Opinion
CA 00-0741-RV-C
January 16, 2001
REPORT AND RECOMMENDATION
Ray Charles Phillips, a state prisoner presently in the custody of the respondent, has petitioned this Court for federal habeas corpus relief pursuant to 28 U.S.C. § 2254. Petitioner is challenging the continuing validity of sentences he received on June 11, 1973, three concurrent thirty-year terms on three counts of robbery and one consecutive thirty-year term of imprisonment for second-degree murder, on the basis that he was erroneously released from the Alabama Department of Corrections on September 25, 1977 for completion of his sentence and therefore, under Alabama law, the entire time he was erroneously at liberty, over twenty years, should be credited as time served and he should be released from prison. ( Compare Doc. 1 with Doc. 12) Phillips raised this issue in the state courts of Alabama, via a petition for writ of habeas corpus filed in the Circuit Court of Escambia County, Alabama on May 20, 1999. The petition was dismissed by the trial court on July 20, 1999 and the Alabama Court of Criminal Appeals affirmed the dismissal of the petition by memorandum opinion dated December 3, 1999. Phillips' petition for writ of certiorari to the Alabama Supreme Court was denied on March 24, 2000.
Petitioner then filed a "notice of appeal" in the Alabama Supreme Court. This motion was treated by the Court as an application for rehearing and was stricken in accordance with Ala.R.App.P. 39(j) on August 8, 2000.
In his petition before this Court, Phillips raises the following grounds which he claims entitle him to relief:
(1) he was erroneously released from prison;
(2) he is being restrained of his liberty in violation of the Fourteenth Amendment to the United States Constitution;
(3) he is being restrained of his liberty beyond the end of his sentence, his sentence having been completed; and
(4) the trial court erred in summarily dismissing his petition for writ of habeas corpus.
These same issues were raised to the state courts of Alabama. The Alabama Court of Criminal Appeals, for purposes of its decision, combined these issues into one major issue and therefore, the undersigned does likewise.
Respondent has admitted that petitioner has presented all of these claims to the state courts of Alabama ( see Doc. 12); therefore, they are exhausted for federal habeas corpus purposes. Thus, this case is ripe for a decision by this Court.
This cause is before the Court on the petition and respondent's answer, as amended, with attachments. The Magistrate Judge has made a careful review of the record and finds that it contains sufficient facts upon which the issue under consideration may be properly resolved. Therefore, no evidentiary hearing is required.
FINDINGS OF FACT
1. On June 11, 1973, in the Circuit Court of Mobile County, Alabama, Phillips was sentenced to concurrent thirty-year terms of imprisonment on three counts of robbery and a consecutive thirty-year term of imprisonment on one count of second-degree murder. ( See Doc. 12, Alabama Department of Corrections Inmate Summary as of October 11, 2000)
2. Petitioner escaped from the Fountain Trusty Barracks on September 25, 1977. (Doc. 12, ESCAPE REPORT) Phillips left on an eight-hour pass on that date and did not return at the designated time. ( Id.)
3. A fugitive warrant for Phillips' arrest was executed by then Commissioner of the Alabama Department of Corrections, J. C. Locke, Jr., on September 26, 1977. (Doc. 12, FUGITIVE WARRANT)
4. A charge of escape against Phillips was "NO BILLED" during the spring, 1978 session of the Escambia County Grand Jury. (Doc. 15, Bates Stamp Number 0013)
5. Petitioner was recaptured and returned to the Alabama prison system on November 15, 1997 to serve the remainder of his June 11, 1973 sentences. ( See Doc. 12, Alabama Department of Corrections Inmate Summary as of October 11, 2000) Shortly thereafter, Phillips wrote a letter to the Director of Records for the Alabama Department of Records, Betty Teague, which reads, in relevant part, as follows:
All of the inmate summaries that are a part of the record in this case reflect that as of petitioner's recapture date, his good time balance was 15 years 11 months and 11 days; his minimum release date is August 9, 2007 and his long date is July 20, 2023. (Doc. 15, Bates Stamp Number 0014; see also Doc. 12, Inmate Summary as of October 11, 2000)
On Nov. 15, 1997, I surrendered myself to the Warden at Fountain Correctional Center[,] [a]fter 20 year[s] of being on escape from the Ala. DOC.
. . .
While on escape I attended college and all these thing[s] over the years made one thing pertained (sic) and that was to remain sober and Christ-like I had to return to prison.
. . .
I served 5 yr[s] from 1972-77. During that time[,] I received no disciplinaries. I worked for Asst Warden Clayborne as hospital clerk while at Atmore Center[.] After being transferred to Draper Center (the reason for the transfer I will explain later)[,] where I worked in classification [and at] the Montgomery Airport as a porter to the Governor's airplanes[,] [l]ater I was transferred to the Cattle Ranch where I work[ed] as [a] livestock caretaker and fish pond helper to the animal doctor. I was again transferred to the Montgomery Honor Camp under Warden Potts and worked on the col[i]s[e]um detail. In order to be near to Mobile[,] and after a few year[s] away from Fountain[,] I was transferred to Atmore Trustee Camp. In addition[,] I attended college while at Draper while awaiting minimum custody before working at the airport.
Ms. Teague, it seem that from the above work details I was and still am a trustworthy inmate. So why would a person with the breaks the system had given me . . . escape[?]
Action[s] are judge[d] by intention[s], allow me to explain. We go back to Atmore while I was the hospital clerk and why I was transferred to Draper.
Shortly after being assigned to the hospital[,] I came in possession of a .22 caliber pistol and bullets. I was forced into hiding them for some of the bad boys of that day[,] men who had killed or had been accused of killing both guards and inmates. For two day[s] I was crazy with fear. So I did the only thing I could: I TURN[ED] THE GUN over to Warden Harding. He assured me that a letter would be sent to Central Record[s] for my file and I would receive custody reduction to be transferred and would not be in contact with those men again. I know I did the right thing even though I was risking my life[.] [T]hese men[,] Warden Harding assured me[,] would never see me because our custody level[s] would never match [i]f I just stayed in medium or better custody. I believe in my heart that my actions save[d] [the] lives of both inmates and guards . So I continued to be a good inmate and followed the rules. [M]y intention [was] to simply work hard and get work release.
When I came to Atmore Trustee I was waiting for my turn to go to work release when one of the most feared men in prison was in the trustee barrack[s] with me[;] his nickname was "Flame." I don't know if you know of him but ol[d] timer[s] in the Administration can tell you about Bobby Segeal (sic). Anyway[,] this man began to ask me question[s] about why I got transferred and made remarks that I read as threats on my life. I was faced with a cho[ice] to go to official[s] who in 1977 could not protect anyone [—] the[re] were more killing[s] in lockup than in regular population. At the age of 25[,] I felt the fear and sense of betr[ayal] by the system. So[,] I ran[.] I learn[ed] over the past years th[at] FEAR means F orget E verything A nd R un. I could not risk dying because I did the right thing with that gun.
Now[,] 20 yrs later it seem[s] that the[re's] no letter in my jacket [a]nd I'm hoping this letter will help you know me.
. . .
I only want to be a productive individual in society[.] My escape was against the rules but turning in that gun was against the inmates' code[—] a code that in the early 70s was a way of life. Check the record[s] of stabbing[s], rapes and murder[s] in those years to see/imagine the situation I was in.
I'm not trying[,] by no means[,] [to] tell you that I should be rewarded for leaving. However[,] I can assure you that my life is such that if the best I got was community custody and work release I would be a model inmate obeying all rules. If I got any type of parole or release I could adhere and comply with whatever requirement[s] were placed on me.
. . .
Ms. Teague[,] allow me to say I'm extremely remorse[ful] for being in the system in the first place. Before this conviction[,] I had no criminal record and after my escape I got no felony cases. I've made Christ the center of my life and my children second.
I made a mistake that I cannot undo but for the past 25 yrs I've done all I could to make amend[s][;] that's why I'm here writing you.
(Doc. 12, Letter from Phillips to Teague (emphasis supplied to "escape"))
6. On March 11, 1998, Phillips received information from prison officials that they had learned that his escape case was "no billed" by the "Spring 1978 Grand Jury[.]" (Doc. 15, Bates Stamp Number 0044) Moreover, on April 23, 1999, the Circuit Clerk of Escambia County, Alabama sent Phillips the following letter:
I have received your request for additional information relating to the case identified above [Case No. GJ #56]. No transcripts of Grand Jury proceedings are taken, therefore a transcript in connection with your case is not available.
Also, since the Escape charge was "No Billed" by the Grand Jury, an indictment was never issued, therefore there is no copy available.
(Doc. 15, Bates Stamp Number 0012)
7. Phillips filed a petition for writ of habeas corpus in the Circuit Court of Escambia County, Alabama on May 20, 1999 and therein raised the first three issues that he raises in the instant habeas corpus petition. (Doc. 15, Bates Stamp Numbers 0004-0011) In response to the petition, the State filed the affidavit of Betty Teague. (Doc. 15, Bates Stamp Numbers 0034-0036) That affidavit reads, in relevant part, as follows:
I am presently employed by the State of Alabama, Department of Corrections, as Correctional Records Director, 1400 Lloyd Street, Montgomery, Alabama 36107.
This is to certify that Ray C. Phillips['], #107800, minimum release date of August 9, 2007 is correct. Judicial proceedings are a separate issue from administrative proceedings. The fact that his escape case was nolle prossed does not preclude the fact that he was out of our custody for 20 years 1 month and 10 days (dead time). He is still wanted for completion of his original 30 year murder conviction.
( Id. at 0036)
8. The trial court dismissed the petition on July 20, 1999 and denied Phillips' motion to reconsider on August 21, 1999. (Doc. 15, Bates Stamp Number 0001) Petitioner filed notice of appeal on September 9, 1999. ( Id.)
9. The Alabama Court of Criminal Appeals affirmed the trial court's dismissal of Phillips' habeas corpus petition by memorandum opinion issued on December 3, 2000. (Doc. 15, MEMORANDUM)
The appellant, Alabama inmate Ray Charles Phillips, was convicted in June 1973 of one count of second-degree murder and three counts of robbery. He was sentenced to 30 years' imprisonment for each conviction. His sentence for his murder conviction was ordered to run consecutively to his sentences for his robbery sentences, which were ordered to run concurrently with one another. On May 20, 1999, Phillips filed a petition for a writ of habeas corpus, in which he contested the legality of his imprisonment. The state filed a motion to dismiss Phillips's petition, denying Phillips's allegations and showing the amount of Statutory Good Time ("SGT") and Incentive Good Time ("IGT") with which Phillips had been credited and the method by which the Department of Corrections had calculated Phillips's minimum release date as August 9, 2007. The circuit court summarily dismissed Phillips's petition, and this appeal followed.
In his petition, Phillips alleged that the Department of Corrections, in calculating his minimum release date, erroneously failed to credit a period of twenty years, one month, and ten days against his sentence. In response to this claim, however, the Department of Corrections submitted records showing that Phillips was on escape status from September 25, 1977, until November 15, 1997. The period during which Phillips was on escape was designated as "dead time" and cannot be credited against Phillips's sentence. See § 15-18-6, Ala. Code 1975.
Phillips appears to suggest that because in 1978, early during the period while he was still out on escape, a grand jury "no billed" an escape indictment that was sought in his absence, he was legally at liberty during the entire time the Department of Corrections considered him to be on escape. The basis for the grand jury's decision is not apparent from the record, and indeed the reasons for such a decision may be many. However, we do not accept Phillips's contention that the mere fact that an indictment sought in 1978 was "no billed" — while Phillips was still at large and under a thirty-year sentence of imprisonment — had the legal effect of rendering Phillips's departure from prison a "release," as opposed to an escape, or of establishing that Phillips's twenty-year absence from the Department's custody was "through no fault of his own." Cf. Ex parte Agee, 474 So.2d 161, 163 (Ala. 1985). As this is the substance of Phillips's argument, we find that Phillips has failed to allege facts which, if true, entitle him to the relief he seeks in his habeas petition.
Absent a showing to the contrary, we will assume that the calculations of the Department of Corrections are accurate. Morrison v. State, 687 So.2d 1259, 1261 (Ala.Cr.App. 1996). Because Phillips has failed to present factual allegations establishing that he is entitled to habeas relief, we hold that the circuit [court] correctly dismissed his petition.
"An escapee from a state penal institution who is recaptured and returned to custody shall be credited with all of his actual time spent incarcerated within the State of Alabama prior to his transfer and return to the custody of Board of Corrections (penal system). The actual time spent incarcerated pending return to custody of the Board of Corrections (penal system) shall be certified by the sheriff on forms to be prescribed by the Board of Corrections." Ala. Code § 15-18-6.
( Id.) The Alabama Court of Criminal Appeals, on December 17, 1999, denied Phillips' motion to expand the record on appeal and overruled petitioner's application for rehearing on January 7, 2000. ( See Doc. 15, Attachments)
10. Phillips' petition for writ of certiorari to the Alabama Supreme Court was denied, without written opinion, on March 24, 2000. (Doc. 15, CERTIFICATE OF JUDGMENT) Thereafter, petitioner filed a notice of appeal which was treated by the court as an application for rehearing and stricken, on August 8, 2000, in accordance with Ala.R.App.P. 39(j). (Doc. 15, ORDER)
11. Phillips' filed his petition for writ of habeas corpus in this Court on August 15, 2000. (Doc. 1)
CONCLUSIONS OF LAW
1. Phillips filed his petition for writ of habeas corpus in this Court on August 15, 2000, as aforesaid, and therefore, his case is governed by 28 U.S.C. § 2254 as amended by the Antiterrorism and Effective Death Penalty Act (AEDPA). Williams v. Taylor, 529 U.S. 362, ___, 120 S.Ct. 1495, 1518, 146 L.Ed.2d 389 (2000); Bottoson v. Moore, 234 F.3d 526, 530 (11th Cir. 2000). As amended, § 2254 now provides:
(d) 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 with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d)(1) (2) (footnote added). Moreover, the Act, as amended, presumes as correct all determinations of factual issues made by a State court and places the burden upon the petitioner of rebutting such a presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e).
Based upon the facts as found by the undersigned, which are indistinguishable in all essential particulars from those found by the Alabama Court of Criminal Appeals in its memorandum decision, it is clear that petitioner can make no argument that the decision of the Alabama Court of Criminal Appeals was based upon an unreasonable determination of the facts in light of the evidence presented to the state courts. More to the point, since this Court must presume as correct the determinations of all factual issues made by the Alabama Court of Criminal Appeals, and this Court has independently made indistinguishable factual findings, petitioner simply cannot rebut that presumption of correctness by clear and convincing evidence. The undersigned would only emphasize more strongly, in a different manner, that petitioner's numerous concessions/admissions in his letter to Betty Teague that he escaped from prison in September of 1977 serves to underscore the fallacy of his argument that the State's failure to prosecute him for escape somehow transformed his twenty plus years on the lam into time that should be credited against his 1973 robbery and second-degree murder sentences. The petitioner need admit to himself the obvious and undeniable facts that he simply got a break from the State with respect to the failure to pursue an escape charge and that the State's failure to pursue that charge has no import with respect to the completion of his 1973 robbery and second-degree murder sentences.
2. In Williams v. Taylor, supra, the Supreme Court held that
§ 2254(d)(1) places a new constraint on the power of a federal habeas court to grant a state prisoner's application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court. Under § 2254(d)(1), the writ may issue only if one of the following two conditions is satisfied — the state-court adjudication resulted in a decision that (1) "was contrary to . . . clearly established Federal law, as determined by the Supreme Court of the United States," or (2) "involved an unreasonable application of . . . clearly established Federal law, as determined by the Supreme Court of the United States." Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.Id. at ___, 120 S.Ct. at 1523; see Bottoson, supra, 234 F.3d at 531 ("In addition, a state court decision involves an unreasonable application of Supreme Court precedent `if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.'").
3. In this case, it is patently obvious that Phillips cannot establish his entitlement to relief under § 2254(d)(1). First, petitioner has not and cannot show, under the "contrary to" clause, that the Alabama Court of Criminal Appeals arrived at a conclusion opposite to that reached by the Supreme Court of the United States on a question of law or decided the case differently than the Supreme Court did in a previous case presenting a set of materially indistinguishable facts. Moreover, under the "unreasonable application" clause, petitioner has not and cannot establish that the Alabama Court of Criminal Appeals, though recognizing the correct governing principle from the Supreme Court's decisions, unreasonably applied that principle to the facts in this case. The source of the petitioner's inability to establish either § 2254(d)(1) clause is his failure to establish that Federal law, as determined by the Supreme Court, is at all relevant to the issues in this case much less that the decision of the Alabama Court of Criminal Appeals in this instance was either contrary to that law or involved an unreasonable application of that law. In fact, this Court can draw no other conclusion but that without the aid of Alabama law, specifically that an inmate erroneously released from prison through no fault of his own is entitled to credit for the time he spent at liberty on that erroneous release, McCall v. State, 594 So.2d 733, 734 (Ala.Crim.App. 1992) ("McCall did make factual allegations that taken as true, would entitle him to habeas corpus relief: that he was erroneously released, that his release occurred through no fault of his own, and that he had not been given credit for the time he spent at liberty on that erroneous release."), citing Giles v. State, 462 So.2d 1063 (Ala.Crim.App. 1985), Phillips simply has no possibility of showing that he is entitled to the habeas corpus relief he seeks in this Court. Cf. Boutwell v. Nagle, 861 F.2d 1530, 1532 (11th Cir. 1988) ("In Palmer v. Dugger, 833 F.2d 253 (11th Cir. 1987), this court stated, `[a]s a general rule, a state prisoner has no federal constitutional right to credit for time served prior to sentence absent a state statute granting such credit.' . . . If, absent a state statute, a prisoner has no right to credit for time served before he or she has been convicted, then without a statute the prisoner certainly has no right to credit for time spent in out-of-state custody while he or she is an escapee from the state's prison system. Alabama has no statute granting Boutwell credit for the time he spent in jail in Washington before he was returned to Alabama's custody. . . . [Morover,] [t]o credit Boutwell's Alabama sentence for time he spent in out-of-state custody while challenging extradition, in effect, would allow Boutwell to choose the state of his incarceration for the period of time during which his extradition challenge was pending. Petitioner has no constitutional right to do so."), cert. denied, 490 U.S. 1099, 109 S.Ct. 2452, 104 L.Ed.2d 1006 (1989). Simply put, petitioner cannot show that he has a federal constitutional right, as established by the Supreme Court, to be credited for time spent in the free world as the result of an admitted escape from prison. Regardless of petitioner's conduct for the twenty plus years he lived in the free world after his escape or the State's failure to prosecute him for that escape, it is clear to this Court that Phillips must serve the remainder of his admittedly valid 1973 robbery and second-degree murder sentences as those sentences remained after his escape from prison. Accordingly, petitioner is not entitled to habeas corpus relief.
On November 22, 2000 (Doc. 14) and again on January 3, 2001 (Doc. 16) petitioner filed in this Court letters regarding the status of his case and stating that he had not received permission or a request from this Court to submit a responsive brief ( see id.). Petitioner does not need permission from this Court to file a responsive brief nor does this Court set up a briefing schedule in all habeas corpus cases. This report and recommendation is entered because petitioner has had ample time to respond to the respondent's answer, as amended, and because the undersigned can discern no argument that could be made by the petitioner different from that contained in his state-court submissions which have been fully reviewed by the Court. Moreover, petitioner will have every opportunity to make all pertinent arguments he wishes to make in objecting to the undersigned's report and recommendation.
CONCLUSION
The Magistrate Judge is of the opinion that petitioner's rights were not violated in this cause and that his request for habeas corpus relief should be denied.The attached sheet contains important information regarding objections to the report and recommendation of the Magistrate Judge.