SHARON LOVELACE BLACKBURN, Senior District Judge.
This case is presently pending before the court on Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2241, (doc. 1),
While serving a 50-year prison sentence in Louisiana, petitioner was indicted by a grand jury in Tuscaloosa County, Alabama, for two rapes occurring in July 1977.
Following his convictions, petitioner remained in Alabama. In November 1981, he testified at as hearing on another Alabama inmate's petition for writ of error coram nobis. See Howton v. State, 432 So.2d 548, 549 (Ala. Crim. App. 1983). He confessed to the assault for which this inmate, Roger Dale Howton, had been convicted. Id. He subsequently recanted his confession at a hearing in February 1982. Id. While in Alabama, he was transferred to the ADOC at the Kilby Prison Hospital on February 1, 1982. (Doc. 13-1 at 9.) He was assigned an inmate number and given a sentence-calculation sheet showing a "sentence computation date" of October 6, 1981, the date of his conviction in case CC-81-2. (Id. at 6, 9.) The sentence-calculation sheet showed petitioner's "short date" for release as January 7, 2066, and a "long date" of January 7, 2151. (Id.) Petitioner was returned to Louisiana from the Fayette County Jail on or about March 10, 1982. (Doc. 1 at 19.) The ADOC lodged a detainer with Louisiana authorities in early 1984.
As petitioner approached the completion of his Louisiana sentence, prison officials in that state sent notice to Alabama, dated June 18, 2007, that petitioner would complete his Louisiana sentence on August 2, 2007. (Doc. 13-1 at 2, 12.) The notice indicated that a waiver of extradition would be sent to the petitioner for his execution. (Id. at 12.) Petitioner did not sign the waiver of extradition, and, on August 16, 2007, Alabama governor Bob Riley signed and sent to Louisiana a Request for Executive Rendition, requesting the return of petitioner to Alabama for the service of his sentence on two counts of rape. (Doc. 1 at 20.) On September 24, 2007, Louisiana governor Kathleen Babineaux Blanco issued her executive warrant "to arrest and aid and assist in arresting said fugitive [petitioner] and to deliver the said fugitive when arrested to" agents of the State of Alabama for return. (Id. at 21.)
Petitioner arrived in ADOC custody on October 3, 2007. (Doc. 13-1 at 13.) ADOC recalculated his sentence. (Id.) He received credit for 422 days of service toward his 20-year sentence and 126 days of service toward his 150-year sentence. (Id.) His Inmate Summary as of 07/13/2011, shows his "short date" for release is August 5, 2091, and his "long date" for release is August 5, 2176. (Id.)
On a date not made clear by the record, petitioner filed his petition for a state writ of habeas corpus in the Circuit Court of Limestone County. That court dismissed the petition on December 9, 2011, writing:
(Doc. 13-2 at 2.) The Alabama Court of Criminal Appeals affirmed summarily the dismissal of the state petition and the Alabama Supreme Court denied certiorari review. (Doc. 13-3; doc. 13-4.)
Petitioner filed the instant federal Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 on March 4, 2014.
In his § 2241 petition, petitioner raises two claims related to the service of his 170-year sentence in Alabama. As to Claim One, he alleges that he "was erroneously released from Alabama prison and is entitled to credit for time spent at large after being erroneously released by State officials." (Doc. 1-1 at 6.) In support of this claim, he alleges that he "was found guilty in Tuscaloosa on October 6, 1981, then on February 2, 198[2] the county jail of Tuscaloosa County[,] Alabama, took [petitioner] to Kilby Correctional Facility to serve his 170 years in Alabama instead of tak[ing him] back to Louisiana prison. [Petitioner's] good time started and should have run while he was at large in the Louisiana prison system." (Id. at 7.) In Claim Two petitioner asserts that he "was released from Alabama Prison Custody of DOC[, which was erroneously done, [and] that his release[ ] was no fault of his own." (Id.) In support of the claim, he states, "The plaintiff was entered into the Alabama Department of Corrections on February 1, 1982 and then ejected from the state by Fayette County, when taken back to the Louisiana Prison. This was done on March 10, 1982." (Id.) The court construes these allegations to state two claims for relief: (1) petitioner was denied "good time" credits against his Alabama sentence while serving his Louisiana sentence because he started serving his Alabama sentence before being returned to Louisiana; and (2) Alabama constructively pardoned him or otherwise lost jurisdiction over him for service of his Alabama sentence when the state returned him to Louisiana after admitting him to the ADOC and commencing his Alabama sentence.
Petitioner's first claim for habeas relief contends that he has been denied good time credits to which he is entitled against the service of his 170-year sentence. Specifically, he claims that, because his crimes of conviction occurred prior to 1980, he was entitled to both Statutory Good Time [SGT] and Incentive Good Time [IGT] under Alabama law applicable to his convictions, and that these credits accrued on the date he first was admitted to the ADOC on February 1, 1982. Respondents deny petitioner is entitled to any relief on this claim because he was never entitled to IGT and that, in fact, he has been credited with 85 years of SGT, which is all the time to which he is entitled.
Before May 19, 1980, good time credit applicable to service of sentences in Alabama came in two forms, under two distinct statutes. A prisoner sentence for a crime occurring before 1980 could be entitled to both SGT, pursuant to Ala. Code §§ 14-9-1 through 14-9-4 (repealed), and IGT under Ala. Code §§ 14-9-20 through 14-9-25 (repealed). Under the SGT statute, a prisoner was automatically credited, on the first day of his sentence, with one day of SGT credit for every day the prisoner was anticipated to serve. This meant that SGT worked a 50% reduction of the imposed sentence on the first day served, subject to that credit being revoked, in whole or in part, for disciplinary reasons. By contrast, the IGT statute authorized the ADOC to award up to two IGT-credit days for every day served by "exceptional" prisoners. Section 14-9-21 provided, in relevant part: "The board of corrections is hereby empowered to create within the existing classification system a new classification system which would authorize a maximum deduction from the term of the sentence of an exceptional inmate of two days for each one day served." See Carlile v. Alabama Dep't of Corr., 887 So.2d 1010, 1012 (Ala. Crim. App. 2003). Unlike SGT, which was automatically credited, IGT was discretionary with the ADOC and was credited only as the prisoner served each day of his sentence. See, e.g. Risner v. State, 522 So.2d 336, 337 (Ala. Crim. App. 1988)(inmate must "earn" IGT through actual service of sentence). Thus, while SGT had the effect of automatically reducing a prisoner's sentence by half, IGT credits accumulated, if at all, only as the prisoner served actual days in prison. For every day served, an "exceptional" inmate could, in the ADOC's discretion, be awarded two IGT-credit days for every day served, thereby reducing his sentence by three days for every day actually served (i.e., one day of actual service plus two days of IGT credit).
In the instant case, petitioner has been awarded his full SGT. The sentence-calculation sheets provided both by petitioner and the ADOC reflect that he has been credited with 85 years against his 170-year sentence. Even with that credit, his minimum release date, or "short date," is in 2066. Thus, there has been no miscalculation with respect to the SGT component of his claim for "good time" credit, and he not entitled to habeas relief on this basis.
Also, the court finds no error with respect to the IGT because petitioner was not entitled to accrue those credits while he was not actually serving his Alabama sentence. From March 10, 1982, when he was returned to Louisiana to serve his sentence, until October 3, 2007, when he was returned to the ADOC upon extradition from Louisiana, petitioner was not serving his Alabama sentence; he was serving his Louisiana sentence to which the Alabama sentence was consecutive. Under the IGT statute, petitioner could not accrue additional IGT credits until he was serving the Alabama sentence. While he was in Louisiana, he was not serving the Alabama sentence and, thus, not eligible for any additional IGT credit. Moreover, even if petitioner had received IGT credits since he began serving his Alabama sentence,
The Petition will be denied as to this ground for relief.
Petitioner's second claim asserts that, when Alabama returned petitioner to Louisiana in 1982 to continue serving a sentence there, it constructively pardoned him or otherwise lost jurisdiction to require him to return to Alabama to re-start serving the 170-year sentence imposed on October 6, 1982, or, alternatively, that it is required to credit him with the time he served in Louisiana against the Alabama sentence.
Although the record is not entirely clear, respondents assert that Alabama "borrowed" petitioner from Louisiana in 1981 to prosecute him with respect to the two rape indictments returned in 1979 by the Tuscaloosa County grand jury.
There are several theories under which the execution of a lawfully imposed sentence may become unlawful, but it is unclear in this case upon which of these the petitioner relies. The petitioner seems to argue that Alabama lost its jurisdiction to require him to serve the 170-year sentence when it returned him to Louisiana to resume serving the 50-year sentence imposed in that state. He also seems to argue that Alabama must give him credit for the time he was in Louisiana as "credit while at liberty." However, neither of these theories support petitioner's claim.
Insofar as petitioner contends that Alabama "released" or constructively pardoned him to Louisiana, he has failed to prove that he was ever released — erroneously or otherwise. Petitioner was brought to Alabama from Louisiana to face Alabama charges. At the time, he was serving a 50-year sentence in Louisiana. Following the trials in Alabama, petitioner received sentences totaling 170 years. These sentences were to be served after petitioner completed his Louisiana sentence. After he was convicted and after he gave testimony in another case in Alabama, petitioner was returned to Louisiana to continue serving that sentence.
Citing United States v. Martinez, petitioner appears to argue that he was "at liberty" after he was returned to Louisiana in 1982 and is entitled "to credit toward his Alabama [sentence] from February 25, 1982[,] the date he was erroneously released from [ADOC] rather than being extradited back as a fugitive to the custody of the [ADOC in 2007]." (Doc. 1 at 5.) The court finds petitioner has failed to prove he was ever "at liberty" at any time between his conviction in Louisiana and today. See Scott v. United States, 434 F.2d 11, 22 (5th Cir. 1970)(describing petitioner as "at liberty" when he was released from custody and "was allowed to go out into the free world"). Until returned to Alabama in 2007, he was serving the Louisiana sentence, even while he was loaned to Alabama for purposes of prosecution and testimony.
A district court in Georgia has explained the "time at liberty" doctrine's origins as follows:
Goins v. Hickey, No. CV207-135, 2008 WL 3819830, at *5-*6 (S.D. Ga. Aug. 13, 2008).
Petitioner, quoting United States v. Martinez, 837 F.2d 861, 865 (9th Cir. 1988), contends:
(Doc. 1 at 6 [footnote added].) Petitioner argues that he was released from ADOC custody after he began serving his sentence in 1981. (Id. at 7.) He argues, without support and contrary to the evidence, that "from March 10, 1982 [until] August 16, 2007[,] neither George [nor] the State of Louisiana . . . had [any] indication that George was wanted by Alabama authorities. George further asserts that Alabama authorities had opportunities to know of his whereabouts and/or to file a proper warrant or detainer." (Id. at 9.)
The Eleventh Circuit has made clear that the "credit for time at liberty" doctrine does
United States v. Barfield, 396 F.3d 1144, 1147-48 (11th Cir. 2005)(internal footnotes omitted). The same is true here.
The evidence of record does not support a finding that petitioner began serving his Alabama sentences in 1981 or a finding that he has been at liberty at any time since he was convicted in Louisiana. As set forth above, following petitioner's return to Louisiana, the state of Alabama requested Louisiana to file a detainer on petitioner based on his conviction on the two rape cases; Louisiana agreed. (Doc. 13-1 at 10-11.) During his time in Alabama, petitioner remained a Louisiana prisoner, with Louisiana retaining the right to require the full execution of his sentence in that state before surrendering him to Alabama. Because his Alabama's sentences were consecutive to the Louisiana sentence, petitioner did not start to serve his Alabama sentences until he was released by Louisiana after he had satisfied its sentence in 2007. The court finds petitioner did not begin to serve his Alabama sentences until his return to Alabama in 2007.
The Petition is due to be denied as to any claim based on petitioner's alleged entitlement to credit against his Alabama sentences for time served in Louisiana.
Petitioner contends that Alabama waived his sentences by returning him to Louisiana in 1982. Although the Eleventh Circuit has recognized the doctrine of waiver of jurisdiction by a state, it has limited such a waiver to unusual circumstances due to affirmative or gross misconduct by state officials rising to the level of a due process violation. The court has written:
We explained:
Mobley, 823 F.2d at 1496-97 (alteration in original)(quoting Piper, 485 F.2d at 246).
United States v. Barfield, 396 F.3d 1144, 1148-49 (11th Cir. 2005).
The facts in the instant case fail to show such affirmative wrongdoing or grossly negligent conduct by any Alabama officials that might arguably rise to the level of being "unequivocally inconsistent with `fundamental principles of liberty and justice.'" Mobley, 823 F.2d at 1496-97. Alabama officials "borrowed" petitioner from Louisiana to prosecute him on two rape charges and for him to testify in another case. After conviction and his testimony in the other matter, Alabama returned petitioner to Louisiana to continue serving that sentence. In 1984, Alabama requested that Louisiana place a detainer on petitioner and Louisiana did. (Doc. 13-1 at 10-11.) In 2007, petitioner, having satisfied his Louisiana sentence, was extradited to Alabama. Nothing in the record shows that Alabama officials' conduct was wrong, much less "unequivocally inconsistent" with principles of due process.
The Petition will be denied as to petitioner's claim that Alabama waived its jurisdiction over him by returning him to Louisiana to complete his sentence.
Based on the foregoing considerations, the court finds that the petitioner is not entitled to § 2241 habeas corpus relief with respect to his Alabama sentence. He is not entitled to release from that sentence, even with all proper SGT and IGT good time credits being applied. An Order denying Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2241, (doc. 1), and dismissing the instant action with prejudice will be entered contemporaneously with this Memorandum Opinion.
Rule 11 of the Rules Governing § 2254 Proceedings, provides, "The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." The applicant for habeas corpus relief "cannot take an appeal unless a circuit justice or a circuit or district judge issues a certificate of appealability under 28 U.S.C. § 2253(c)." Fed. R. App. P. 22(b)(1). And, the "certificate of appealability may issue . . .
For the reasons set forth above, the court finds that Mr. Brumfield has not demonstrated that he was denied any constitutional right or that the issues he raises are reasonably debatable and/or deserve encouragement to proceed further. Therefore, the court finds the issuance of a certificate of appealability is not warranted in this case.
The Certificate of Appealability will be denied.
Medberry v. Crosby, 351 F.3d 1049, 1062 (11th Cir. 2003). Clearly, petitioner is in the custody of ADOC because he was convicted in state court. Therefore, although he asserted his Petition is not governed by § 2254, this court's authority to issue the writ is constrained by that section. See id. at 1059-60.
