Dykes v. Redington

• Decision Date: 23 April 2020
• Docket Number: CA 19-0274-CG-MU
• Court: U.S. District Court — Southern District of Alabama
• Parties: HAROLD S. DYKES, Petitioner, v. WARDEN DAN REDINGTON, Respondent.

HAROLD S. DYKES, Petitioner, v. WARDEN DAN REDINGTON, Respondent.

CA 19-0274-CG-MU

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

April 23, 2020

REPORT AND RECOMMENDATION

Harold S. Dykes, a state prisoner presently in the custody of the Respondent,¹ has petitioned this Court for federal habeas corpus relief pursuant to 28 U.S.C. § 2254. This cause is before the Magistrate Judge for issuance of a report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B) and S.D. Ala. GenLR 72(a)(2)(R), on Dykes' petition for writ of habeas corpus with attachments (Doc. 1), the answer of the Respondent with attachments (Doc. 9), Petitioner's reply to the Answer (Doc. 11), and Petitioner's supplement to his reply (Doc. 13). Petitioner challenges a probation violation arrest warrant, issued in 2003 but not yet executed, claiming that his Fourteenth Amendment Due Process rights have been violated based on theunreasonable delay in execution of the warrant, which he claims has resulted in prejudice and the waiver of jurisdiction by the Mobile County Circuit Court over any long-ago alleged probation violation.²

PROCEDURAL AND FACTUAL BACKGROUND

On March 12, 2002, Dykes entered a counseled guilty plea to second-degree robbery and was sentenced to a term of 15-years' imprisonment; however, this sentence was suspended pending good behavior for five years after which the suspension of his sentence was to become permanent. (See Doc. 1, Appendix, Exhibit A, Docket Sheet). Thereafter, multiple delinquency reports were filed against Dykes (see Doc. 9, Exhibit 2A, Docket Sheet), "with the fourth and final delinquency report being issued on March 27, 2003." (Doc. 9, Exhibit 11, at 2; compare id. with Doc. 9, Exhibit 2A, Docket Sheet).

A probation revocation hearing was set for April 23, 2003. Dykes failed to appear. A writ of arrest was issued on April 25, 2003, and the case was placed on the administrative docket, to be reset when Dykes was apprehended.

(Doc. 9, Exhibit 11, at 2; compare id. with Doc. 1, Appendix, Exhibit B).

The first docket sheet entry after the April 25, 2003 issuance of the writ of arrest was on April 18, 2016, when Dykes filed a written request for certified notification to be sent to the Missouri Department of Corrections records department verifying that no outstanding warrant existed. (See Doc. 9, Exhibit 1A).³ This request was set down for a hearing on May 17, 2016, for the Court to receive an update from the Probation Office on the outstanding writ of arrest; after receiving information at the hearing that Dykes had not reported to the Alabama State Probation Officer since 2003 and the there was an outstanding writ of arrest, the Court entered an order on May 18, 2016 denying Dykes' request. (See id.).

On June 13, 2016, Dykes filed a written request for final disposition of the probation violation warrant of arrest without a hearing and his presence; Dykes specifically requested that the warrant be withdraw and his probation reinstated to run concurrent with his present sentence in Missouri or, alternatively, that his probation be revoked and allow his sentence to run concurrent with his Missouri sentence. (See id.). This request was denied by written order entered on June 23, 2016. (See id.).

On June 12, 2017, Dykes filed a motion to dismiss the warrant due to unjustified tolling of the limitations period under Ala. Code § 15-22-54(a); this motion was denied by written order entered that same day. (Compare id. with Doc. 9, Exhibit 1A). Dykes filed an amended motion to dismiss on September 12, 2017, which was set for ahearing on October 5, 2017 and, thereafter, denied by written order dated that same day (See id.).

On or about November 6, 2017, Dykes filed a petition for writ of mandamus or, in the alternative, for prohibition in the Alabama Court of Criminal Appeals to compel Mobile County Circuit Judge Ben Brooks to grant his amended motion to dismiss and order his unconditional release from probation. (See Doc. 9, Exhibit 3). As the Alabama Court of Criminal Appeals observed, Dykes' motion, to dismiss (as amended), as well as the subsequent mandamus petition, were "premised on Dykes's argument that probation-revocation proceedings were initiated against him in 2003, that an arrest warrant was issued for the probation revocation, and that the arrest warrant has not been served on him in the intervening 14 years." (Doc. 9, Exhibit 5, at 1). Alabama's appellate court construed Dykes' petition solely as a petition for writ of mandamus and dismissed it on February 28, 2018 as untimely filed. (Doc. 9, Exhibit 5). Dykes filed this same petition in the Alabama Supreme Court on March 20, 2018 (Doc. 9, Exhibit 6) and Alabama's high court denied the petition on May 3, 2018 (Doc. 9, Exhibit 7).

Dykes filed a petition for writ of prohibition in the Alabama Court of Criminal Appeals on June 7, 2018, seeking

to prevent . . . Ben H. Brooks, circuit court judge for Mobile County, Alabama, from assuming [] jurisdiction [] he does not possess, as the State of Alabama waived jurisdiction over Dykes' probation violation charges, in that, the State's arbitrary and capricious actions or inactions rise to the level of gross negligence required for a waiver pursuant to well-established precedent when the State failed to make even a single attempt to reacquire custody of Dykes upon his release from official custody on 4 separate occasions over a period of 15 years. As a result, Dykes has suffered the most serious type of prejudice in the loss of witnesses and evidence for his defense. This violates Dykes' rights todue process, as guaranteed by the Alabama Constitution and the 14th Amendment, U.S. Constitution.

(Doc. 9, Exhibit 8, at 2). The Alabama Court of Criminal Appeals denied Dykes' petition for writ of prohibition on October 24, 2018. (Doc. 9, Exhibit 11).

Dykes contends he is entitled to a writ of prohibition preventing Judge Brooks from scheduling a hearing in this 15-year-old probation-revocation matter. Dykes, citing U.S. v. Barfield, 396 F.3d 1144 (11th Cir. 2005), argues that the State's actions or inactions rise to the level of gross negligence constituting a waiver of jurisdiction. Dykes claims that over a period of 15 years, his whereabouts were known or readily ascertainable.

In Jones v. State, 158 So.3d 500 (Ala.Crim.App.2014), this Court recognized that the

initiation of proceedings to revoke probation, such as the issuance of an arrest warrant or the filing of a delinquency report by a probation officer, . . ., tolls the running of the probationary term if the process is begun before the probationary term ends, . . ., and a trial court retains jurisdiction to revoke probation even after the probationary period has expired so long as the revocation proceedings were initiated within the maximum probationary term.

158 So.3d at 503 (quoting Woodward v. State, 3 So.3d 941, 944 (Ala.Crim.App. 2008) (citations omitted)).

Here, Dykes pleaded guilty to [second]-degree robbery and was sentenced to 15 years in prison on March 12, 2002. Dykes' sentence was suspended and he was ordered to serve five years on probation. Multiple delinquency reports were issued against Dykes, with the fourth and final delinquency report being issued on March 27, 2003. A probation-revocation hearing was set for April 23, 2003. Dykes failed to appear. A writ of arrest was issued on April 25, 2003, and the case was placed on the administrative docket, to be reset when Dykes was apprehended. Thus, the revocation proceedings were initiated well within the probationary term of five years for Dykes.

In United States v. Barfield, 396 F.3d 1144, 1149 (11th Cir. 2005), the United States Court of Appeals for the Eleventh Circuit held:

[In order for a delay in the execution of a sentence to be repugnant to the Fourteenth Amendment,] it is not sufficientto prove official conduct that merely evidences a lack of eager pursuit or even arguable lack of interest. Rather the waiving state's action must be so affirmatively wrong or its inaction so grossly negligent that it would be unequivocally inconsistent with fundamental principles of liberty and justice to require a legal sentence to be served in the aftermath of such action or inaction.. . .

Dykes has failed to establish that the State's inaction was so affirmatively wrong or so grossly negligent as to be inconsistent with the fundamental principles of liberty and justice to require him to serve his full sentence.

A writ of prohibition is the appropriate vehicle to challenge a lower court's actions on the basis that its actions exceeded its jurisdiction. SeeEx parte City of Leeds, 849 So.2d 251, 253 (Ala.Crim.App. 2002). In order to prevail on a petition for a writ of prohibition, the petitioner must show: (1) that there has been an usurpation or abuse of power, (2) that there is no other remedy at law, (3) that the petitioner has suffered injury, and (4) that the question has been presented to the inferior court. . . . Dykes has failed to make the showings required for issuance of a petition for writ of prohibition, consequently, this petition is DENIED.

(Id. at 1-3 (most internal citations, brackets, ellipses, and quotation marks omitted)). Dykes filed this same petition in the Alabama Supreme Court on November 7, 2018 (Doc. 9, Exhibit 13) and Alabama's high court denied the petition for writ of prohibition on December 13, 2018 (Doc. 9, Exhibit 14).

Dykes filed his petition seeking habeas corpus relief in this Court on June 5, 2019 (Doc. 1, at 12) to challenge a probation violation arrest warrant, issued in 2003 but not yet executed, claiming that his Fourteenth Amendment Due Process rights have been violated based on the unreasonable delay in execution of the warrant, which he claims has resulted in prejudice and the waiver of jurisdiction by the Mobile County Circuit Court over him and any alleged probation violation.

CONCLUSIONS OF LAW

A. Standard of Review for § 2254 Petitions...