Wroten v. Gordy et al

Filing 17

ORDER ADOPTING 11 REPORT AND RECOMMENDATION w/additional comments & factual MODIFICATIONS as set out. Pet's 8 Petition for Writ of Habeas Corpus is DISMISSED as time-barred as set out. Signed by Senior Judge Callie V. S. Granade on 4/19/2017. (copy mailed to Pet on 4/20/17) (tot)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
FREDERICK WROTEN,
AIS 260584,
Petitioner,
vs.
WARDEN GORDY and
THE STATE OF ALABAMA,
Respondents.

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) CIVIL ACTION NO. 16-00406-CG-C
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ORDER

This matter is before the Court on Petitioner Frederick Wroten’s objections
(Doc. 14; Doc. 15) to the Magistrate Judge’s Report and Recommendation (“R & R”)
(Doc. 11), which recommends that Wroten’s federal habeas corpus petition filed
pursuant to 28 U.S.C. § 2241 be dismissed as time-barred under the Anti-Terrorism
and Effective Death Penalty Act’s (“AEDPA”) one-year statute of limitation
provision contained within 28 U.S.C. § 2244(d). Having considered Wroten’s
objections, the Court ADOPTS the R & R with the factual MODIFICATIONS
discussed below.
In reviewing a magistrate judge’s report and recommendation, the district
court “shall make a de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is made.” 28
U.S.C. § 636(b)(1). “‘Parties filing objections to a magistrate’s report and
recommendation must specifically identify those findings objected to. Frivolous,

conclusive, or general objections need not be considered by the district court.’”
United States v. Schultz, 565 F.3d 1353, 1361 (11th Cir. 2009) (per curiam) (quoting
Marsden v. Moore, 847 F.2d 1536, 1548 (11th Cir. 1988)). Absent objection, the
district judge “may accept, reject, or modify, in whole or in part, the findings and
recommendations made by the magistrate judge,” 28 U.S.C. § 636(b)(1), and “need
only satisfy itself that there is no clear error on the face of the record in order to
accept that recommendation,” Fed. R. Civ. P. 72, Advisory Committee Note 1983
Addition, Subdivision (b). Further, “the district court has broad discretion in
reviewing a magistrate judge’s report and recommendation” —it “does not abuse its
discretion by considering an argument that was not presented to the magistrate
judge” and “has discretion to decline to consider a party’s argument when that
argument was not first presented to the magistrate judge.” Williams v. McNeil, 557
F.3d 1287, 1290–92 (11th Cir. 2009).
1. Wroten’s Objections
In McQuiggin v. Perkins, the Supreme Court held that actual innocence, if
proved, may serve as a gateway through which a petitioner may bring an untimely
federal habeas petition that might otherwise be barred based on a petitioner’s
failure to comply with the one-year statute of limitation contained within 28 U.S.C.
§ 2244(d) of the AEDPA. --- U.S. ---, 133 S. Ct. 1924, 1928 (2013). Wroten attempts
to circumvent the untimeliness of his petition by way of McQuiggin; additionally,
the Magistrate Judge relied upon McQuiggin in the R & R. Applying the holding
from McQuiggin, the Magistrate Judge concluded that Wroten could not shelter

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under the actual-innocence-gateway exception and, for this and other reasons,
recommended Wroten’s petition dismissed. Wroten raises two objections to this
conclusion. First, Wroten argues the Magistrate Judge misinterpreted McQuiggin
by finding an actual-innocence claim proper only under newly discovered evidence.
(Doc. 14, pp. 2, 4, 5). Instead, Wroten continues, McQuiggin “clearly [ ] held that
newly discovered evidence is not” necessary to overcome a failure to comply with the
one-year statute of limitation within 28 U.S.C. § 2244(d)(1)(A). Id. at 4. Therefore,
the Magistrate Judge’s citation to Schlup v. Delo, 513 U.S. 298, 327 (1995), and San
Martin v. McNeil, 633 F.3d 1257 (11th Cir. 2011), pre-McQuiggin cases which
require new evidence, is improper. Id. at 4.
The Court has reviewed McQuiggin and finds Wroten’s objection without
merit. To be sure, the McQuiggin Court based its decision upon three affidavits
that included statements not previously presented at trial. 133 S. Ct. at 1929. In
other words, the McQuiggin Court based its decision on new evidence.
Furthermore, in finding the new affidavits sufficient to invoke the actual-innocencegateway exception, the McQuiggin Court, interestingly enough, quoted Schlup. See
133 S. Ct. at 1935 (“‘[A] petitioner does not meet the threshold requirement unless
he persuades the district court that, in light of the new evidence, no juror, acting
reasonably, would have voted to find him guilty beyond a reasonable doubt.’”)
(quoting Schlup, 513 U.S. at 324). This begs the question as to why the McQuiggin
Court would rely on Schlup, in fact use the term “new evidence” from Schlup, but,
as Wroten insists, not really mean that a petitioner must produce new evidence to

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invoke the actual-innocence-gateway exception. Quiet simply, the Supreme Court
would not. To conclude otherwise would be nonsensical, and the Court will not
indulge in the legal legerdemain necessary to reach this conclusion. Moreover, since
McQuiggin was decided, the Eleventh Circuit Court of Appeals has articulated that
the actual-innocence-gateway exception requires “new reliable evidence … that was
not presented at trial.” Rozzelle v. Sec’y, Fla. Dep’t of Corrs., 672 F.3d 1000, 1011
(11th Cir. 2012). Thus, Wroten’s objection that the Magistrate Judge misapplied,
misinterpreted, or overlooked the law is OVERRULED.
Turning to Wroten’s second objection to the Magistrate Judge’s actualinnocence-gateway exception recommendation, Wroten asserts that the Magistrate
Judge misstated the facts of this case, which renders the recommendation
erroneous. (Doc. 14, p. 5). The accurate facts, he continues, establish that he
indeed satisfied the actual-innocence-gateway exception. Id. Two “trustworthy
eyewitnesses” unequivocally testified at trial that the sexual offenses in question
did not occur, which is the evidence necessary to invoke this exception. Id. at 4, 9.
Thus, his untimeliness in bringing the present federal habeas petition is excused.
The Court has compared the facts used by the Magistrate Judge with the
facts within Wroten’s Petition and DECLINES TO ADOPT the following portion of
the facts within the R & R. The Magistrate Judge reasoned that Wroten supports
his actual-innocence-gateway claim with “the trial testimony of the victim—his exwife—as well as the trial testimony of an eyewitness [to] establish that the firstdegree sexual abuse offenses never happened.” (Doc. 11, p. 7) (citation omitted). A

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review of Wroten’s Petition shows that the ex-wife was not the victim in the state
court proceeding but, instead, an eyewitness to one of the underlying offenses. (Doc.
8-1, p. 15). Additionally, the victim (presumably Wroten’s step-daughter) also
testified in the state court proceeding. Thus, the proper factual analysis should
have read as follows: Wroten “contends that the trial testimony of [an eyewitness]—
his ex-wife—as well as the trial testimony of [the victim], establish that the firstdegree sexual abuse offences” never occurred.
But even making the factual corrections to the relevant analysis does not
invalidate the Magistrate Judge’s legal conclusion under McQuiggin. It is
undisputed that both of Wroten’s self-described “trustworthy eyewitnesses” 1
testified at trial, regardless of who is and is not the victim or eyewitness. So this is
not the type of credible evidence necessary to satisfy the McQuiggin actualinnocence-gateway exception. Instead, no matter how Wroten tries to spin it, he
simply makes a sufficiency of the evidence (legal innocence) argument. A
sufficiency of the evidence argument is distinctly different from an actual-innocence
argument and not enough to satisfy McQuiggin. Thus, Wroten’s objection to the
McQuiggin actual-innocence-gateway exception analysis in the R & R is
OVERRULED.

The Court finds Wroten’s repeated use of the legal buzzwords “trustworthy
eyewitness” in making his actual-innocence argument ironic. These buzzwords are
not something the McQuiggin Court used, but the Schlup Court did. See Schlup,
513 U.S. at 324 (reasoning that an actual-innocence claim “requires petitioner to
support his allegations of constitutional error with new reliable evidence—whether
it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical
physical evidence—that was not presented at trial).
1

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The Magistrate Judge also concluded that Wroten could not equitably toll the
one-year statute of limitation contained within 28 U.S.C. § 2244(d)(1)(A) pursuant
to Holland v. Florida, 560 U.S. 631 (2010). The Magistrate Judge reasoned that
“Wroten’s own lack of due diligence is responsible for the untimeliness of the filing
of the instate petition.” (Doc. 11, p. 14). Wroten objects to this conclusion and
submits that the exhibits and “record establishes that [he] was delayed by the
intentional misrepresentations” of his attorney and “misled” by the same “for a
period of years.” (Doc. 14, p. 7). This, he insists, prevented him from filing within
the one-year limitation period, which tolled § 2244(d)(1)(A).
The Court finds no fault in the Magistrate Judge’s conclusion that Wroten is
not due equitable tolling of the one-year § 2244(d)(1)(A) limitation period. If
anything, the evidence Wroten points to in his objections underscores the
correctness of the analysis in the R & R. For instance, Janice Watkins “attests”
that she assumed responsibility for Wroten’s finances in March of 2013 and that, in
such capacity, she called James Scroggins[, Wroten’s appellate attorney,] and was
informed that “he no longer represented [Wroten] and was only hired to file the
state appeal and he would need to hire another attorney to file the federal appeal
because he didn’t do federal appeals…. We took possession of his transcript and
papers regarding his trial and took them to Atty Fansler[, an Ohio attorney,] to look
over.” (Doc. 14, pp. 14–15). As for Wroten’s daughter, Angela Bump, she simply
penned a “To Whom it may concern” letter in which she states she retained
Attorney Scroggins in August of 2008 for Wroten after being told “he would go as far

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and do as much as he could for” Wroten. Id. at 16. Bump goes on to state that on
some unknown date she “got a call from [her] Father saying that Mr. Scroggins had
contacted him and that he was done with the case.” Id. The only “timeline” that
makes sense with respect to the just-referenced call between Wroten and Bump is
the general time period attested to by Watkins inasmuch as the last piece of
“evidence” Wroten attaches to his objections, which is an April 11, 2013 letter
penned by Scroggins and correctly addressed to Wroten, prisoner number 260584,
at the Limestone Correctional Facility.2 The substance of Scroggins’s letter reads in
its entirety:
I am in receipt of your letter post-marked April 8, 2013. You
should be aware that my representation ended with the affirmance of
your conviction in the appellate courts of Alabama. I do not represent
you in any matters pending in federal court although I wish you well in
your efforts.
(Doc. 14, p.17). This timeline supports the Magistrate Judge’s conclusion that
“there is simply no indication that Wroten diligently inquired of his attorney,
particularly during the [relevant] period from June 3, 2010 to June 3, 2011,
concerning the filing of a § 2254 petition and the need to file it by not later than
June 3, 2011.” (Doc. 11, p. 13).
Furthermore, Wroten did not begin immediately attacking his convictions in
state court or federal court even after the April 11, 2013 letter. Instead, he (or his
family members listed above) hired an Ohio attorney to try and get trial transcripts.

The contact information for Wroten listed in the attorney’s letter is the same as
Wroten himself lists in the Petition (Doc. 8) and in the Objection (Doc. 14). Thus,
the Court is assured of Wroten’s proper receipt of the letter.
2

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Said attorney apparently kept the transcripts for over a year. Quiet simply, Wroten
failed to exercise any alacrity whatsoever and, indeed, did not file his postconviction petition in state court pursuant to Rule 32 of the Alabama Rules of
Criminal Procedure until March of 2015, some twenty-three months after Attorney
Scroggins penned the above letter. The present Petition did not follow suit until
May 6, 2016, just shy of thirty-seven months after the same letter. So even if the
evidence produced or actions taken could show (and they do not) due diligence,
there is no indication Wroten exercised such diligence during the relevant period of
time explained by the Magistrate Judge. Thus, the Court OVERRULES Wroten’s
third objection to the R & R because, as the Magistrate Judge correctly concluded,
Wroten’s own lack of due diligence is responsible for the untimeliness of his current
federal habeas petition.
Wroten also argues that the Magistrate Judge erred by not reviewing the
“fundamental constitutional rights” Wroten contends were violated in state court.
(Doc. 14, p. 10). This objection is quickly dismissed. It is foundational that the
actual-innocence-gateway exception or equitable-tolling issue is a threshold matter
that must be evaluated before the merits of an untimely petition may be considered.
See Schlup, 513 U.S. at 317 (reasoning that actual innocence justifies “a review of
the merits of the constitutional claims”). Given this, there is no error by the
Magistrate Judge in proceeding no further than finding the Petition time-barred.
Any objection otherwise is hereby OVERRULED.
2. Wroten’s “Amended Objections”

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As a last matter, Wroten filed a motion to amend his objections to the R & R.
(Doc. 15). The Court finds these “amended objections” provide no basis to set the
Magistrate Judge’s R & R aside for two reasons. First, Wroten, for the most part,
rehashes his earlier objections and adds no substance, much less amendments, to
objections already raised. Thus, the “amendments” are DENIED as frivolous.
Second, Wroten proceeds to argue, in a seemingly preemptive fashion, that the
Petition should be considered because he committed no procedural default in state
court. This argument is non-responsive because the R & R did not rely upon the
presence of a procedural default in recommending Wroten’s petition be dismissed.
3. Conclusion
Based on the foregoing, the Court hereby ADOPTS the Report and
Recommendation of the Magistrate Judge (Doc. 11) with these additional comments
and the factual MODIFICATIONS outlined above. It is ORDERED that
Petitioner Frederick Wroten’s Petition for Writ of Habeas Corpus (Doc. 8), filed
pursuant to 28 U.S.C. § 2241 but clearly subject to the restrictions set forth in 28
U.S.C. § 2254, is DISMISSED as time-barred pursuant to 28 U.S.C. §
2244(d)(1)(A).
DONE and ORDERED this 19th day of April, 2017.

/s/ Callie V. S. Granade
SENIOR UNITED STATES DISTRICT JUDGE

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