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Ex parte Upshaw

Supreme Court of Alabama

April 26, 2013

Ex parte Roosevelt James Upshaw;
v.
State of Alabama) (In re: Roosevelt James Upshaw

Released for Publication June 6, 2014.

(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). Trial Judge: Albert L. Johnson.

For Petitioner: Bryan A. Stevenson, Charlotte R. Morrison, Equal Justice Initiative, Montgomery.

For Respondent: Luther Strange, Atty. Gen.; John C. Neiman, Jr., Deputy Atty. Gen., Anne Adams Hill, General Counsel, Elizabeth A. Sees, Asst. Attys. Gen., Alabama Department of Corrections, Legal Division.

BOLIN, Justice. Stuart, Parker, Shaw, Main, Wise, and Bryan, JJ., concur. Moore, C.J., and Murdock, J., dissent.

OPINION

Page 71

PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS

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 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 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 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

Page 72

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 unpublished memorandum. Upshaw v. State (No. CR-11-0494, August ...


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