Hines v. Justice Wise
| Decision Date | 05 December 2016 |
| Docket Number | CIVIL ACTION 16-461-CG-N |
| Parties | THOMAS CURTIS HINES, Plaintiff, v. JUSTICE WISE, et al., Defendants. |
| Court | U.S. District Court — Southern District of Alabama |
Plaintiff Thomas Curtis Hines, who is proceeding pro se and in forma pauperis, filed a complaint under 42 U.S.C. §§ 1983, 1985, and 1986. This action has been referred to the undersigned for appropriate action pursuant to 28 U.S.C. § 636(b)(1)(B) and S.D. Ala. GenLR 72(a)(2)(S). After careful review, it is recommended that, prior to service of process, pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), the claims against defendants Joseph Thetford, Phillipe L. Hughes, Judge Braxton Kittrell, Judge Bowen, and Glenn L. Davidson be dismissed with prejudice as frivolous, and pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). It is further recommended that the claims against defendants Luther Strange, Madeline Lewis, Judge John Lockett, Ashley Rich, John Tason, Chris Galano, Mobile County Circuit Court, Kim Thomas, Cynthia White, Stan Dean, Bridgett Tyner, Anette Coleman, Department of Corrections Central Record Division, Cynthia Brown, Lauren Philyaw, Vivian McQueen, Michael Hoffman, Cynthia S. Dillard, Eddie Cook, Jr., Robert D. Oakes, William Wynn, Robert P. Longshore, Yilinda Weatherly, and Justices Wise, Shaw, Main, Moore, Parker, Bolin, Cobb, Lyons, Stuart, Murdock, and Welch be dismissed without prejudice for failure to state a claim upon which relief can be granted. See Troville v. Venz, 303 F.3d 1256, 1260 n.5 (11th Cir. 2002) ().
I. Complaint. (Doc. 1).
Hines is attacking his thirty-year sentence for possession of burglar's tools, Ala. Code § 13A-7-8, in this action. (Doc. 1 at 8). Hines was convicted of this offense on December 5, 1983, and completed serving his sentence on August 30, 2014. (Id. at 8, 11). Hines complains that a sentence for his conviction, a Class C felony, Ala. Code § 13A-5-6(A)(3), is one to ten years, not the thirty-year sentence he received. (Id. at 9).
Hines names numerous persons as defendants to his complaint, namely, Alabama appellate judges, Wise, Shaw, Main, Moore, Parker, Bolin, Cobb, Lyons, Stuart, and Murdock; Alabama Attorney General Luther Strange and Assistant Attorneys General, Madeline H. Lewis, Glenn L. Davidson, and Phillipe L. Hughes; Mobile County Circuit Court Judges Braxton L. Kittrell and John Lockett; Mobile County District Attorneys Ashley Rich, John Tason, and Chris Galano and Assistant District Attorney Joseph L. Thetford; defense attorney Glenn L. Davidson; Alabama Department of Corrections ("ADOC") Commissioner Kim Thomas and Warden Cynthia A. White; ADOC Central Records Division/Classification Division, Stan Dean, Bridgett Tyner, Anette Coleman, Cynthia Brown, Lauren Philyaw, Vivian McQueen, and Michael Hoffman; and State of Alabama Board of Pardons and Paroles members, Cynthia S. Dillard, Eddie Cook, Jr., Robert D. Oakes, William Wynn, Robert P. Longshore, and Yilinda Weatherly. (Id. at 1-7).
Even though Hines lists many defendants, he refers to very few defendants in his description of his claims. According to Hines's allegations, prosecutor Thetford failed toprove that the flashlight and pliers were intended to be used by him to commit a burglary or theft in order to support the charge for being in possession of burglar's tools. (Id. at 9). That is, no witness for the State testified that he committed or attempted to commit either offense, but yet the jury found him guilty of violating Alabama Code § 13A-7-8. (Id.). Immediately after the trial, he was sentenced. (Id.).
Present at the sentencing were Hines, Judge Kittrell, prosecutor Thetford, and defense counsel Davidson. (Id.). Hines alleges that they knew his conviction was a Class C felony, which had a maximum punishment of ten years in prison, Ala. Code § 13A-5-6(A)(3), inasmuch as no other provision of Alabama law had been invoked to increase the sentence beyond ten years. (Id.). Hines alleges that Thetford, Davidson, and Kittrell knew that sentencing him to an additional twenty years was a violation of his rights under the Eighth Amendment, Thirteenth Amendment, and Fourteenth Amendment. (Id. at 10). Because they were present and had the power to correct the sentence or bring it to the attention of the court, they "conspired" to remain silent and allowed him to go to prison on an illegal sentence. (Id. at 11).
After sentencing, Judge Kittrell appointed Davidson to represent Hines on appeal in order to keep the thirty-year sentence from being raised on appeal, to keep himself from being reversed, and to keep Davidson from being found to have violated Hines's Sixth Amendment right to effective assistance of counsel. (Id.).
On July 26, 1984, Davidson received a copy of Hines's trial transcript, which showed that Judge Kittrell had no authority to sentence Hines in excess of ten years. (Id. at 12 ). Nonetheless, Davidson filed a "no-merits" Anders brief, which concealed the thirty-year sentence and continued the "conspiracy." (Id.). Hines contends thatDavidson could have argued that based on the indictment for a Class C felony, Judge Kittrell had no authority to impose a thirty-year sentence; but instead, Davidson chose to violate his Sixth Amendment right to effective assistance of trial and appellate counsel. (Id. at 13).
After the "no-merits" brief was filed, Hines was allowed to file his own brief in which he raised two issues: 1) "insufficient evidence to support the conviction"; and 2) "a violation of [his] right to due process when the State failed to give notice of it[]s intent to treat [him] as a habitual offender." (Id.). Four of the five appellate judges ruled that his case should be remanded to Judge Kittrell for an evidentiary hearing on the sentencing claim. (Id. at 15). Judge Bowen dissented stating that the thirty-year sentence is legal, because Hines took the witness stand and "admitted [a] prior conviction for impeachment purposes." (Id.). Thus, Judge Bowen, relying on Wilson v. State, 428 So.2d 197, 201 (Ala. Crim. App. 1983), opined that the admission "waived the State['s] notice requirement of its intent to treat [Hines] as a habitual offender and its burden of proving [Hines's] prior conviction for enhancement purposes." (Id.). By issuing this dissent, Judge Bowen is alleged to have joined the "conspiracy." (Id.). Judge Bowen's opinion was "joined" by the Attorney General's Office and Charles Graddick1; thus, they also"joined" the ongoing conspiracy. (Id.).
In its "original" opinion, the appellate court ruled that Hines's claim of insufficient evidence was without merit and that his right to due process was violated when the State failed to give notice of its intent to treat him as a habitual offender and counsel did not object to the lack of notice, thereby waiving it. (Id. at 16). On February 14, 1985, an evidentiary hearing was held on the claim that Davidson rendered ineffective assistance of counsel when he failed to object to the State's lack of notice of its intention to treat Hines as a habitual offender. (Id. at 16, 17). To support this claim, Hines offered that he was not given notice and that Davidson, Judge Kittrell, and Thetford did not invoke the Habitual Offender Act2 prior to or during trial or prior to sentencing; therefore, his admission of prior convictions during the trial could only be used for the limited purpose of impeachment. (Id. at 16-17).
Present at the hearing were: Judge Kittrell, Thetford, assistant attorney Phillipe L. Hughes, and "new" Assistant Attorney General Glenn L. Davidson. (Id. at 17). In orderto prepare for the hearing, these defendants, Hines believes, had to have examined his trial transcript, the indictment with its charge and corresponding penalty, and Judge Kittrell's oral and written sentencing order. (Id.). As a consequence, these defendants knew that his thirty-year sentence was illegal because the trial transcript showed that the Habitual Offender Act was not invoked, Judge Kittrell did not sentence him as a habitual offender, and there was no authority to impose a thirty-year sentence when the maximum penalty was ten years. (Id.). Instead of correcting his sentence, he claims these defendants "conspired together to conceal the constitutional violation" to cause him to serve over thirty-two years in the State's custody.3 (Id. at 18).
For relief, Hines claims that he is entitled to a "judg[]ment against these Defendants." (Id. at 18).4 No other information is provided with respect to this request for relief.
II. Standards of Review Under 28 U.S.C. § 1915(e)(2)(B).
Because Hines is proceeding in forma pauperis, the Court is reviewing his complaint (Doc. 1) under 28 U.S.C. § 1915(e)(2)(B). Under § 1915(e)(2)(B)(i), a claim may be dismissed as "frivolous where it lacks an arguable basis in law or fact." Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831-32, 104 L.Ed.2d 338 (1989).5 A claim is frivolous as a matter of law where, inter alia, the defendants are immune from suit, id. at 327, 109 S.Ct. at 1833, or the claim seeks to enforce a right that clearly does not exist. Id.
Moreover, a complaint may be dismissed under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim upon which relief may be granted. Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997). To avoid dismissal for failure to state a claim upon which relief can be granted, the allegations must show plausibility. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 557, 127 S.Ct. 1955, 1966, 167 L.Ed.2d 929 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). That is, "[f]actual allegations must be enough to raise a right to relief above the speculative level" and must be a "'plain...
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