Jackson v. State of Ala.

• Citation: 530 F.2d 1231
• Decision Date: 30 April 1976
• Docket Number: Nos. 75--1186,75--1879,s. 75--1186
• Parties: Arthur JACKSON, Jr., Petitioner-Appellant, v. STATE OF ALABAMA, Respondent-Appellee. Jasper Lee COOKS, Petitioner-Appellant, v. CIRCUIT COURT OF MOBILE COUNTY, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1231

530 F.2d 1231

Arthur JACKSON, Jr., Petitioner-Appellant, v. STATE OF ALABAMA, Respondent-Appellee.

Jasper Lee COOKS, Petitioner-Appellant, v. CIRCUIT COURT OF MOBILE COUNTY, Respondent-Appellee.

Nos. 75--1186, 75--1879.

United States Court of Appeals, Fifth Circuit.

April 30, 1976.

Rehearing and Rehearing En Banc

Denied Aug. 16, 1976.

See 536 F.2d 1113.

Robert R. Bryan, Birmingham, Ala., Larry W. Yackle, University, Ala., for petitioners-appellants.

William J. Baxley, Atty. Gen., Montgomery, Ala., David L. Weathers, Asst. Atty. Gen., Birmingham, Ala., G. Daniel Evans, Asst. Atty. Gen., Montgomery, Ala., for respondent-appellee in No. 75--1186.

William A. Golinsky, Asst. Atty. Gen., William J. Baxley, Atty. Gen., Gary R. Maxwell, G. Daniel Evans, Asst. Attys. Gen., Montgomery, Ala., for respondent-appellee in No. 75--1879.

Appeals from the United States District Courts for the Northern and Southern Districts of Alabama.

Before GODBOLD, SIMPSON and CLARK, Circuit Judges.

SIMPSON, Circuit Judge:

Appellants, Arthur Jackson, Jr. and Jasper Lee ('Tiny') Cooks, appeal from the denial by two separate Alabama federal district courts of their respective petitions for writs of habeas corpus. The only issue presented by Jackson and one of two issues presented by Cooks is whether an indigent Alabama state prisoner unable to make bond due to indigency and who is sentenced to less than the statutory maximum sentence for his offense is entitled to credit on his sentence for the period of pre-trial or presentence detention. Cooks makes an additional contention: that he is entitled to credit against his sentence for the time he spent in custody pending direct appeal of his conviction, because of asserted unconstitutionality of the Alabama statutory scheme, ¹ which automatically suspends the execution of sentence pending appeal unless the appellant elects otherwise. We affirm the denials of both petitions for habeas corpus on the authority of binding prior decisions of this court. See United States v. Automobile Club Ins. Co., 5 Cir. 1975, 522 F.2d 1; Linebery v. United States, 5 Cir. 1975, 512 F.2d 510.

The underlying facts as to the appellants' claims are briefly as follows: On September 1970, Jackson was arrested and charged with first degree murder, Title 14, Section 314, Code of Alabama. Bail was fixed at $5,000, which Jackson contends he was unable to meet due to indigency. On August 19, 1972, however, after having spend approximately 23 months in custody awaiting trial Jackson made bond and was released. In a jury trial on April 20, 1973, Jackson was convicted of murder in the second degree, an included offense under the Alabama Statute, and was sentenced by the jury to 18 years imprisonment in the state penitentiary. Title 14, Section 318, Code of Alabama, provides that the sentence for second degree murder is within the discretion of the jury, provided that the term of imprisonment shall not be for less than 10 years in the state Appellant Cooks was arrested on June 28, 1971, for burglary in the first degree, Title 14, Section 85, Code of Alabama. Bail was set at $15,000 on February 14, 1972. Cooks alleges he was unable to post bail due to his indigency. He was held in pre-trial detention for 283 days at the Mobile City and County Jails. Cooks was convicted at a jury trial on April 6, 1972 and sentenced to serve the statutory minimum sentence for first degree burglary of ten years in the state penitentiary, ³ Title 14, Section 85, Code of Alabama. After the entry of judgment and sentence, Cooks filed a notice of appeal which under Alabama law automatically suspends execution of the sentence. Bail pending appeal was set at $10,000, which Cooks alleges he was unable to meet due to indigency. On April 26, 1972, he was transferred from the Mobile County Jail pursuant to court order to the State's Medical and Diagnostic Center at Mt. Meigs, Alabama. He remained at Mt. Meigs until June 28, 1973, when he was transferred to the Alabama State Penitentiary at Homan, Alabama.

penitentiary. Jackson did not appeal directly from his conviction, and did not seek state post-conviction relief by habeas corpus, error coram nobis or otherwise. Instead on September 11, 1974, he petitioned the court below for habeas corpus relief. ² His petition asserted that Jackson was entitled to credit toward the service of his 18 year sentence for the 23 months he was held in pre-trial custody, averring that the denial of such credit by the State contravened: (i) the double jeopardy clause of the Fifth Amendment, applicable to the states under the Fourteenth Amendment; (ii) the Eighth Amendment, cruel and unusual punishment, applicable to the states under the Fourteenth Amendment; (iii) the due process and equal protection clauses of the Fourteenth Amendment. The district judge denied the petition holding that under the decisions of this court in Cobb v. Bailey, 5 Cir. 1972, 469 F.2d 1068, and Gremillion v. Henderson, 5 Cir. 1970, 425 F.2d 1293, Jackson was not entitled to credit for pre-sentence jail time.

Cooks' conviction was affirmed by the Alabama Court of Criminal Appeals on February 13, 1973, and certiorari review was denied by the Alabama Supreme Court on April 19, 1973. Cooks v. State, 1973, 50 Ala.App. 49, 276 So.2d 634, cert. denied 1973, 290 Ala. 363, 276 So.2d 640. Since Cooks did not elect to take a 'working' appeal under Alabama law his ten year sentence did not begin to run until April 19, 1973, the date on which the Alabama Supreme Court denied certiorari review of his conviction. Therefore, Cooks received no credit for the 387 days which he spent in post-trial custody pending appeal. His right to credit against his ten year sentence for these 387 days is the second issue raised by Cooks' appeal.

In June 1973, Cooks filed two pro se petitions for the writ of error coram nobis in the Mobile County Circuit Court collaterally attacking his conviction and seeking credit on the service of his sentence for the time he spent in post and pre-trial confinement. These petitions were denied by the trial judge. ⁴

On April 2, 1974, Cooks filed his habeas petition in the court below urging four separate grounds for relief. One of the grounds ⁵ urged by Cooks in support of his habeas petition was that he had been unlawfully denied credit toward service of his ten year sentence for the periods he was held in Mobile City and County Jails prior to trial and at the county jail and the facility at Mt. Meigs during the pendency of his appeal. The district court denied relief holding (1) that since Cooks had received a minimum sentence of ten years under the statute credit for pre-trial detention was not required, citing Cobb v. Bailey, supra; Hill v. Wainwright, 5 Cir. 1972, 465 F.2d 414; Hart v. Henderson, 5 Cir. 1971, 449 F.2d 183; and (a) that since he had not opted for a 'working' appeal he was not entitled to credit for post-trial incarceration, citing Duke v. Blackwell, 5 Cir. 1970, 429 F.2d 531; Tandler v. Blackwell, 5 Cir. 1969, 412 F.2d 780.

PRE-SENTENCE JAIL TIME

The issue common to both appeals then is whether an indigent criminal defendant held in custody in a local jail prior to trial and sentencing due to his inability to post bail is entitled to credit for pre-sentence detention time upon the sentence ultimately imposed after conviction. The appellants' position is that the equal protection clause and the due process clause of the Fourteenth Amendment require that the State grant such credit, that denial thereof constitutes an unconstitutional restriction upon a criminal defendant's exercise of the right to a jury trial under the Sixth and Fourteenth Amendments, and further constitutes cruel and unusual punishment prohibited by the Eighth Amendment. In support of these contentions the appellants rely on decisions of other circuits which hold that a State must grant credit to an indigent criminal defendant for all pre-sentence custody time even when the combined period of confinement (actual sentence plus time spent in pre-sentence custody) does not exceed the statutory maximum sentence proscribed for an offense. See King v. Wyrick, 8 Cir. 1975, 516 F.2d 321; Ham v. North Carolina, 4 Cir. 1971, 471 F.2d 406; Monsour v. Gray, E.D.Wis.1973, 375 F.Supp. 786; White v. Gilligan, S.D.Ohio 1972, 351 F.Supp. 1012. We are bound by prior decisions in this circuit on this issue and hence decline to follow the rationale of the cited cases.

Gremillion v. Henderson, supra, was the first case in which we considered The Supreme Court held in Williams v. Illinois that an indigent criminal defendant may not be confined beyond the statutory maximum term of imprisonment provided for a given offense because of his inability to pay a fine and court costs. Noting that although a state has wide latitude in fixing the punishment for state crimes, the Court stated: 'once the State has defined the outer limits of incarceration necessary to satisfy its penological interests and policies, it may not then subject a certain class of convicted defendants to a period of imprisonment beyond the statutory maximum solely by reason of their indigency'. Ibid at 241--42, 90 S.Ct. at 2022, 26 L.Ed.2d at 593 (emphasis supplied). Following Williams v. Illinois, the Court in Tate v. Short, supra, held that since the State of Texas had 'legislated a 'fines only' policy for traffic offenses, that statutory ceiling cannot, consistently with the Equal Protection Clause, limit the punishment to payment of the fine if one is able to pay it, yet convert the fine into a prison term for an indigent defendant without the means to pay his fine.' Tate v. Short, supra at 399, 91 S.Ct. at 671, 28 L.Ed.2d at 133--34 (emphasis added).

whether a state prisoner may be granted federal habeas corpus relief allowing credit on his sentence for time spent in custody prior to sentencing. We held that the State prisoner's claim was not cognizable under federal habeas corpus...