Harris v. Gordy, Civil Action Number: 5:15-cv-01112-VEH-JEO

CourtUnited States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
Writing for the CourtVIRGINIA EMERSON HOPKINS United States District Judge
PartiesTERRY HARRIS, Petitioner, v. CHRISTOPHER GORDY, Warden of Limestone Correctional Facility, Respondent.
Docket NumberCivil Action Number: 5:15-cv-01112-VEH-JEO
Decision Date01 November 2017

TERRY HARRIS, Petitioner,
CHRISTOPHER GORDY, Warden of Limestone Correctional Facility, Respondent.

Civil Action Number: 5:15-cv-01112-VEH-JEO


November 1, 2017


While imprisoned at the Limestone Correctional Facility in Harvest, Alabama, Petitioner Terry Harris, then acting pro se, filed this action seeking a federal writ of habeas corpus. (Doc.1 1). He challenges his convictions on eight counts of violating various provisions of the Alabama Securities Act ("ASA"), Ala. Code § 8-6-1 et seq. (1975), entered following a jury trial in the Circuit Court of Jefferson County, Alabama, in 2011. On June 16, 2017, the magistrate judge to whom the case was referred entered a report pursuant to 28 U.S.C. § 636(b) recommending that the court deny the petition on the ground that Harris's claims

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are without merit. (Doc. 20 ("R&R")). On July 31, 2017, Harris, now acting through retained counsel, filed a 50-page objection to the magistrate judge's 12-page R&R. (Doc. 25 ("Objections" or "Obj.")). Upon consideration, the court concludes that Harris's objections are due to be overruled and that the magistrate judge's findings and recommendation are due to be adopted.


In May 2007, a Jefferson County, Alabama, grand jury returned a 12-count indictment against Harris, charging that he acted "contrary to law" in violating various enumerated provisions of the ASA. (Doc. 3, ¶ 7(a); id. at 15-18). Following a jury trial in the Jefferson County Circuit Court, Birmingham Division, Harris was convicted on eight of the counts, as follows: one count charging sale of unregistered securities in violation of Ala. Code § 8-6-4, one count charging failure to register as an investment advisor in violation of Ala. Code § 8-6-3(b), and six counts charging securities fraud in violation of Ala. Code § 8-6-17. (Doc. 3, ¶ 7(f); id. at 15-19). In March 2011, the trial court sentenced Harris to ten years' imprisonment on the count charging sale of unregistered securities, five years on the count charging failure to register, and ten years on each of his six securities fraud convictions. (Doc. 3, ¶ 7(g); id. at 20-36). The court ordered that

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the 10-year sentences on the securities fraud counts run concurrently with each other, but that the 10-year sentence for sale of unregistered securities and the 5-year sentence for failing to register would run consecutively, both to each other and to the securities-fraud sentences. (Id.) Accordingly, the court sentenced Harris to a total term of 25 years imprisonment.

Harris filed a notice of appeal, but the Alabama Court of Criminal Appeals dismissed his appeal on July 10, 2012, because Harris failed to file a brief. (Doc. 7-5). Harris sought no further direct review. Harris thereafter sought post-conviction relief by way of a host of state-law habeas corpus petitions filed in various state courts, including the Circuit Court of Limestone County where he was imprisoned, the Circuit Court of Jefferson County where he was sentenced, and in both the Alabama Court of Criminal Appeals and the Alabama Supreme Court. All of those efforts were unsuccessful.


Harris filed this pro se habeas corpus action on or about June 30, 2015, purporting to rely exclusively upon the general federal habeas statute, 28 U.S.C. § 2241. (Doc. 1). In his now-governing amended petition, Harris raises seven enumerated "Grounds for Relief." First, he insists that the state trial court acted "without jurisdiction" in his criminal case, because his indictment "charged non-

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criminal offenses," insofar as the counts failed to allege specifically as a necessary mens rea element that his violations of state securities laws were committed "willfully." (Doc. 3, ¶ 7). Second, Harris attacks his charging document, again contending that the state trial court acted "without jurisdiction," this time because the indictment allegedly was not endorsed "A True Bill" by the foreperson of the grand jury. (Id., ¶ 8). Harris's third, fourth, and fifth claims, in turn, posit that the alleged "jurisdictional" defects in his indictment outlined in his first and second grounds mean that his criminal judgment is "void" and that his convictions and imprisonment therefore violate the Due Process Clause of the Fourteenth Amendment (id., ¶ 9), the Cruel and Unusual Punishments Clause of the Eighth Amendment (id., ¶ 10), and the Equal Protection Clause of the Fourteenth Amendment (id., ¶ 11). Finally, in his sixth and seventh claims, Harris argues that he is entitled to federal habeas relief because the Alabama Supreme Court violated his rights under the Due Process Clause and other unspecified federal constitutional provisions based upon that Court's summary denial of his state habeas corpus petition in December 2013. (Doc. 3, ¶¶ 12, 13).

In response, the magistrate judge entered an order pursuant to Castro v. United States, 540 U.S. 375 (2003), advising Harris that, although he appeared to rely exclusively upon § 2241 as authorizing his habeas petition, the court intended

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to treat his application as also being governed by 28 U.S.C. § 2254, on the basis that he is "a person in custody pursuant to the judgment of a State court" for purposes of 28 U.S.C. § 2254(a). (Doc. 4). The magistrate judge then proceeded to enter an order requiring to the State to show cause why Harris is not entitled to habeas relief. (Doc. 6).

The State answered, asserting that Harris is not entitled to relief because: (1) his petition was untimely under 28 U.S.C. § 2244(d), the one-year statute of limitations applicable to habeas petitions filed by state prisoners under § 2254; (2) his claims were procedurally defaulted because they were not properly raised and exhausted in the State courts; and (3) his "convictions and sentences were validly and constitutionally obtained." (Doc. 7, ¶¶ 5-7). After Harris filed a reply (Doc. 9), the magistrate judge entered a report recommending that the court accept the State's argument that Harris's petition is time-barred. (Doc. 10). Harris objected and provided additional documentation regarding his prior attempts to obtain post-conviction relief in the state courts. (Doc. 13). That prompted the magistrate judge to withdraw his report and recommendation to consider further whether Harris might be entitled to a period of tolling of the limitations period under 28 U.S.C. § 2244(d)(2) that would render his application timely. (Doc. 14).

On June 16, 2017, the magistrate judge entered his second, now-pending

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report and recommendation. First, he concluded that, although it appeared that Harris had been released from prison since first filing the action, his claims were not moot, so the court retained jurisdiction. From there, the magistrate judge recommended that the court bypass the State's defenses based on the statute of limitations, exhaustion, and procedural default. Instead, the magistrate judge found it to be more expedient simply to deny Harris's claims on the merits. In so doing, the magistrate judge analyzed those claims as follows:

Harris's first five "Grounds for Relief" are all founded on a theory that alleged defects in his indictment deprived the state trial court of subject-matter jurisdiction, i.e., the lawful power and authority, to try, convict, and sentence him for violations of Alabama criminal law. As a result, Harris says, the state court judgment purporting to authorize his custody is "void," thereby engendering violations of his federal constitutional rights to due process and equal protection, as well as the prohibition against cruel and unusual punishments. It might be assumed, purely for the sake of argument, that Harris is correct that his indictment was defective because it did not allege a necessary mens rea element of the charged criminal offenses under Alabama law and because it was not indorsed [sic] as a "true bill" and signed by the grand jury foreperson. Even so, Harris's premise that such defects deprived the trial court of jurisdiction is simply wrong, as a matter of both Alabama state law and federal law. See Ex parte Seymour, 946 So. 2d 536, 537-39 (Ala. 2006) (an indictment's failure to allege a necessary element of mens rea is a non-jurisdictional defect under state law); United States v. Brown, 752 F.3d 1344, 1351 (11th Cir. 2014) (same, under federal law); In re Goulden, 299 So. 2d 325, 326 (Ala. 1974) (failure of grand jury foreman to endorse indictment as true bill did not deprive circuit court of jurisdiction so as to render judgment void); Frisbie v. United States, 157 U.S. 160, 163-65 (1895) (an objection that the

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indictment lacks the indorsement [sic] "A true bill" as well as the signature of the foreman of the grand jury is non-jurisdictional and may thus be waived).

Moreover, federal habeas relief is not available based upon an error of state law unless such error also gives rise to a violation of federal law. Swarthout v. Cooke, 562 U.S. 216, 219 (2011). And on that score, the alleged indictment defects of which Harris complains could only amount, at most, to errors of Alabama law and do not implicate the United States Constitution. For starters, because the Fifth Amendment's guarantee of indictment by grand jury does not apply to the States, Alexander v. Louisiana, 405 U.S. 625, 633 (1972), the sufficiency of a state indictment is [an] primarily a matter of state law. Tapia v. Tansy, 926 F.2d 1554, 1560 (10th Cir. 1991); Franklin v. White, 803 F.2d 416, 418 (8th Cir. 1986). Thus, in this circuit, "the sufficiency of a state indictment is issue on federal habeas corpus only if the indictment is so deficient that the convicting court was deprived of jurisdiction." Heath v. Jones, 863 F.[2]d 815, 821 (11th Cir. 1989); see also Mira v. Marshall, 806 F.2d 636, 639 (6th Cir. 1986) ("An indictment which fairly but imperfectly informs the accused of the offense for

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