Graham v. Jones

• Decision Date: 23 March 2016
• Docket Number: Civil Action No. 1:13cv882-WHA (WO)
• Parties: TEQUAN SABRE' GRAHAM, # 256057, Petitioner, v. KARLA JONES, et al., Respondents.
• Court: U.S. District Court — Middle District of Alabama

TEQUAN SABRE' GRAHAM, # 256057, Petitioner, v. KARLA JONES, et al., Respondents.

Civil Action No. 1:13cv882-WHA (WO)

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

March 23, 2016

RECOMMENDATION OF THE MAGISTRATE JUDGE

Before the court is a petition for writ of habeas corpus under 28 U.S.C. § 2254 filed by Alabama inmate Tequan Sabre' Graham ("Graham"). Doc. No. 1.¹ Graham challenges matters related to (1) the revocation of his probation by the Circuit Court of Houston County on December 13, 2010, and (2) his 2007 second-degree burglary conviction in that court and resulting 20-year sentence.

I. BACKGROUND²

Conviction, Sentence, and (Untimely) Direct Appeal

On November 5, 2007, Graham pled guilty in the Circuit Court of Houston County to a charge of second-degree burglary, in violation of § 13A-7-6, Ala. Code 1975. On November 28, 2007, Graham applied for probation. That same day, the trial court deniedGraham's request for probation and sentenced him to 20 years' imprisonment, to be served in a community-corrections program. However, on December 20, 2007, after it was informed that the community-corrections program refused to allow Graham, the trial court removed Graham from the program and ordered him to serve his 20-year sentence in a state penitentiary.

On February 25, 2008, Graham filed a notice of appeal, which the Alabama Court of Criminal Appeals dismissed as untimely filed. Doc. Nos. 9-2 and 9-5. That court issued a certificate of judgment on April 17, 2008. Doc. No. 9-5.

Rule 32 Petition of May 6, 2008 (Regarding Conviction and Sentence)

On May 6, 2008, Graham filed a petition for post-conviction relief under Rule 32 of the Alabama Rules of Criminal Procedure challenging his conviction and sentence. In the petition, Graham alleged:

(1) His guilty plea was involuntary.

(2) His trial counsel was ineffective.

(3) The trial court lacked authority to remove him from community corrections.

(4) He failed to timely appeal through no fault of his own.

Doc. No. 9-19 at 5-35.

After the State responded, the trial court summarily dismissed Graham's Rule 32 petition. See Doc. No. 9-6 at 1.

Appeal from Denial of Rule 32 Petition of May 6, 2008

Graham appealed from the denial of his Rule 32 petition. By order dated September 10, 2008, the Alabama Court of Criminal Appeals remanded the case for the trial court to issue specific written findings of fact regarding the merits of Graham's claims and, if necessary, to conduct an evidentiary hearing on those claims. Doc. No. 9-6.

While the case was on remand, Graham filed an amendment to his Rule 32 petition presenting an additional claim of ineffective assistance of counsel. Graham also filed a motion with the trial court to reconsider its denial of his request for probation. On February 17, 2009, the trial court conducted a hearing on Graham's motion to reconsider the denial of his probation. Doc. No. 9-20 at 60-64. Following the hearing, the trial court granted Graham's request for probation, suspended his 20-year sentence, and placed him on probation for three years. Id. at 63. Graham's counsel then indicated that, with the grant of probation, Graham wished to withdraw his Rule 32 petition. Id.

The trial court submitted its return to remand with the Alabama Court of Criminal Appeals on March 26, 2009. By order dated April 24, 2009, the Alabama Court of Criminal Appeals remanded the case a second time for the trial court to conduct a hearing and to "make written findings of fact as to whether Graham knowingly and voluntarily decided not to pursue his Rule 32 petition." Doc. No. 9-7. On May 5, 2009, the trial court conducted a hearing, at which Graham affirmatively indicated that he wanted to withdraw his appeal from the summary dismissal of his Rule 32 petition since he had been granted probation. Doc. No. 9-21 at 13-20.

The trial court submitted its second return to remand with the Alabama Court of Criminal Appeals on June 4, 2009. By order dated June 19, 2009, the Alabama Court of Criminal Appeals dismissed as moot Graham's appeal from the summary dismissal of his Rule 32 petition, and issued a certificate of judgment. Doc. No. 9-8.

Probation Revocation and Appeal from Revocation

On July 1, 2010, Graham's probation officer filed a delinquency report alleging that Graham violated the terms and conditions of his probation by committing the new offense of receiving stolen property. See Doc. No. 9-23 at 6-9. A probation-revocation hearing was held on December 13, 2010, after which the trial court revoked Graham's probation and reinstated his 20-year sentence. Doc. No. 9-24 at 3-33.

Graham appealed from the revocation of his probation, alleging:

(1) The State's evidence was insufficient to warrant revoking his probation.

(2) The record was unclear as to the reason for the trial court's revocation of his probation.

(3) The record was unclear as to whether the trial court had the authority to sentence him to confinement for more than the three-year probationary term.

Doc. No. 15-1.

In an unpublished memorandum opinion issued on September 23, 2011, the Alabama Court of Criminal Appeals affirmed the trial court's revocation of Graham's probation, finding:

(1) There was ample evidence before the trial court for it to reasonably conclude that Graham violated the terms of his probation.

(2) It was clear from the trial court's written findings that the court found sufficient evidence Graham violated his probation by committing a new criminal offense.

(3) It was clear from the record that the trial court was authorized to reinstate Graham's original sentence of 20 years' imprisonment after revoking his probation.

Doc. No. 9-10.

Graham applied for rehearing, which was overruled on October 14, 2011. Doc. No. 15-2; Doc. No. 9-11. He then filed a petition for writ of certiorari with the Alabama Supreme Court, which that court denied on December 9, 2011, issuing a certificate of judgment that same day. Doc. No. 15-3; Doc. No. 9-13.

Rule 32 Petition of February 18, 2012

On February 18, 2012, Graham filed a Rule 32 petition, claiming:

(1) The trial court erred in allowing evidence of collateral crimes at the revocation hearing.

(2) The evidence at the revocation hearing was insufficient to warrant revoking his probation.

(3) The trial court erred by not granting him credit for all time he spent incarcerated for his second-degree burglary conviction.

(4) The trial court erred by ordering that he serve the remainder of his 20-year sentence although he was resentenced (on February 17, 2009) to only three years' imprisonment.

(5) Based on his assertions in claims (3) and (4), set out above, hewas being held in custody after expiration of his sentence.

Doc. No. 9-22 at 5-26.

On March 1, 2012, without receiving a response from the State, the trial court summarily dismissed Graham's Rule 32 petition, finding:

- claims (1) and (2), set out above, were precluded under Ala.R.Crim.P. 32.2(a)(4) because they were raised and addressed on Graham's appeal from the revocation of his probation;

- claim (3), set out above, was insufficiently pled; and

- claims (4) and (5), set out above, were meritless.

Doc. No. 9-22 at 32-33.

Appeal from Denial of Rule 32 Petition of February 18, 2012

Graham appealed from the denial of the Rule 32 petition, arguing:

(1) The trial court erred in not granting him credit for all time he spent incarcerated on his burglary conviction.

(2) The trial court erred in ordering that he serve the remainder of his 20-year sentence.

(3) He was being held in custody after expiration of his sentence.

Doc. No. 15-4.

In an unpublished memorandum opinion issued on August 19, 2012, the Alabama Court of Criminal Appeals affirmed the denial of Graham's Rule 32 petition. Doc. No. 9-14. Regarding Graham's claim that the trial court erred in not granting him credit for all the time he had spent incarcerated for the second-degree burglary conviction, the AlabamaCourt of Criminal Appeals held that the claim was not properly raised in a Rule 32 petition but instead should be presented in a state petition for writ of habeas corpus. Doc. No. 9-14 at 5. The appellate court further held that, in any event, the claim was meritless. Id.

The Alabama Court of Criminal Appeals found Graham's two remaining claims to center on his assertion that he was "resentenced" on February 17, 2009, to three years' imprisonment and placed on probation for those three years. Id. However, the appellate court found Graham's assertion in this regard to be "simply false" and that the trial court's placement of Graham on probation for three years did not alter his underlying 20-year sentence. Id. at 5-6. The Alabama Court of Criminal Appeals went on to observe - in a footnote - that the trial court lacked authority at the February 17, 2009, remand hearing to suspend Graham's 20-year sentence and place him on probation, as such actions were beyond the scope of the remand order and therefore void and, more generally, because a trial court's authority to suspend a sentence and place a person on probation terminates once that person has entered on service of his sentence. Id. at 6. However, the Alabama Court of Criminals found that the placement of Graham on probation did not alter or amend his underlying 20-year sentence and that, "because Graham is in the same position as he would have been had the circuit court not exceeded its authority in 2009 - he is serving his 20-year sentence in confinement," it was unnecessary to set aside the trial court's judgment of February 17, 2009. Id. at 6-7.

Graham applied for rehearing, which was overruled on October 14, 2011. Doc. No.9-11; Doc. No. 15-2. He then filed a petition for writ of certiorari with the Alabama Supreme Court, which that court denied on November 9, 2012, issuing a certificate of judgment the same day. Doc. No. 9-15; Doc. No. 18-6.

Rule 32 Petition of November 11, 2012

On November 11, 2012, Graham filed another Rule 32 petition, arguing:

(1) His trial counsel was

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