Powell v. Lightner

Decision Date20 April 2015
Docket NumberCivil Action No. 14-00064-CG-N
PartiesWILLIE JAMES POWELL, AIS # 00151747, Petitioner, v. WANDA LIGHTNER, Warden, Mobile Community Based Facility/Community Work Center, Respondent.
CourtU.S. District Court — Southern District of Alabama

Petitioner Willie James Powell ("Powell"), an Alabama prisoner proceeding pro se, has filed a Petition for Writ of Habeas Corpus by a Person in State Custody (Doc. 1). The Respondent timely filed an Answer (Doc. 14) to the petition, to which Powell has filed replies (Docs. 17, 21). Under SD ALA Local Rule 72.2(c)(4), this matter has been referred to the undersigned Magistrate Judge for entry of a recommendation as to the appropriate disposition, in accordance with 28 U.S.C. § 636(b)(1)(B)-(C) and Rule 8(b) of the Rules Governing Section 2254 Cases in the United States District Courts. Upon consideration, and for the reasons stated herein, it is RECOMMENDED that Powell's habeas petition (Doc. 1) be DISMISSED without prejudice for failure to exhaust his state court remedies. Should this recommendation be adopted, it is further RECOMMENDED that Powell be found not entitled either to a Certificate of Appealability or to proceed in forma pauperis on appeal.

I. Background

Powell's petition represents that, in the Circuit Court of Dallas County, Alabama, he was convicted of robbery first degree, for which he was sentenced onNovember 3, 1988 (Case No. 87-262), and of possession of a controlled substance, for which he was sentenced on May 1, 1989 (Case No. 89-43T). (Doc. 1 at 2, 12). He received a sentence of 23 years imprisonment for the robbery conviction and 5 years for the possession conviction. (Id.). Powell did not directly appeal from his convictions and sentences, nor did he initially file any petition for post-conviction relief in state court. (Id. at 3).

Powell filed the instant habeas petition on February 13, 2014 (the date he declares, under penalty of perjury, that he delivered the petition to prison authorities for mailing (id. at 13)).1 Powell does not challenge his convictions or resulting sentences. Rather, his sole claim is that he is being illegally held by the Alabama authorities beyond the term of imprisonment to which he was sentenced by the Circuit Court of Dallas County because the Alabama Department of Corrections ("ADOC") has failed to account for his jail credit and "good time" credit, which should have reduced his time of imprisonment from 28 years total to 24 years and 10 months.2 (See Doc. 1 at 12).

Powell claims that he "was arrested in Dallas County, Alabama, on October 8, 1987[,]" and was held "without making Bail" prior to being sentenced. (Id.). At the time his habeas petition was filed, he claimed to have served "a total prison sentence of 26 yrs and 4 month" and that he was due "Jail Credit of (1 yr./3 month/25 Days) andD.O.C. Good Time Credit of (21 month) on The May 1, 1989[] Five (5) yr. sentence." (Id.). He claims his release date should have been "January 2012" and, therefore, he had "been held illegally (2 yrs/6 months over [his] actual release date" at the time of the petition's filing. (Id.). Powell claims he did not discover this "error" "until May 30, 2013[,]" and that he has contacted the warden of the Mobile County Metro Jail, the Alabama Prison Commissioner, the Alabama Governor's office, and ADOC's central record office about this matter, all to no avail. (Id.). He asserts that he is being "held in involuntary servitude" and that his due process is being denied. (Id.).3

II. Analysis
A. Failure to Exhaust

"[A] habeas petition filed by a state prisoner in custody pursuant to the judgment of a state court is subject both to [28 U.S.C ]§ 2241 and to [28 U.S.C ]§ 2254, with its attendant restrictions." Thomas v. Crosby, 371 F.3d 782, 785 (11th Cir. 2004) (citing Medberry v. Crosby, 351 F.3d 1049 (11th Cir. 2003)). One such restriction is found at 28 U.S.C. § 2254(b)(1)(A), which provides: "An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State." Accord Jimenez v. Fla. Dep't of Corr., 481 F.3d 1337, 1342 (11th Cir. 2007) (per curiam) ("The habeas statute requires applicants to exhaust all available state law remedies. 28 U.S.C. § 2254(b)(1)(A)."). "An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within themeaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented." 28 U.S.C. § 2254(c). The Respondent, invoking this requirement, has moved to dismiss Powell's habeas petition for failure to exhaust his state court remedies. (See Doc. 14). Specifically, the Respondent has reported that, on April 11, 2014 (after his present petition was filed), Powell filed a petition for post-conviction relief under Alabama Rule of Criminal Procedure 32 with the Dallas County Circuit Court. (Doc. 14-1). Rule 32 permits an Alabama prisoner to petition for relief, among other things, on the ground that "[t]he petitioner is being held in custody after the petitioner's sentence has expired." Ala. R. Crim. P. 32.1(d).

The Respondent's Answer was filed on June 9, 2014. A review of the docket of Powell's Dallas County criminal actions conducted on April 15, 2015, through AlaCourt.com indicates that the circuit court denied Powell's Rule 32 petition by order dated August 20, 2014 (attached hereto as "Exhibit A"), and that the Alabama Court of Criminal Appeals affirmed on January 30, 2015, issuing a Certificate of Judgment on February 18, 2015 (attached hereto as "Exhibit B"). (See Doc. 20). A copy of the Court of Criminal Appeals's opinion affirming the circuit court, however, could not be located on the docket. Thus, the undersigned is unaware of the basis or bases on which the Court of Criminal Appeals affirmed. Moreover, it is unclear from the record whether Powell has sought, or will seek, further review with the Alabama Supreme Court.

Nevertheless, the undersigned concludes that Powell has failed to exhaust his claims because he has not pursued all available procedures under Alabama law -specifically, he has not sought habeas corpus relief in state court. See Ala. Code § 15-21-1, et seq.4

Alabama courts have long held:

A petition for a writ of habeas corpus is the proper method by which to test whether the State has correctly calculated the time an inmate must serve in prison. Swicegood v. State, 646 So. 2d 158 (Ala. Cr. App. 1993). Section 15-18-5, Ala. Code 1975, requires that a convicted person be "credited with all of his actual time spent incarcerated pending trial for such offense. The actual time spent incarcerated pending trial shall be certified by the circuit clerk or district clerk on forms to be prescribed by the Board of Corrections."

Graves v. State, 710 So. 2d 535, 536 (Ala. Crim. App. 1997). Accord, e.g., Wilson v. State, 981 So. 2d 441, 442-43 (Ala. Crim. App. 2007); Sundberg v. Thomas, 13 So. 3d 43, 44 (Ala. Crim. App. 2009); Hillard v. Ala. Dep't of Corr., 93 So. 3d 983, 984 (Ala. Crim. App. 2011) ("A petition for a writ of habeas corpus is the proper method by which to test whether DOC has correctly calculated the time an inmate must serve in prison. See Breach v. State, 687 So.2d 1257 (Ala. Crim. App. 1996); Swicegood v. State, 646 So. 2d 158 (Ala. Crim. App. 1993)."); Carroll v. Ala. Dep't of Corr., No. CR-12-1640, 2014 WL 4957723, at *2 (Ala. Crim. App. Oct. 3, 2014) (same as Hillard). See also Ex parte Collier, 64 So. 3d 1045, 1046-49 (Ala. 2010) (holding that the Court of Criminal Appeals properly treated a prisoner's motion as a petition for a writ of habeas corpus to challenge pretrial-incarceration credit); Hall v. Wheeler-White, Civil Action No. 09-0491-CG-C, 2009 WL 3062008 (S.D. Ala. Sept. 18, 2009) (dismissing Alabama prisoner's federal habeas claim that she had been unlawfully denied jail credit to allow her the opportunity to exhaust her state remedies though a petition for a writ of habeas corpus).5

A state petition for a writ of habeas corpus is appropriate to address to claimed deprivations of both jail credit, see, e.g., Wilson, 981 So. 2d at 442-44; Smith v. State, 504 So. 2d 1224, 1225 (Ala. Crim. App. 1987), and "good time" credit. See McConico v. Ala. Dep't of Corr., 893 So. 2d 577, 579 (Ala. Crim. App. 2004) ("In 1980,...the Alabama Supreme Court held that a petition for writ of habeas corpus was the proper method by which an inmate could challenge a disciplinary hearing depriving him or her of good time credit even if the inmate would not be entitled to immediate release upon restoration of the good time. Williams v. Davis, 386 So.2d 415 (Ala. 1980). Following the Alabama Supreme Court's decision in Williams v. Davis, this Court gradually recognized the use of a petition for a writ of habeas corpus by an inmate to challenge DOC decisions involving not only the loss of good-time credit, but as a method by which the inmate could determine whether DOC had correctly calculated the amount of time he was required to serve, see, e.g., Swicegood v. State, 646 So. 2d 158 (Ala. Crim. App. 1993)..."), overruled on other grounds, Collins v. Ala. Dep't of Corr., 982 So. 2d 1078 (Ala. 2007).6

While Powell emphatically represents that he has petitioned all manner of Alabama officials with regard to the amount of credit he is due, he does not claim that he has petitioned for habeas corpus review in state court. "Although the exhaustion requirement is not jurisdictional, there is a 'strong presumption in favor of requiring the prisoner to pursue his available state remedies.' " Mauk v. Lanier, 484 F.3d 1352, 1357 (11th Cir. 2007) (quoting Castille v. Peoples, 489 U.S. 346, 349 (1989) (quotation marks and citation omitted)). Because Powell has not exhausted the...

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