Upshaw v. State (Ex parte Upshaw), 1120035

CourtSupreme Court of Alabama
Writing for the CourtBOLIN
PartiesEx parte Roosevelt James Upshaw In re: Roosevelt James Upshaw v. State of Alabama
Docket Number1120035
Decision Date26 April 2013

Ex parte Roosevelt James Upshaw
In re: Roosevelt James Upshaw
State of Alabama



OCTOBER TERM, 2012-2013
Dated: April 26, 2013

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.


(Russell Circuit Court, CC-86-266.60, CC-86-267.60,
CC-86-268.60, and CC-86-269.60;
Court of Criminal Appeals, CR-11-0494)

BOLIN, Justice.

Roosevelt James Upshaw petitions this Court for certiorari review of the judgment of the Court of Criminal Appeals affirming the Russell Circuit Court's order denying

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Upshaw's petition for a writ of habeas corpus. In his habeas corpus petition, Upshaw alleged that the Alabama Department of Corrections ("ADOC") had erred in calculating the term of his sentence after he was arrested while on parole in that ADOC unlawfully denied him credit under § 15-22-32(a), Ala. Code 1975, for the time he was incarcerated in Georgia.1 We affirm.

Facts and Procedural History

On August 1, 1986, Upshaw pleaded guilty to 1 count of first-degree robbery and 3 counts of third-degree robbery and was sentenced to 15 years' imprisonment for the first-degree-robbery conviction and for 2 of the third-degree-robbery convictions; those 3 sentences were to be served concurrently. Upshaw was also sentenced to 20 years' imprisonment for the final third-degree-robbery conviction, which sentence was to run consecutively to the other 3 sentences. In 1993, Upshaw

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was released on parole to Georgia pursuant to the Interstate Compact for the Supervision of Parolees and Probationers.2 While Upshaw was on parole, he was arrested on new charges in Georgia on December 24, 1994. On January 23, 1995, the Alabama Board of Pardons and Paroles (hereinafter "the Parole Board") declared Upshaw delinquent on his parole. ADOC filed a detainer against Upshaw while he was incarcerated in Georgia. Upshaw pleaded guilty to the charges in Georgia and was sentenced to a total of 26 years in prison.3 The Georgia court ordered that his sentences be served concurrently with the sentences imposed following his parole revocation in Alabama. According to Upshaw, the Georgia Superior Court

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issued an order in 1997 providing for his immediate release to Alabama.

Upshaw was granted parole in Georgia on September 24, 2009. Because ADOC had issued a detainer for Upshaw, he was returned to the custody of ADOC that same day. Upshaw was informed that his earliest release date was July 3, 2010. Subsequently, Upshaw was informed that his earliest release date was March 4, 2025, because ADOC was not giving him credit for the 14 years, 8 months, and 1 day he spent incarcerated in Georgia. Instead, ADOC considered the time Upshaw spent incarcerated in Georgia as "dead time."

On August 25, 2010, Upshaw filed a pro se petition for a writ of habeas corpus in the Russell Circuit Court, arguing that ADOC had unlawfully denied him credit for the time he was incarcerated in Georgia. The circuit court ordered that ADOC be served with notice. ADOC did not respond. An attorney filed a notice of appearance on behalf of Upshaw and subsequently filed a memorandum in support of Upshaw's habeas corpus petition. On November 28, 2011, the circuit court denied Upshaw's petition. Upshaw appealed. The Court of Criminal Appeals affirmed the circuit court's decision in an

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unpublished memorandum. Upshaw v. State (No. CR-11-0494, August 17, 2012), _ So. 3d _ (Ala. Crim. App. 2012)(table). Upshaw filed an application for rehearing, which was overruled. Upshaw timely sought certiorari review with this Court.


Upshaw argues that the narrow question presented here is whether § 15-22-32, Ala. Code 1975, requires ADOC to credit an Alabama inmate with the time served in custody in Georgia after his parole is transferred to "Georgia's supervision under the Interstate Compact and [the parolee is] later arrested and declared delinquent on the basis of new criminal activity under circumstances where he is ordered by both Alabama and Georgia authorities to be returned to begin serving time on his Alabama revocation." (Reply brief, p. 2.) Upshaw argues that, pursuant to the plain language of § 15-22-32(a), the event triggering when a parolee is to be considered serving time on his sentence is a declaration that the parolee is delinquent, coupled with the parolee's arrest. Upshaw contends that, because he was under arrest in Georgia when he was declared delinquent by ADOC and a detainer issued, he is

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entitled to credit for the days between the date he was declared delinquent on his parole in Alabama and the date he was returned to Alabama. Upshaw argues that the Court of Criminal Appeals erred in affirming ADOC's calculation of his sentence on the basis that the time Upshaw spent in custody in Georgia was "dead time" and that he did not resume serving time on his Alabama sentences until he was physically returned to custody in Alabama. Upshaw states that the Court of Criminal Appeals in addressing this issue concluded that "because [Upshaw's] arrest and incarceration in Georgia was not related to his delinquent parole status in Alabama, he is not entitled to credit for the time he served in Georgia." Upshaw asserts that the "related to" requirement read into § 15-22-32 by the Court of Criminal Appeals is not supported by the plain language of the statute.

ADOC asserts that Upshaw was arrested in Georgia on December 24, 1994, on various new charges including robbery and that he was not arrested at that time "as a delinquent parolee" under § 15-22-32. Instead, Upshaw was declared delinquent on January 23, 1995, and was ultimately not arrested "as a delinquent parolee" until he was released on

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parole from the Georgia Department of Corrections on September 24, 2009, because the detainer did not spring into action until Upshaw was released from the Georgia prison. ADOC contends that a parolee begins receiving credit toward an existing sentence after delinquency is declared and that parolees are entitled to credit following a delinquency declaration only when the cause of their arrest and incarceration is their status as a delinquent parolee. Upshaw argues that ADOC's interpretation of § 15-22-32 would effectively delete the phrase "as a delinquent parolee," violating, he says, rules of statutory construction and creating insurmountable practical problems because most delinquent parolees are arrested for new criminal violations and not for technical violations of their parole.

Upshaw also argues that the Court of Criminal Appeals' interpretation of § 15-22-32 invites constitutional error because it discriminates between out-of-state parolees who are declared delinquent based on a new arrest and similarly situated in-state parolees based solely on geography. Upshaw argues that the geographical problem implicates equal protection because, he says, the interpretation of when a

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parolee has been "rearrested as a delinquent parolee" turns on a question of geography. He argues that, to the extent there is any ambiguity about the meaning of the words "as a delinquent parolee," the ambiguity must be resolved in the defendant's favor. ADOC contends that Upshaw's equal-protection argument is based on a bare assertion as to the alleged disparate treatment of in-state parolees and out-of-state parolees.

Section 15-22-32(a) provides:

"(a) Whenever there is reasonable cause to believe that a prisoner who has been paroled has violated his or her parole, the Board of Pardons and Paroles, at its next meeting, shall declare the prisoner to be delinquent, and time owed shall date from the delinquency. The warden of each prison shall promptly notify the board of the return of a paroled prisoner charged with violation of his or her parole. Thereupon, the board, a single member of the board, a parole revocation hearing officer, or a designated parole officer shall, as soon as practicable,

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