United States District Court, M.D. Alabama, Southern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
SUSAN RUSS WALKER, Chief Magistrate Judge.
This cause of action is before the court on a 28 U.S.C. § 2254 petition for habeas corpus relief filed by David Lee Putnam, a state inmate and habitual felony offender, on November 8, 2011. Putnam is presently incarcerated pursuant to a conviction for the unlawful manufacture of a controlled substance in the first degree imposed upon him by the Circuit Court of Houston County, Alabama on February 10, 2005.
At the time of Putnam's controlled substance conviction, the trial court had before it three prior felony convictions, none of which was a Class A felony, for purposes of sentence enhancement under the provisions of the Alabama Habitual Felony Offender Act ("HFOA"), Ala. Code § 15-5-9, et seq., as amended; Respondents' Exhibit A (Part 3) - Court Doc. No. 5-3 at 81. Thus, in its discretion, the trial court could impose a sentence of "imprisonment for life or life without parole." Ala. Code § 13A-5-9(c)(3); Respondents' Exhibit A (Part 3) - Court Doc. No. 5-3 at 86 ("There are only two sentences available to this Court, one is life and the other is life without parole."). Based on Putnam's criminal record "that goes all the way back to 1988" and includes over twenty prior felony convictions, the trial court exercised its discretion and imposed a sentence of life without parole. Id. at 86-87.
II. STATUTORY HISTORY
Prior to the 2000 amendment of the HFOA and under the circumstances present in Putnam's case, a state court was required to impose a sentence of life imprisonment without parole. However, effective May 25, 2000, the legislature amended § 13A-5-9(c)(3) to allow punishment of such offenders either to "imprisonment for life or life without possibility of parole, in the discretion of the trial court." Since Putnam was sentenced on March 11, 2005, he received the benefit of the amendment to § 13A-5-9(c)(3) allowing for imposition of a life sentence. The Alabama legislature again amended the HFOA on December 1, 2001 by adding § 13A-5-9.1. This statute granted trial judges the authority to consider retroactively sentences of life imprisonment for non-violent, Class A convicted offenders with three or more felony convictions, none of which were Class A felonies, who had been convicted prior to the May 25, 2000, amendment to the Act and were sentenced to life imprisonment without parole. Section 13A-5-9.1 directs that "[t]he provisions of Section 13A-5-9 [as amended] shall be applied retroactively by the sentencing judge or, if the sentencing judge is no longer in office, by any other circuit judge appointed by the presiding judge, for consideration of early parole of each nonviolent convicted offender based on evaluations performed by the Department of Corrections and approved by the Board of Pardons and Paroles and submitted to the court." The Alabama Supreme Court has determined:
Section 13A-5-9.1 directs the sentencing judge or [properly appointed circuit judge] to apply the provisions of § 13A-5-9 retroactively, thereby making the benefits of the 2000 amendment to the HFOA available to inmates who were sentenced pursuant to the HFOA before it was amended in 2000. Section 13A-5-9(c)(3), as amended in 2000, allows a sentencing judge to decide in certain circumstances whether a sentence of life imprisonment or life imprisonment without the possibility of parole is appropriate for a particular inmate [sentenced prior to the 2000 amendment to the HFOA]. In making that decision, the sentencing judge does not have the power to decide the secondary issue - whether the defendant will be granted parole should the judge sentence him or her to "straight" life imprisonment. Under § 13A-5-9.1, a judge applying § 13A-5-9(c)(3) to a previously sentenced defendant merely has the authority to conduct a new sentencing hearing, and in the judge's discretion, to modify a previous sentence under which a defendant would never have been eligible for parole to a sentence of "straight" life imprisonment, under which a defendant might thereafter become eligible for parole, depending upon the factors then established by the Parole Board....
The clear reference in § 13A-5-9.1 to the provisions of § 13A-5-9 makes it obvious that the trial court's only authority is to modify the sentence of an inmate who is not eligible for parole under the sentence imposed pursuant to the HFOA before its amendment in 2000, sentencing that inmate instead to a sentence under which he or she may become eligible for parole.
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... Reading § 13A-5-9.1 in conjunction with § 13A-5-9, it is clear that a sentencing judge or [judge assigned for resentencing] can resentence only two narrowly defined classes of habitual offenders: those who had been sentenced [prior to the 2000 amendment] to life imprisonment without the possibility of parole under the mandatory provisions of the HFOA upon conviction of a Class A felony with no prior Class A felony convictions; and those who had been sentenced to life imprisonment under the mandatory provisions of the HFOA upon conviction of a Class B felony. Moreover, of those habitual offenders, the judge can resentence only those who are nonviolent offenders.
Kirby v. State, 899 So.2d 968, 973-974 (Ala. 2004) (emphasis added). "There are three requirements for eligibility to have a sentence reconsidered under § 13A-5-9.1: (1) the inmate was sentenced before May 25, 2000, the date the 2000 amendment to the HFOA became effective; (2) the inmate was sentenced to life imprisonment without the possibility of parole pursuant to § 13A-5-9(c)(3) and had no prior Class A felony convictions or was sentenced to life imprisonment pursuant to § 13A-5-9(c)(2)...; and (3) the inmate is a nonviolent convicted offender.' An inmate must satisfy all three requirements before he... is eligible for reconsideration of sentence under § 13A-5-9.1. If a circuit court determines that an inmate is eligible for reconsideration of his or her sentence, the court then has the authority pursuant to § 13A-5-9.1 to resentence the inmate, within the bounds of § 13A-5-9(c)(2) or § 13A-5-9(c)(3), as amended, if it so chooses." Holt v. State, 960 So.2d 726 at 734-735 (Ala.Cr.App. 2006), writ quashed, 960 So.2d 740 (Ala. 2006). Consequently, both the Alabama Supreme Court and Alabama Court of Criminal Appeals have ruled that only inmates sentenced before May 25, 2000 are eligible for reconsideration of their sentence under § 13A-5-9.1. Kirby, 899 So.2d at 973; Holt, 960 So.2d at 734-735.
It is likewise well settled that "a circuit court is not required to resentence an inmate merely because it determines that the inmate is eligible for reconsideration of his or her sentence." Holt, 960 So.2d at 735, n.3. In addition, although trial courts have subject-matter jurisdiction over successive motions for reconsideration, there is nothing "requiring the trial courts to consider second or successive motions for reconsideration under § 13A-5-9.1...." Ex parte Gunn, 993 So.2d 433, 437 n.6 (Ala. 2007). Neither § 13A-5-9.1 nor case law interpreting its provisions "prohibit[s] a circuit court from denying a motion for sentence reconsideration solely on the basis that it is a successive motion [after consideration of the merits of a previous motion filed by an eligible inmate]. The intent of the legislature in enacting § 13A-5-9.1 was to afford nonviolent inmates sentenced before the 2000 amendment to [§ 13A-5-9(c)(2) and § 13A-5-9(c)(3) of] the Habitual Felony Offender Act the opportunity to receive the benefits of that amendment, i.e., to afford those nonviolent inmates the opportunity for the circuit court to exercise its discretion in determining the sentence to be imposed, discretion that was not available before the amendment." Ashford v. State, 12 So.3d 160, 162 (Ala.Cr.App. 2008) (emphasis in original).
On November 18, 2008, Putnam filed a motion for relief from sentence seeking reconsideration of his sentence under Ala. Code § 13A-5-9.1. In this motion, Putnam argued that he should be allowed to seek reconsideration of his sentence in the same manner as inmates sentenced prior to amendment of the HFOA and requested that the trial court "(a) determine that it has jurisdiction to consider his application for re-sentencing; (b) direct the Parole Board and/or the Department of Corrections to submit a report regarding the Defendant's behavior while incarcerated; (c) set a hearing to consider this application for re-sentencing; and (d) enter an order after hearing granting the relief requested and re-sentencing the Defendant to life in prison with the possibility of parole." Respondents' Exhibit Z - Doc. No. 5-28 at 11 (emphasis in original).
The trial court issued an order on October 30, 2009, denying the motion for relief from sentence. Respondents' Exhibit Z - Doc. No. 5-28 at 42-44. In its order, the court referenced the three eligibility requirements necessary for reconsideration of an inmate's sentence under the provisions Ala. Code § 13A-5-9.1 and noted that "Putnam does not appear to meet the eligibility requirements for reconsideration under Section 13A-5-9.1" because he "was convicted [on] February 10, 2005 and [therefore] sentenced under the amended habitual felony offender act." Id. at 42-43. Consequently, "[t]his Court had the option of sentencing Defendant Putnam to life or life without the possibility of parole." Id. at 43. "Defendant argues that he is denied equal protection if he cannot avail himself of a sentence reconsideration under Section 13A-5-9.1. However, this argument is misplaced. When the legislature amended the habitual offender act the changes were made prospective [and therefore applied to Putnam at his sentencing]. However, because [those] criminal defendants who were sentenced prior to the effective date of the act [were excluded from eligibility for consideration of the more lenient sentencing terms], the legislature saw fit to allow these defendants reconsideration of [their] sentences by applying the amendments retroactively pursuant to Section 13A-5-9.1." Id. at 44.
Putnam appealed the trial court's denial of his motion for relief from sentence. On June 18, 2010, the Alabama Court of Criminal Appeals affirmed the decision of the trial court in an unpublished memorandum opinion. Respondents' Exhibit DD - Doc. No. 5-32. The appellate court's opinion, as is relevant to the claims raised in the instant habeas petition, reads as follows:
David Lee Putnam appeals from the denial of his motion to reconsider his sentence filed pursuant to § 13A-5-9.1, Ala. Code 1975, ("Kirby Motion"). Kirby v. State , 899 So.2d 968 (Ala. 2004). On February 10, 2005, Putnam was convicted of first-degree unlawful manufacture of a controlled substance, a violation of § 13A-12-218, Ala. Code 1975. On March 11, 2005, he was sentenced as a habitual felony offender to life in prison without the possibility of parole.
On November 18, 2008, Putnam filed his Kirby motion seeking sentence reconsideration. On October 30, 2009, the circuit court denied Putnam's motion holding that Putnam was sentenced after the effective date of § 13A-5-9.1, Ala. Code 1975. [As set forth by prior case law, there are three elements an inmate must establish to gain eligibility for reconsideration of his sentence under § 13A-5-9.1. One of these eligibility criteria requires that the sentence at issue was imposed upon the inmate before May 25, 2000, the effective date of the amendment to the Habitual Felony Offender Act.] On October 30, 2009, the circuit court denied Putnam's motion holding that Putnam was sentenced after the effective date[s] of [both the amendment to § 13A-5-9(c)(3) and] § 13A-5-9.1, Ala. Code 1975. Putnam acknowledges in [his] brief that he was sentenced after the effective date of [each statute]; however, he urges this Court to hold that § 13A-5-9.1, Ala. Code 1975, as applied to him, is unconstitutional due to equal protection and due process violations.
Putnam first asserts § 13A-5-9.1, Ala. Code 1975, as interpreted by Alabama's appellate courts, runs afoul of the Fourteenth Amendment's guarantee of equal protection. Specifically, Putnam asserts that § 13A-5-9.1, Ala. Code 1975, creates a system that adversely impacts non-violent offenders sentenced after May 25, 2000, relative to those non-violent offenders who were sentenced before May 25, 2000. The adverse impact Putnam asserts is related to his inability to bring a Kirby Motion for reconsideration of his 2005 sentence. Putnam, however, lacks the standing necessary to bring an equal protection claim against this statute.
Prior to 2000, an offender such as Putnam with three or more prior felony convictions [none of which constituted a Class A felony] would have received a mandatory term of life in prison without parole upon conviction of a Class A felony. See § 13A-5-9(c)(3), Ala. Code 1975 (1994) (amended 2000). As amended in 2000, § 13A-5-9(c)(3), Ala. Code 1975, provided the circuit court with the discretion to sentence an offender such as Putnam to life in prison or life in prison without the possibility of parole. Section 13A-5-9.1, Ala. Code 1975, is a statute that calls for the retroactive application of § 13A-5-9, Ala. Code 1975, allowing the sentencing judge the discretion to reconsider the sentence of a non-violent habitual felon sentenced prior to the effective date of the 2000 amendment in light of the new sentencing scheme. In other words, the purpose of § 13A-5-9.1, Ala. Code 1975, is to confer the benefit of the 2000 amendment to the HFOA to those convicted prior to the amendment.
Putnam apparently desires the ability to have his sentence reconsidered. However, Putnam ignores the fact that when he was sentenced in 2005, the sentencing judge already possessed the discretion to decide between a sentence of life in prison and life in prison without parole. Thus, § 13A-5-9.1, Ala. Code 1975, does not adversely impact Putnam because he has already been conferred the benefit of the 2000 amendment to the HFOA, i.e., the new level of discretion vested with the sentencing judge. ""A party has standing to challenge the constitutionality of a statute only insofar as it has an adverse impact on his own rights."'" Express Enterprise, Inc. v. Waites , 979 So.2d 754, 755 (Ala. 2007) (quoting State v. Woodruff , 460 So.2d 325, 328 ...