This circumstance is that the State of Alabama offers no post-conviction remedy with which to raise the question presented by the present petition. Rice v. Simpson, 271 F. Supp. 267; 274 F. Supp. 116 (M.D.Ala. 1967); Merkes v. Simpson et al. Civil Action No. 2597-N, U.S.D.C.MD. Ala., September 26, 1967; Ex parte Merkes, 43 Ala. App. 640, 198 So.2d 789 (1967), cert. denied 281 Ala. ___, 198 So.2d 790 (1967); Aaron v. State, 43 Ala. App. 450, 192 So.2d 456(1966). In his petition, petitioner cites and relies upon Hill v. Holman, 255 F. Supp. 924 (M.D.Ala. 1966).
Upon an examination of the petition as presented, this Court, by formal order entered on July 17, 1967, held that 28 U.S.C. ยง 2254 did not bar the filing of petitioner's application for a writ of habeas corpus in this court. In making this determination, the Court stated, 271 F. Supp. 267: "Upon an examination of the petition as now presented and the excellently written argument filed in support thereof, this Court is of the opinion that petitioner is afforded no post-conviction remedies by the State of Alabama where his only contentions, in support of his claim that his present incarceration is unconstitutional, are (1) that he was not given credit on resentencing for prior time served upon sentences which were later set aside by the courts of the State of Alabama as being unconstitutional, and (2) that the sentences resulting in his present incarceration were imposed as, and serve as, punishment for his having exercised and been successful in Alabama post-conviction proceedings.
The crime carried a possible maximum of twenty years. Two reasons were advanced to affirm: first, inadequate remedy, Rice v. Simpson, D.C., 271 F. Supp. 267; and, second, the time served plus the new time did not exceed twenty years. This latter was used to refute a claim of excess of jurisdiction as a basis for habeas corpus relief. City of Birmingham v. Perry, 41 Ala. App. 173, 125 So.2d 279.
Credit for prior time here could be as easily ascribed to the second sentence for burglary being only for eighteen months after prior imprisonment alleged to have been thirty-two months and ten days. If this latter figure is right, then it is clear that the original term of five years has been reduced. Even if we were to accept Rice v. Simpson, D.C., 271 F. Supp. 267, yet this case would not come under it. No excess of jurisdiction to support habeas corpus is shown.