Alabama Therapeutic Educational Facility in 

Columbiana, Shelby County, Alabama (see http://www.doc.state.al.us/FacAddr.aspx (last 

visited April 3, 2015)), a part of the Northern District of Alabama, see 28 U.S.C. § 81(a), 

does not divest this Court of such jurisdiction. See McClure v. Hopper, 577 F.2d 938, 939-40 

(5th Cir. 1978) (“Jurisdiction attached upon the initial filing for habeas corpus relief. It was 

not destroyed upon the transfer of petitioner and accompanying custodial change. While his 

transfer to the Northern District may have given both courts concurrent jurisdiction, it did 

not destroy the power of the Southern District court to rule in his case.” (citations omitted)).

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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 of 

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the 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. CC2010-132 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 courtappointed “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 CC2010-134, -135, and -136, and likewise with the sentences in CC- 2010-134, -135, 

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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-victimscompensation 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 filing 

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the 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.” 

 3 A pro se prisoner’s federal habeas petition is deemed filed on the date it was delivered to 

prison authorities for mailing. See, e.g. Mattern v. Sec'y for Dep't of Corr., 494 F.3d 1282, 

1284 n.2 (11th Cir. 2007) (per curiam); Rule 3(d) of the Rules Governing Section 2254 Cases 

in the United States District Courts.

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).

5 Frye’s petition also asserts that he was denied his right to a speedy trial under the 

Alabama state constitution. (See Doc. 1 at 7). However, 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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(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 is 

 6 Following his Coffee County convictions, Frye, pursuant to a conditional guilty plea 

(preserving his right to appeal his speedy-trial claims there), was also convicted of 

securities fraud in Jefferson County, Alabama, with the sentence in that case to run 

concurrent with that of his Coffee County case. (See Doc. 1 at 11). The United States 

District Court for the Northern District of Alabama recently rejected Frye’s similar speedytrial habeas claim challenging his Jefferson County convictions. See Frye v. Attorney Gen. 

of the State of Ala., No. 2:13-CV-2324-MHH-TMP, 2015 WL 328342 (N.D. Ala. Jan. 26, 

2015).

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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, 

2015 WL 1400852, at *3 (“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 reemphasized 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, 2015 WL 1400852, at *3.

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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 

(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 

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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 

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 Frye’s claim for 

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

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

Criminal Appeals in its memorandum opinion (Doc. 5-14) 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. Speedy Trial Claim

The Sixth Amendment guarantees that, “[i]n all criminal prosecutions, 

the accused shall enjoy the right to a speedy ... trial....” On its face, the 

Speedy Trial Clause is written with such breadth that, taken literally, 

it would forbid the government to delay the trial of an “accused” for 

any reason at all. [United States Supreme Court] cases, however, have 

qualified the literal sweep of the provision by specifically recognizing 

the relevance of four separate enquiries: whether delay before trial was 

uncommonly long, whether the government or the criminal defendant 

is more to blame for that delay, whether, in due course, the defendant 

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asserted his right to a speedy trial, and whether he suffered prejudice 

as the delay's result. 

Doggett v. United States, 505 U.S. 647, 651 (1992) (citing Barker, 407 U.S. at 530).

See also Vermont v. Brillon, 556 U.S. 81, 89-90 (2009) (“The speedy-trial right is 

‘amorphous,’ ‘slippery,’ and ‘necessarily relative.’ Barker, 407 U.S., at 522, 92 S. Ct. 

2182 (quoting Beavers v. Haubert, 198 U.S. 77, 87, 25 S. Ct. 573, 49 L. Ed. 950 

(1905)). It is ‘consistent with delays and depend[ent] upon circumstances.’ 407 U.S., 

at 522, 92 S. Ct. 2182 (internal quotation marks omitted). In Barker, the Court 

refused to ‘quantif[y]’ the right ‘into a specified number of days or months’ or to 

hinge the right on a defendant's explicit request for a speedy trial. Id., at 522–525, 

92 S. Ct. 2182. Rejecting such ‘inflexible approaches,’ Barker established a 

‘balancing test, in which the conduct of both the prosecution and the defendant are 

weighed.’ Id., at 529, 530, 92 S. Ct. 2182. ‘[S]ome of the factors’ that courts should 

weigh include ‘[l]ength of delay, the reason for the delay, the defendant's assertion 

of his right, and prejudice to the defendant.’ Ibid.”); United States v. Knight, 562 

F.3d 1314, 1323 (11th Cir. 2009) (“To determine whether the government has 

violated the right to a speedy trial under the Sixth Amendment, a district court 

considers four factors: (1) ‘length of delay’; (2) ‘the reason for the delay’; (3) ‘the 

defendant's assertion of his right’; and (4) ‘prejudice to the defendant.’ ” (quoting 

Barker, 407 U.S. at 530)). “Barker’s formulation ‘necessarily compels courts to 

approach speedy trial cases on an ad hoc basis[.]’ ” Brillon, 556 U.S. at 91 (quoting 

Barker, 407 U.S. at 530) (alteration added).

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1. Length of Delay

“[E]xcessive delay presumptively compromises the reliability of a trial in 

ways that neither party can prove or, for that matter, identify. While such 

presumptive prejudice cannot alone carry a Sixth Amendment claim without regard 

to the other Barker criteria, it is part of the mix of relevant facts, and its importance 

increases with the length of delay.” Id. at 655-56 (citation omitted). In analyzing 

Barker’s “length of delay” factor in Frye’s direct appeal, the Alabama Court of 

Criminal Appeals reasonably recognized that, under then-existing Supreme Court 

precedent, the “delay of approximately 64 months” – that is, approximately 51⁄3

years – between Frye’s indictment in Coffee County in December 2005 and his trial 

in April 20117 was “sufficient to trigger an examination of the remaining Barker 

factors.”8 (Doc. 5-14 at 8). See Doggett, 505 U.S. at 652 n.1 (“Depending on the 

nature of the charges, the lower courts have generally found postaccusation delay 

‘presumptively prejudicial’ at least as it approaches one year.”); Parris v. Warden, 

 7 “ ‘The Sixth Amendment right to a speedy trial attaches at the time of arrest or 

indictment, whichever comes first, and continues until the date of trial.’ ” Knight, 562 F.3d 

at 1323 (quoting United States v. Walters, 591 F.2d 1195, 1200 (5th Cir. 1979) (citing 

Dillingham v. United States, 423 U.S. 64, 96 S. Ct. 303, 46 L. Ed. 2d 205 (1975))).

8 Contrary to what Frye appears to believe, however, a delay of approximately 51⁄3 years 

alone does not make a speedy trial violation a foregone conclusion. Cf. United States v. 

Lamar, 562 F. App'x 802, 805 (11th Cir. April 2, 2014) (per curiam) (unpublished) (“There 

were 42 months between Lamar's indictment on November 5, 2008, and his arrest on May 

8, 2012. Although this delay requires the speedy-trial analysis, it is substantially less than 

the eight-and-one-half-year delay in Doggett. See [United States v. ]Villarreal, 613 F.3d

[1344,] 1355[ (11th Cir. 2010)] (concluding no speedy-trial violation, although nearly 10–

year delay from indictment to arrest, which weighed against convicted defendant)...

Because the first three Barker factors do not uniformly weigh heavily against the 

government, however, Lamar was required to demonstrate actual prejudice, which he failed 

to do.”).

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Limestone Corr. Facility, 542 F. App'x 850, 852 (11th Cir. Oct. 24, 2013) (per 

curiam) (unpublished)9 (“A delay of one year is considered ‘presumptively 

prejudicial,’ and triggers an inquiry into the other Barker factors.” (citing Doggett, 

505 U.S. at 652 n.1)), cert. denied, Parris v. Mitchem, 134 S. Ct. 1502 (2014); Stoner 

v. Graddick, 751 F.2d 1535, 1544 (11th Cir. 1985) (per curiam) (“The Supreme 

Court cases and cases in this circuit have evaluated prejudice in the context of 

delays of less than four years.”).

2. Reason for the Delay

In addressing the “reason for delay” factor, “Barker instructs that ‘different 

weights should be assigned to different reasons,’ [407 U.S.], at 531, 92 S. Ct. 2182, 

and in applying Barker, [the Supreme Court] ha[s] asked ‘whether the government 

or the criminal defendant is more to blame for th[e] delay.’ ” Brillon, 556 U.S. at 90 

(quoting Doggett, 505 U.S. at 651). See also United States v. Bagga, 782 F.2d 1541, 

1543 (11th Cir. 1986) (“To determine whether Bagga's right to a speedy trial has 

been violated the conduct of the government must be weighed against the conduct of 

the defendant.” (citing Barker, 407 U.S. at 530)). “Deliberate delay ‘to hamper the 

defense’ weighs heavily against the prosecution. ‘[M]ore neutral reason[s] such as 

negligence or overcrowded courts’ weigh less heavily ‘but nevertheless should be 

considered since the ultimate responsibility for such circumstances must rest with 

the government rather than with the defendant.’ ” Brillon, 556 U.S. at 90 (quoting 

 9 The undersigned recognizes that, in this Circuit, “[u]npublished opinions are not 

considered binding precedent, but they may be cited as persuasive authority.” 11th Cir. R. 

36-2 (effective Dec. 1, 2014). See also Bonilla v. Baker Concrete Const., Inc., 487 F.3d 1340, 

1345 n.7 (11th Cir. 2007) (“Unpublished opinions are not controlling authority and are 

persuasive only insofar as their legal analysis warrants.”).

Case 1:14-cv-00192-CG-N Document 9 Filed 05/04/15 Page 13 of 31
14

Barker, 407 U.S. at 531) (internal citation omitted). “In contrast, delay caused by

the defense weighs against the defendant...” Id.

The Court of Criminal Appeals addressed this factor as follows:

According to Frye, he left the United States for the Philippines in 

September 2005, which was before he was indicted in December 2005. 

Although Frye contends that “[t]he State made little or no effort to 

bring Frye to trial, arrest him, and/or to minimally at least officially 

notify him of the indictment,” the record indicates that the State 

entered into the NCIC information regarding Frye’s arrest warrants 

and indictments. Further, the record supports the State’s assertion 

below that once Frye made contact with United States lawenforcement authorities--who, in turn, initiated a search of the NCIC--

Frye was promptly notified of the warrants and charges against him. 

The record does not clearly indicate that the State knew about Frye’s 

whereabouts but deliberately delayed attempting to extradite him; 

rather, the record shows that once the State clearly learned of Frye’s 

location in the Philippines, it immediately initiated the 2-4 month 

extradition process and paid for Frye’s extradition to Alabama. This 

supports a finding that the State acted with reasonable diligence in 

bringing Frye to trial.

Frye admitted at the hearing that he had an acquaintance in the 

United States ship additional clothing to him after he had been in the 

Philippines. Although Frye attributed this to a decision to stay in the 

Philippines longer than he had initially expected to stay, the State 

asserted that Frye had hastily fled the United States because, the 

State said, he had heard that he was going to be indicted in Alabama. 

Thus, under the State’s version of the facts, most of the delay would be 

directly attributable to Frye, which would not count against the State 

in the Barker balancing process. The record does not, however, clearly 

indicate that the State’s version of the facts is correct or incorrect. 

Thus, at best, the delay in this case appears to be justified; at worst, 

the delay would be attributable to “official negligence” by the State. As 

noted above, however, on balance, it appears that the State exercised 

reasonable diligence in attempting to locate Frye and bring him to 

trial. Thus, this factor does not weigh heavily against the State.

(Doc. 5-14 at 8 – 9 (citations and footnotes omitted)).10

 10 In reaching this conclusion, the court relied primarily on Ex parte Walker, 928 So. 2d 259 

(Ala. 2005), which discussed the following “hypothetical” from Doggett: “[I]f the Government 

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“While the government is not required to exhaust all conceivable avenues for 

locating [a defendant] after his indictment, it has a ‘constitutional duty to make a 

diligent, good-faith effort’ to locate and apprehend a defendant and bring the 

defendant to trial.” Bagga, 782 F.2d at 1543 (quoting Smith v. Hooey, 393 U.S. 374, 

383 (1969)). A defendant’s “absence from the country did not relieve the 

government of its obligations to make good-faith efforts to have him returned.” Id.

Here, Frye has made no effort to meet his substantial burden of showing that 

the Court of Criminal Appeals’s determinations of fact were incorrect as to this 

point, see 28 U.S.C. § 2254(e)(1) (“In a proceeding instituted by an application for a 

writ of habeas corpus by a person in custody pursuant to the judgment of a State 

court, 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.”), and the court’s determination that 

the State exercised reasonable diligence in attempting to apprehend Frye, such that 

the “reason for delay” Barker factor did not weight heavily against the State, was 

not unreasonable in light of then-existing clearly-established federal law.11 The 

 

had pursued [the defendant] with reasonable diligence from his indictment to his arrest, his 

speedy trial claim would fail. Indeed, that conclusion would generally follow as a matter of 

course however great the delay, so long as [the defendant] could not show specific prejudice 

to his defense.” 505 U.S. at 656. Based on this passage from Doggett, Walker held that 

“when the state acts with reasonable diligence in bringing the defendant to trial, the 

defendant has the burden of proving prejudice caused by the delay.” 928 So. 2d at 267.

11 Frye complains that the State has put “no evidence...on the record that shows Frye 

evaded arrest[,]” and that it “never submit[ted] any evidence (sworn documents or 

testimony) of what they did to find Frye and bring him to trial...” (Doc. 1-1 at 5. See also 

Doc. 6 at 3 (“...[T]he main fact is there is no evidence submitted by the State at the 

evidentiary hearing. Frye and the State gave oral arguments and presented assertions 

which should not be treated as facts or evidence.”). He cites to cases from federal courts of 

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16

facts of Frye’s case are similar to those in Bagga, in which the Eleventh Circuit 

affirmed the district court’s finding that, for speedy trial purposes, the United 

States government had sufficiently exercised good-faith efforts to locate a defendant 

abroad:

The government strongly argues that it made a reasonable effort to 

locate Bagga, while Bagga is critical of the adequacy of the 

government's efforts to find him after the return of the indictment. To 

determine whether Bagga's right to a speedy trial has been violated 

the conduct of the government must be weighed against the conduct of 

the defendant...

Bagga received a call one evening in April 1978 advising him that his 

wife had suffered a nervous breakdown in India. He left the next 

morning to go to her. After the indictment in July, 1978 the agents 

were at a loss to determine where he had gone. Because of his sudden 

departure it was surmised that he was a fugitive. The agents looked 

for Bagga without success at his residence on East Winding Drive in 

Atlanta, the address that he had given the agents at the time of his 

interview with them. Apparently, he had moved from there by the time 

he was called as a witness in the Weiss case, because he then testified 

that he lived on Copeland Road, Sandy Springs. This could account for 

the agents' failure to find or telephone Bagga's relatives at the 

Copeland Road Complex where Bagga testified they were living during 

late 1978 and early 1979.

The agents also met with no success when they looked for Bagga at a 

 

appeal that, in analyzing speedy trial claims by federal defendants, faulted the government 

for not submitting evidence of its diligence in locating the defendants, with one case stating 

that “arguments in brief are not evidence.” (Id. (quoting United States v. Cardona, 302 

F.3d 494, 497 (5th Cir. 2002) (per curiam)).

A review of the transcript from the January 27, 2011 hearing on Frye’s pretrial 

motions (Doc. 5-2 at 163 – 200; 5-3 at 1 – 50) appears to indicate that, in addressing Frye’s 

speedy trial motions, the State presented no witnesses or other evidence to supports its 

claims of diligence in locating Frye. Instead, it appears, Frye, appearing pro se, engaged in 

long stretches of recounting of his version of the facts, to which the State’s counsel would 

submit rebuttal argument at intervals.

Nevertheless, Frye has not cited, and the undersigned is unaware of, any thenexisting federal law, clearly established by the United States Supreme Court, that would 

have forbidden the Alabama courts from relying on the representations of the State’s 

counsel in weighing the Barker factors.

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restaurant known as the Colorado Mining Company in which Bagga's 

wife, mother-in-law and nephew had a joint enterprise ownership 

interest. One of the agents spoke to employees at the restaurant who 

could give the agent no information of Bagga's whereabouts. The 

record does not disclose whether the agents spoke to any of Bagga's 

relatives.

Bagga complains that there was insufficient inquiry made of the 

passport office to find his passport which was renewed on October 18, 

1978 as a means to locate him or put him on notice of the charges. He 

argues that there can only be an assumption that the agents 

discovered this information and did not act upon it, or that the 

passport office negligently failed to discover it, and thus no notice of 

the indictment was put into his passport file in the American Embassy 

or Consular Office in India. We are unwilling to indulge in Bagga's 

assumption imputing to the agents a negligent or willful failure to act 

or to assume that the passport office was negligent. This carries the 

obligation of a diligent good-faith effort too far.

Finally, Bagga urges that when the government received a tip that 

Bagga was in India, it should have sought his extradition to the United 

States. It is true that Bagga's absence from the country did not relieve 

the government of its obligations to make good-faith efforts to have 

him returned. See United States v. McConahy, 505 F.2d 770 (7th Cir.

1974). But such efforts do not require the government to pursue futile 

legal gestures. In the first place the extradition treaty with India 

expressly covers perjury, but it does not expressly cover a false 

declarations offense with which Bagga was charged. Thus, there was 

great doubt that this was an extraditable offense. Secondly, the 

government had no exact address for Bagga, a prerequisite to a request 

for extradition proceedings. While Bagga contends that the 

government could have learned of Bagga's exact address in India 

because Congressman Fowler, the Bombay Consulate, and the 

Immigration and Naturalization Service had correspondence with 

Bagga, we cannot fault the agents for not checking with them on the 

off-chance that they might have knowledge of Bagga's exact address in 

India. See United States v. Deleon, 710 F.2d 1218 (7th Cir.1983). The 

best that can be said is that if the government was at fault for not 

locating Bagga in India, it was clearly no more than mere negligence. 

“Though a purposeful attempt to delay the trial to prejudice the 

defendant or to gain a tactical advantage for itself should weigh 

heavily against the Government, Barker v. Wingo, supra, 407 U.S. at 

531, 92 S. Ct. at 2192, a more neutral reason, such as negligence, does 

not necessarily tip the scale in favor of the defendant, particularly 

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where the defendant was at liberty and outside the jurisdiction where 

the indictment was returned. United States v. Walters, 5 Cir., 1979, 

591 F.2d 1195, 1201.” United States v. Carter, 603 F.2d 1204, 1207 (5th 

Cir. 1979).

Finally, the evidence shows that the agents sought information from 

the local police authorities, pursued a lead suggesting that Bagga 

would be in Detroit, registered his name with the nationwide crime 

information network and took steps to apprehend Bagga if and when 

he sought to return to the United States. The district court found that 

a reasonable effort was made to locate Bagga, and the failure to locate 

him was not a part of any scheme on the part of government agencies 

to prejudice his defense which could be raised in this action. We think 

that the record supports a finding that the government made a diligent 

good-faith effort to locate Bagga, and, in any event, the findings below 

are not clearly erroneous. United States v. Mitchell, 769 F.2d 1544, 

1547 (11th Cir.1985); See United States v. Beery, 678 F.2d 856, 869 

(10th Cir.1982); United States v. Parish, 468 F.2d 1129, 1134 

(D.C.Cir.1972), cert. denied, 410 U.S. 957, 93 S. Ct. 1430, 35 L. Ed. 2d 

690 (1973).

Bagga, 782 F.2d at 1543-44.12

Given that the Eleventh Circuit, when faced with circumstances similar to 

Frye’s, found the government had acted with reasonable diligence in locating and 

apprehending the defendant, it cannot be said that the Court of Criminal Appeals’s 

decision as to the “reason for delay” Barker factor was contrary to, or involved an 

unreasonable application of, clearly established federal law.

 12 The Northern District of Alabama also found Bagga instructive. See Frye, 2015 WL 

328342, at *3 (“Mr. Frye argues that the State of Alabama knew he was in the Philippines 

as early as 2006 yet negligently failed to do anything to have him arrested there. Even 

assuming petitioner's evidence on this is admissible, having knowledge that Frye was in the 

Philippines is a far cry from knowing where he is in the Philippines so that he may be 

arrested. See United States v. Bagga, 782 F.2d 1541, 1543–44 (11th Cir. 1986) (holding that 

a seven-year delay between indictment and trial did not violate speedy trial rights where 

government received a tip that defendant was in India but had no exact address, a 

prerequisite for extradition proceedings).”).

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Frye apparently believes that the facts of his case more closely mirror those 

of the defendant in Doggett, in which the Supreme Court found a violation of speedy 

trial rights for a defendant who was believed to have left the country after being 

indicted and was not apprehended for 81⁄2 years. However, in analyzing Barker’s 

“reason for delay” factor, the Supreme Court deferred to the factual findings of the 

lower court, which found government negligence weighing this factor against the 

government. See Doggett, 505 U.S. at 652-53 (“As for Barker's second criterion, the 

Government claims to have sought Doggett with diligence. The findings of the 

courts below are to the contrary, however, and we review trial court determinations 

of negligence with considerable deference...The Government gives us nothing to 

gainsay the findings that have come up to us, and we see nothing fatal to them in 

the record. For six years, the Government's investigators made no serious effort to 

test their progressively more questionable assumption that Doggett was living 

abroad, and, had they done so, they could have found him within minutes. While 

the Government's lethargy may have reflected no more than Doggett's relative 

unimportance in the world of drug trafficking, it was still findable negligence, and 

the finding stands.”). The Court established no clear, unequivocal rule that courts 

must always reach such a determination when presented with similar facts; thus, 

Doggett’s holding as to this factor did not compel the Court of Criminal Appeals to 

reach a similar determination in Frye’s case. See White v. Woodall, 134 S. Ct. 1697, 

1706-07, reh'g denied, 134 S. Ct. 2835 (2014) (“[R]elief is available under § 

2254(d)(1)'s unreasonable-application clause if, and only if, it is so obvious that a 

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clearly established rule applies to a given set of facts that there could be no 

fairminded disagreement on the question...” (quotation marks omitted)).

Regardless, the facts of Doggett are materially distinguishable. In Doggett, 

the defendant, who was believed to have left the country in March 1980 following 

his indictment in February 1980, returned to the United States in 1982, passing 

through customs in New York and settling in Virginia. Id. at 648-49. While the 

defendant was abroad, the government passed on an opportunity to initiate formal 

extradition proceedings after the defendant was arrested in Panama and missed 

other opportunities to investigate his whereabouts. Id. at 649-50. The defendant 

was eventually arrested in the United States in September 1988 “when the 

Marshal's Service ran a simple credit check on several thousand people subject to 

outstanding arrest warrants and, within minutes, found out where Doggett lived 

and worked.” Id. at 650. The Court of Criminal Appeals’s factual findings do not 

reflect this degree of neglect, and Frye has not rebutted these findings.13 See 28 

U.S.C. § 2254(e)(1).

 13 Cf. Frye, 2015 WL 328342, at *10 (“The petitioner makes reference to a more recent 

Supreme Court case in support of his claim, citing Doggett v. United States, 505 U.S. 647, 

112 S. Ct. 2686, 120 L. Ed. 2d 520 (1992). In Doggett, however, the Government made ‘no 

serious effort’ to find the defendant, assuming incorrectly that he was living abroad, when, 

in fact, he had returned to the United States and had been living, working, voting, and 

attending school here, and could have been found “within minutes” had the Government 

made any effort to locate him. 505 U.S. at 652. Moreover, the Court stated that ‘if the 

Government had pursued Doggett with reasonable diligence from his indictment to his 

arrest, his speedy trial claim would fail.’ 505 U.S. at 657. In this case, the courts found that 

the state exercised “reasonable diligence in attempting to locate Frye”...There is no 

allegation that Frye, like Doggett, ever traveled back to the United States, or had any 

contact with any law enforcement agencies in the United States. Doggett lived openly in 

Virginia for years; Frye never returned to the United States, nor did he have any contact 

with U.S. officials until he applied for a new passport, after which the state promptly 

undertook to extradite him.”).

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3. Assertion of Right

In addressing this factor, the Court of Criminal Appeals stated:

As noted, Frye arrived in Alabama in March 2010, and he filed his first 

motion for a speedy trial on December 27, 2010, and his second motion 

on January 24, 2011. Further, as noted above, the evidence was 

disputed regarding whether Frye knew of the pendency of the 

indictment during the almost four years between his indictment and 

arrest; Frye stated that he did not know about the indictment, but he 

also admitted that he had an acquaintance ship clothes to him after he 

left the United States, which, the State asserts, indicates that Frye left 

the United States hastily. Thus, as was the case with the accused in 

Ex parte Walker, “there is no conclusive proof one way or the other 

regarding [Frye’s] knowledge of the charges during the delay between 

[his] indictment and her arrest.” 928 So. 2d at 266. Unlike Ex parte 

Walker, however, the evidence in this case tends to indicate that the 

State exercised reasonable diligence to locate Frye and bring him to 

trial. Consequently, this factor, at most, weighs only slightly in Frye’s 

favor...

(Doc. 5-14 at 10).

The undersigned finds that the Court need not decide whether the Court of 

Criminal Appeals reasonably applied this Barker factor.14 In response to Frye’s 

assertion “that the first three Barker factors weigh so heavily in his favor that he is 

relieved of his burden of demonstrating prejudice[,]” the court stated: “As our 

analysis above discusses,...we do not agree that the first three factors weigh heavily 

in Frye’s favor; therefore, Frye is not relieved of the requirement that he 

 

14 Nevertheless, the Court of Criminal Appeals’s determination that this factor weighed 

“only slightly in Frye’s favor” appears to be reasonable, given the approximately 9-month 

delay between Frye’s arrival in Alabama and his first motion for speedy trial. See Lamar, 

562 F. App'x at 806 (“The district judge...made a lesser finding that the assertion factor 

was neutral, which was not clearly erroneous, because Lamar asserted his right to a speedy 

trial approximately three months after he was arrested. See United States v. Ingram, 446 

F.3d 1332, 1338 (11th Cir. 2006) (weighing the third factor against the government where 

the defendant asserted his right to a speedy trial soon after learning of the indictment and 

arrest warrant).”).

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22

demonstrate that the delay prejudiced him.” (Id.). Requiring Frye to show actual 

prejudice when the first three Barker factors did not all weigh heavily against the 

State was not contrary to clearly established Supreme Court precedent, as the 

Eleventh Circuit has reached the same conclusion. See Parris, 542 F. App'x at 852 

(“If the first three Barker factors do not weigh heavily against the government, the 

defendant generally must demonstrate actual prejudice. United States v. Dunn, 345 

F.3d 1285, 1296 (11th Cir. 2003) (‘In this circuit, a defendant generally must show 

actual prejudice unless the first three factors ... all weigh heavily against the 

government.’) (quotation omitted).”); Rogers v. Hall, 567 F. App'x 873, 879 (11th Cir. 

May 30, 2014) (per curiam) (unpublished) (“[A] defendant...‘generally must show 

actual prejudice where the first three factors do not weigh heavily against the 

[State].’ See United States v. Villarreal, 613 F.3d 1344, 1357 (11th Cir. 2010).”), cert. 

denied, Rogers v. Sellers, 135 S. Ct. 452 (2014); Reed v. Farley, 512 U.S. 339, 353 

(1994) (“A showing of prejudice is required to establish a violation of the Sixth 

Amendment Speedy Trial Clause, and that necessary ingredient is entirely missing 

here. See Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2191-92, 33 L. Ed. 2d 

101 (1972) (four factors figure in the determination of Sixth Amendment speedy 

trial claims; one of the four is ‘prejudice to the defendant’).”).

As stated above, the undersigned has already determined that the Court of 

Criminal Appeals’s decision to not heavily weigh the “reason for delay” Barker 

factor against the State was reasonable based on clearly established federal law. 

Thus, even if the “assertion of right” Barker factor should have weighed heavily 

Case 1:14-cv-00192-CG-N Document 9 Filed 05/04/15 Page 22 of 31
23

against the State, Frye would still have been required to demonstrate prejudice due 

to the delay.

4. Prejudice Due to Delay

The Supreme Court has observed that “unreasonable delay between formal 

accusation and trial threatens to produce more than one sort of harm, including 

‘oppressive pretrial incarceration,’ ‘anxiety and concern of the accused,’ and ‘the 

possibility that the [accused's] defense will be impaired’ by dimming memories and 

loss of exculpatory evidence.” Doggett, 505 U.S. at 654 (quoting Barker, 407 U.S. at 

532). “Of these forms of prejudice, ‘the most serious is the last, because the 

inability of a defendant adequately to prepare his case skews the fairness of the 

entire system.’ ” Id. (quoting Barker, 407 U.S. at 532). “Consideration of prejudice 

is not limited to the specifically demonstrable, and...affirmative proof of 

particularized prejudice is not essential to every speedy trial claim. Barker

explicitly recognized that impairment of one's defense is the most difficult form of 

speedy trial prejudice to prove because time's erosion of exculpatory evidence and 

testimony can rarely be shown.” Id. at 655-56 (citations and quotation omitted).

In addressing the “prejudice” factor, the Court of Criminal Appeals, after 

noting the above-mentioned types of “harm” set forth in Doggett, stated:

Frye makes a summary assertion that his pretrial incarceration was 

oppressive; although he does not specifically assert how it was 

oppressive, in the trial court, among other things, he alleged that he 

was not allowed to bring his computer and documentary evidence from 

the Philippines with him, and he asserted that he had limited access to 

legal resources.

Nothing indicates, however, that the State had any involvement in the 

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24

decision to disallow Frye to bring his computer and other evidence with 

him. Furthermore,...the trial court made certain that Frye understood 

what he was doing in waiving his right to the pretrial assistance of 

appointed counsel (Frye accepted the appointment of standby counsel 

for assistance at trial), and the trial court made good-faith efforts to 

ensure that Frye had sufficient access to adequate legal resources.

Frye also asserts “that he had little to no recollection of the relevant 

events and issues of all those transactions he was alleged to have 

known about and Frye had no evidence as it was missing or lost.” Frye 

claims that

“[i]mportant and pertinent documents and communication ... 

were missing (namely Defendant’s Exhibit 1--Summary of 

Understanding that all Complainants would have needed to sign 

to prove they had a Deferred Compensation plan) (R. 312, 450, 

475, 493, 520) as Mr. Von Kanel testified to the need for signed 

plan documents (R. 400) as well as witnesses for Frye were not 

able to be found and Frye could not recall enough to present a 

defense so he could try to rebut evidence at trial that was 

supplied solely by the State (even Defendant’s exhibits were 

from State’s discovery.”

At trial, however, Frye did not dispute that the agents in this case in 

fact had deferred-compensation plans. Moreover, Frye does not 

explain specifically why the “summary of understanding” was essential 

to his case. Given that the other three factors do not all weigh heavily 

against the State, Frye’s allegations of prejudice are insufficient to 

demonstrate that he was entitled to a dismissal of the charges against 

him on the basis that his speedy-trial rights were infringed.

(Doc. 5-14 at 11 – 12 (citations omitted)).

The Court of Criminal Appeals reasonably determined that Frye’s vague 

assertions of faded memories and lost or missing evidence caused by the delay were 

insufficient to show prejudice.15 See United States v. Loud Hawk, 474 U.S. 302, 315 

 15 Frye now attempts to explain that the “summaries of understanding” were “the only 

contract between Century 21 (employer of the complainants/victims) and the agents (the 

alleged victims) to legally show their relationship and prove agents had bought a deferred 

compensation plan as the state had to prove” and were thus essential to his “main rebuttal, 

as he did not get to present a defense to the agent’s testimony, was the fact they (agents) 

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25

(1986) (“The Court of Appeals gave little weight to the fourth factor, prejudice to 

respondents. At most, the court recognized the possibility of impairment of a fair 

trial that may well result from the absence or loss of memory of witnesses in this 

case. That possibility of prejudice is not sufficient to support respondents' position 

that their speedy trial rights were violated. In this case, moreover, delay is a twoedged sword. It is the Government that bears the burden of proving its case beyond 

a reasonable doubt. The passage of time may make it difficult or impossible for the 

Government to carry this burden.” (citations and quotation omitted)); United States 

v. Hayes, 40 F.3d 362, 366 (11th Cir. 1994) (“Hayes argues that one witness was 

unable to recall certain events in her trial testimony. Beyond this, he asserts only a 

vague allegation that he was prejudiced by the ‘erosion of exculpatory evidence and 

testimony.’ ... Such conclusory allegations do not establish the required showing of 

prejudice to prevail under the plain error standard. This court has consistently held 

that conclusory assertions of prejudice, including unsubstantiated allegations of 

witnesses' faded memories, are insufficient to constitute proof of actual prejudice.”). 

Additionally, Frye’s “summary assertion” of oppressive pretrial incarceration 

“evidence[s] nothing extraordinary about his confinement. The Third Circuit has 

stated, ‘We do not believe ... that pretrial detention, coupled with a fourteen and 

one-half month delay, permits an automatic inference of enough prejudice to 

balance that factor in a petitioner's favor without proof of substandard conditions or 

 

had no ownership in the John Hancock life insurance policy and therefore, it was not their 

money and therefore, it was not a security--but since Frye could not conclusively show this 

Summary of Understanding to the jury, this prejudiced his defense...” (Doc. 1-1 at 11 – 12). 

Even accepting this as true, it is insufficient to overcome the deference this Court must give 

the judgment on the Alabama courts under AEDPA.

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other oppressive factors beyond those that necessarily attend imprisonment.’ 

Hakeem v. Beyer, 990 F.2d 750, 761 (3d Cir. 1993) (emphasis added). [Frye] does not 

explain how the conditions of his pretrial confinement were different from the 

unpleasant conditions that ordinarily attend imprisonment.” Beard v. Sec'y for 

Dep't of Corr., 161 F. App'x 824, 828 (11th Cir. Dec. 30, 2005) (per curiam) 

(unpublished). Moreover, Frye is at least partially to blame for the specific 

“oppressive” conditions he complained of in state court – inability to access his 

computer and documentary evidence from the Philippines with him, and limited 

access to legal resources – because, despite being a pretrial detainee, he chose to 

discharge his appointed counsel and represent himself.

In sum, Frye “has not shown that the state court's decision was contrary to or 

an unreasonable application of federal law; rather he simply quibbles with the state 

court’s application of the Barker factors. This is insufficient to entitle him to habeas 

relief.” Jackson v. Benton, 315 F. App'x 788, 793 (11th Cir. Feb. 23, 2009) (per 

curiam) (unpublished). Accordingly, the undersigned finds that Frye is due no relief 

on his habeas petition and will RECOMMEND that it be DENIED.

IV. 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. 

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

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. Frye 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 

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

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)16; 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).17

V. 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). 

 16 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.).

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

(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 Frye in this action would be without merit and 

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

appeal in forma pauperis.

VI. Conclusion

In accordance with the foregoing analysis, the undersigned RECOMMENDS

that Frye’s habeas petition (Doc. 1) be DENIED, that this action be DISMISSED 

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

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

forma pauperis.18

VII. 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); Rule 8(b) of the Rules Governing Section 2254 Cases in the United 

States District Courts; 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 

 18 As such, it is further RECOMMENDED that Frye’s Motion for Report and 

Recommendation docketed October 7, 2014 (Doc. 7), praying that the Court “require the 

magistrate judge to make a report and recommendation regarding this cause without 

further delay and...find Frye’s right to a speedy trial was violated and grant his relief 

without further delay” be DENIED as moot.

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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 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 4th day of May 2015.

/s/ Katherine P. Nelson

KATHERINE P. NELSON

UNITED STATES MAGISTRATE JUDGE

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