Alabama Cases February 20, 2020: Brown v. Cooks

Case Description

REPORT AND RECOMMENDATIONS

Petitioner Latabius Brown, an Alabama prisoner proceeding without counsel ( pro se ), has filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2241 dated November 20, 2019 (Doc. 5), challenging his continued confinement with the Alabama Department of Corrections ("ADOC") under a criminal judgment issued by the Circuit Court of Henry County, Alabama. The assigned District Judge has referred the petition to the undersigned Magistrate Judge for appropriate action. See S.D. Ala. GenLR 72(b); (1/13/2020 electronic reference). Under S.D. Ala. GenLR

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72(a)(2)(R), the undersigned is authorized to require responses, issue orders to show cause and any other orders necessary to develop a complete record, and to prepare a report and recommendation to the District Judge as to appropriate disposition of the petition, in accordance with 28 U.S.C. § 636(b)(1) and Rules 8(b) and 10 of the Rules Governing Section 2254 Cases in the United States District Courts.

After preliminary review of the habeas petition under Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts, the undersigned ordered that the Respondent be served with the petition for an answer or other appropriate response. ( See Doc. 8). The Respondent, through the Office of the Attorney General of the State of Alabama, has timely filed an answer to Brown's petition, which includes copies of Brown's relevant state court records. (Doc. 15). Having reviewed the answer and state court records in accordance with Rule 8(a) of the Rules Governing Section 2254 Cases in the United States District Courts, the undersigned finds that neither discovery nor expansion of the record is necessary, and that Brown's petition is due to be denied and dismissed without an evidentiary hearing.

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Records from Brown's state court proceedings indicate that a Henry County Circuit Court jury found him guilty of one count of first-degree assault on March 21, 2018. ( See Docs. 15-3, 15-4). On April 13, 2018, the circuit court sentenced Brown to 12 years of imprisonment. (Doc. 15-5). Though not included in the circuit court's sentencing order (Doc. 15-5), a separate handwritten notation by the sentencing judge on Brown's Case Action Summary dated April 13, 2018, stated: "After hearing, probation is denied. Defendant is ordered to serve one-year in prison then serve the remainder of his sentence with Houston County Community Corrections. While in prison he shall complete a drug and alcohol program approved by the Dept. of Corrections." (Doc. 15-6). Brown took no direct appeal of that judgment. Brown's present petition asserts that, despite having served his one year in prison, ADOC has refused to release him to Houston County Community Corrections in accordance with the Henry County sentence.

However, after the sentence was imposed, the deputy director of Houston County Community Corrections Work Release sent the sentencing judge a letter dated July 20, 2018, stating: "Brown is not a candidate for Work Release due to Assault 1 conviction. [Ala. Code §] 15-18-171(14) specifically excludes felony

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offenders with Assault 1 from participating in our program. I am requesting for Brown to be removed from Work Release and serve his sentence in the Department of Corrections." (Doc. 15-8). The sentencing judge "granted" the deputy director's request in a notation on the letter. ( Id .).

While there is no indication that this letter was filed into the record of Brown's state court case, Brown appears to have received notice of it, as he filed a pro se motion with the circuit court dated October 16, 2018, requesting that the court "reconsider community corrections..." (Doc. 15-9). On October 26, 2018, the sentencing judge entered an order stating that the motion to reconsider was "noted" and that "Defendant needs to contact Community Corrections." (Doc. 15-10). Brown filed another pro se motion with the circuit court dated May 22, 2019, asking "since you remove me from the community correction program on 7-20-18 due to my charge Assault 1 that I be brought back to court on the community corrections portion of my sentence." (Doc. 15-11). The sentencing judge denied that motion by order dated May 30, 2019, with the additional directive: "Defendant must clear any request through Community Corrections." (Doc. 15-12).

Brown initiated the instant federal proceedings on October 8, 2019, the date of his initial petition (Doc. 1). On January 28, 2020, the sentencing judge entered

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an order stating: "Order of April 13, 2018 is set aside. One convicted for Assault 1 cannot be sentenced to Community Corrections pursuant to Alabama law. Defendant's sentence is amended to serving sentence with the Department of Corrections." (Doc. 15-13).

The Alabama Court of Criminal Appeals has stated:

Absent a posttrial motion under Rule 24, Ala. R. Crim. P., a trial court generally retains jurisdiction to modify a sentence for only 30 days after the sentence is imposed. See Ex parte Hitt , 778 So.2d 159, 162 (Ala. 2000). Under the Split Sentence Act, a trial court retains jurisdiction to suspend the confinement portion of a split sentence throughout that portion of the sentence. See § 15-18-8(g), Ala. Code 1975. The exception to these jurisdictional limitations is when the sentence imposed is illegal. It is well settled that an illegal sentence is a jurisdictional defect and both this Court and the Alabama Supreme Court have repeatedly recognized that an illegal sentence may be challenged, or noticed by this Court, at any time . See , e.g. , Ex parte Jarrett , 89 So.3d 730, 732 (Ala. 2011); Ex parte Batey , 958 So. 2d 339, 341 (Ala. 2006); McNeal v. State , 43 So. 3d 628, 629 (Ala. Crim. App. 2008); and Ginn v. State , 894 So. 2d 793, 796 (Ala. Crim. App. 2004). This Court has also recognized that " 'even after the defendant has begun to serve his sentence, the trial court is obligated to alter an invalid sentence [and] any increase in the sentence does not raise double jeopardy problems.' " Greenhill v. State , 746 So. 2d 1064, 1072 (Ala. Crim. App. 1999) (quoting Love v. State , 681 So. 2d 1108, 1109 (Ala. Crim. App. 1996) ).

Lanier v . State , 270 So. 3d 304, 308 (Ala. Crim. App. 2018).

In removing the community corrections portion of Brown's sentence - first by granting the Houston County Work Release deputy director's July 20, 2018 request that Brown "be removed from Work Release and serve his sentence in the

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Department of Corrections," then by formally amending Brown's criminal judgment on January 28, 2020 - the sentencing judge was correcting what he determined to be an illegal sentence, an act he retained jurisdiction to do under Alabama law " at any time ." Id . While the undersigned cannot conclusively determine from the present record whether Brown's original sentence was in fact illegal under Alabama law, the undersigned need not do so, as " 'federal habeas corpus relief does not lie for errors of state law.' " Estelle v . McGuire , 502 U.S. 62, 67 (1991) (quoting Lewis v . Jeffers , 497 U.S. 764, 780 (1990)). Thus, Brown's sole claim for relief under § 2241 - that he is being held by ADOC beyond the term of imprisonment authorized by his Henry County criminal judgment - is without merit.

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For habeas petitions brought by state prisoners, a "district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." Rule 11(a) of the Rules Governing Section 2254 Cases in the United

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States District Courts. "Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court." 28 U.S.C.A. § 2253(c)(1)(A).

Where the district court "has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v . McDaniel , 529 U.S. 473, 484 (2000). See also Miller-El v . Cockrell , 537 U.S. 322, 336 (2003) ("Under the controlling standard, a petitioner must show that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." (citations omitted and punctuation modified)). While "a COA does not require a showing that the appeal will succeed[,]" a "prisoner seeking a COA must prove something more than the absence of frivolity or the existence of mere good faith on his or her part." Miller-El , 537 U.S. at 337-38 (quotations omitted). Rather, "[a] certificate of appealability may issue 'only if the applicant has made a substantial showing of the denial of a constitutional right.' " Spencer v . United States , 773 F.3d 1132, 1137 (11th Cir. 2014) (en banc) (quoting 28

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U.S.C. § 2253(c)(2)).

Upon consideration, the undersigned finds that Brown should be DENIED a Certificate of Appealability in conjunction with the dismissal of the present habeas petition, as he has not made a substantial showing of the denial of a constitutional right.

"An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith." 28 U.S.C. § 1915(a)(3). A district court's finding "that an appeal would not be in good faith because no certificate of appealability had been issued . . . is not enough to explain why the appeal on the merits would not be in good faith, because the standard governing the issuance of a certificate of appealability is not the same as the standard for determining whether an appeal is in good faith. It is more demanding . . . [T]o determine that an appeal is in good faith, a court need only find that a reasonable person could suppose that

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the appeal has some merit." Walker v . O'Brien , 216 F.3d 626, 631-32 (7th Cir. 2000). In other words,

[a] party demonstrates good faith by seeking appellate review of any issue that is not frivolous when examined under an objective standard. See Coppedge v . United States , 369 U.S. 438, 445, 82 S. Ct. 917, 921, 8 L. Ed. 2d 21 (1962). An issue is frivolous when it appears that "the legal theories are indisputably meritless." Carroll v . Gross , 984 F.2d 392, 393 (11th Cir. 1993) (citations omitted). In other words, an IFP action is frivolous, and thus not brought in good faith, if it is "without arguable merit either in law or fact." Bilal v . Driver , 251 F.3d 1346, 1349 (11th Cir. 2001). More specifically, "arguable means capable of being convincingly argued." Sun v . Forrester , 939 F.2d 924, 925 (11th Cir. 1991) (internal quotations and citations omitted). Nevertheless, where a "claim is arguable, but ultimately will be unsuccessful," it should be allowed to proceed. Cofield v . Ala . Pub . Serv . Comm'n , 936 F.2d 512, 515 (11th Cir. 1991).

Ghee v . Retailers Nat . Bank , 271 F. App'x 858, 859-60 (11th Cir. 2008) (per curiam) (unpublished).

Considering the foregoing analysis, the undersigned RECOMMENDS the Court certify that any appeal by Brown of the judgment in this action would be without merit and therefore not taken in good faith, thus denying him entitlement to appeal in forma pauperis .

In accordance with the foregoing analysis, it is RECOMMENDED that Brown's operative petition for a writ of habeas corpus under 28 U.S.C. § 2241 (Doc. 5) be DENIED and DISMISSED with prejudice , that the Court find him not

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entitled to either a Certificate of Appealability or to appeal in forma pauperis , and that final judgment be entered accordingly in favor of the Respondent under Federal Rule of Civil Procedure 58.

DONE this the 20 day of February 2020.

/s/ Katherine P . Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE

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A copy of this report and recommendation shall be served on all parties in the manner provided by law. Any party who objects to this recommendation or anything in it must, within fourteen (14) days of the date of service of this document, file specific written objections with the Clerk of this Court. See 28 U.S.C. § 636(b)(1); Rule 8(b) of the Rules Governing Section 2254 Cases in the United States District Courts; S.D. Ala. GenLR 72(c). The parties should note that under Eleventh Circuit Rule 3-1, "[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice." 11th Cir. R. 3-1. In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the Magistrate Judge's report and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the Magistrate Judge is not specific.