Tyler v. Houston, S-07-101.

• Decision Date: 23 February 2007
• Docket Number: No. S-07-101.,S-07-101.
• Parties: Billy R. TYLER, petitioner, v. Robert P. HOUSTON, director, Nebraska Department of Correctional Services, respondent.
• Court: Nebraska Supreme Court

728 N.W.2d 549

273 Neb. 100

Billy R. TYLER, petitioner, v. Robert P. HOUSTON, director, Nebraska Department of Correctional Services, respondent.

No. S-07-101.

Supreme Court of Nebraska.

February 23, 2007.

James R. Mowbray and Jerry L. Soucie, of Nebraska Commission on Public Advocacy, for petitioner.

Jon Bruning, Attorney General, and Linda L. Willard for respondent.

HEAVICAN, C.J., and WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

GERRARD, J.

The issue in this original action for writ of habeas corpus is whether the time that Billy R. Tyler was free on bond, pursuant to an order of the district court granting a writ of habeas corpus, should be credited against the sentence that Tyler was required to complete after the district court's order was reversed on appeal.

BACKGROUND

The petitioner, Tyler, is an inmate committed to the custody of the Nebraska Department of Correctional Services (the Department). Robert P. Houston, the director of the Department, is the respondent in this action in his official capacity.

Tyler was convicted in the Douglas County District Court of three counts of delivery of a controlled substance. Tyler was sentenced to 7 to 10 years' imprisonment on each count, with the sentences to be served concurrently, and Tyler was to receive credit for 80 days' time served. The sentences were imposed on February 9, 1996.

During the course of his imprisonment, Tyler forfeited all of his "good time" credit. However, Tyler challenged the forfeiture, and on July 1, 2003, the Johnson County District Court entered an order granting Tyler's pro se petition for writ of habeas corpus, on the basis that Tyler's good time had been improperly forfeited because the authority to approve the forfeiture of good time had been improperly delegated. The Department appealed, but on July 11, 2003, Tyler was released on bond pursuant to an order of the Johnson County District Court.

On November 21, 2003, this court decided Martin v. Nebraska Dept. of Corr. Servs.,¹ an appeal brought from a similar challenge raised by another inmate, in which we rejected the Johnson County District Court's reasoning. In Tyler's case,² we summarily reversed the judgment and remanded the cause to the district court for further consideration in light of Martin. Our mandate issued on March 26, 2004, and was spread on the record of the Johnson County District Court on March 29, 2004. Tyler was ordered to surrender himself to the Department.

On April 19, 2004, the Johnson County District Court entered a failure to appear on the record, declared Tyler's bond to be forfeited, and issued a warrant for Tyler's arrest. On November 7, Tyler was arrested, and on November 8, he was reincarcerated by the Department.

Tyler has raised a number of pro se challenges to his continued confinement.³ In particular, Tyler filed a pro se declaratory judgment action in the Lancaster County District Court requesting that he be granted credit against his remaining sentence for the 485 days he was out on bond. The Lancaster County District Court initially denied Tyler leave to proceed in forma pauperis on the ground that the action was frivolous, but the Nebraska Court of Appeals concluded the action was not frivolous and reversed the district court's determination.⁴ The district court denied Tyler the relief sought, and an appeal from that order is pending on this court's docket.

Tyler also filed a pro se petition for habeas corpus relief in the Lancaster County District Court that was denied as premature, and the Court of Appeals affirmed that determination.⁵ In its opinion, the Court of Appeals distinguished between the time Tyler was lawfully free on bond and the time he was at large after he was ordered to surrender. The court reasoned that Tyler was not entitled to credit against his sentence for the 202 days during which he was in violation of his bond. The court concluded that [a]t the time of Tyler's release on bond, his projected release date was November 18, 2005. Because Tyler is not entitled to any credit as time served for the 202 days that he was out of custody and in violation of his appearance bond, his projected release date would have become at least sometime in June 2006.

Tyler filed his petition seeking habeas corpus relief on September 8, 2005. . . . As such, when Tyler filed for habeas corpus relief and when the court ruled on his petition, the district court correctly held that Tyler was not entitled to habeas corpus relief on the basis of credit as time served.⁶

Because it was not necessary in that appeal, the Court of Appeals expressly declined to address whether Tyler was entitled to credit for any other period of time he was out on bond.⁷

Tyler also filed a pro se motion in the Douglas County District Court, generally asking the court to release him from confinement. The Douglas County District Court denied the motion, and the Court of Appeals sustained the State's motion for summary affirmance.⁸ Because the case presented the same issue as the appeal from the Lancaster County District Court that was already on this court's docket, we sustained Tyler's petition for further review,⁹ and appointed counsel to represent Tyler for purposes of that appeal.

Through his newly appointed counsel, on January 19, 2007, Tyler filed an application with this court for leave to commence an original action for writ of habeas corpus. Ordinarily, in the interest of proper state practice and procedure, we initially require a party to file a petition for a writ of habeas corpus in the trial court.¹⁰ However, Tyler alleged that because of the appeals pending from the prior pro se motions, the district court in neither Douglas nor Lancaster County had jurisdiction to consider Tyler's claim for immediate release.¹¹ We granted Tyler's application, subject to the parties' filing a stipulation of facts with this court within 10 days. The parties filed such a stipulation on January 26, 2007, and we expedited briefing and oral argument.

ANALYSIS

Habeas corpus is a special civil proceeding providing a summary remedy to persons illegally detained.¹² A writ of habeas corpus is a remedy which is constitutionally available in a proceeding to challenge and test the legality of a person's detention, imprisonment, or custodial deprivation of liberty.¹³ A writ is available only when the release of the petitioner from the deprivation of liberty being attacked will follow as a result of a decision in the petitioner's favor.¹⁴ Habeas corpus requires the showing of legal cause, that is, that a person is detained illegally and is entitled to the benefits of the writ.¹⁵

Neb.Rev.Stat. § 29-2823 (Reissue 1995) provides:

The proceedings upon any writ of habeas corpus shall be recorded by the clerk and judges respectively, and may be reviewed as provided by law for appeal in civil cases. If the state shall appeal from a final order of a district court made upon the return of a writ of habeas corpus discharging a defendant in a criminal case, the defendant shall not be discharged from custody pending final decision upon appeal; Provided, said defendant may be admitted to bail pending disposition of said appeal as is otherwise provided by law.

(Emphasis in original.)

It was pursuant to § 29-2823 that Tyler was released on bond pending the appeal of his Johnson County District Court action. Tyler makes no claim, in this case, that he should be given credit for good time, or for the period of time between April 19 and November 7, 2004, when he was in violation of his bond. Tyler's sole claim in this case is that between July 11, 2003, and April 19, 2004, he was in the legal custody of the Department, and that such period should be credited against the maximum terms of his sentences. The parties agree that if that time is credited against Tyler's sentences, he would have served his maximum term of 10 years on June 18, 2006. In other words, if Tyler's sentence should have been credited for the time that he was free on bond between July 11, 2003, and April 19, 2004, his continued detention would be unlawful and he would be entitled to the benefit of the writ.

The traditional common-law rule, in Nebraska and elsewhere, was that a prisoner released before his or her sentence was complete would be required to serve the full sentence, regardless of the circumstances of release, or how long the prisoner had been free.¹⁶ "Where the penalty is imprisonment, the sentence of the law is to be satisfied only by the actual suffering of the imprisonment imposed, unless remitted by death or by some legal authority."¹⁷ Mere lapse of time without imprisonment or other restraint contemplated by the law did not constitute service of sentence.¹⁸

Thus, at common law, a convicted person erroneously at liberty was required, when the error was discovered, to serve the full sentence imposed.¹⁹

In the absence of some other statutory provision, the judgment of a court imposing a jail sentence can only be satisfied by a compliance with its terms. Neither the honest mistake nor the willful disregard of duty on the part of the officers whose duty it is to enforce the judgment can release the convicted party from its consequences.²⁰

For example, in The State, ex rel., v. McClellan,²¹ a prisoner was granted habeas relief by a Tennessee trial court and the warden, representing the state, appealed. The order of the trial court was reversed, and the prisoner was recaptured and returned to prison. The prisoner claimed that because he was "legally released" during the habeas appeal, that time "should be counted as a part of the period of his term."²² The Supreme Court of Tennessee applied the common-law rule and held that "[t]he reversal determined the illegality of the discharge, and the time elapsing until re-imprisonment cannot be counted as time in prison. The imprisonment contemplated by the [sentencing] statute is confinement in fact, and not in legal or other...