from Escambia Circuit Court. (CV-14-21).
Hanif, Appellant, Pro se.
Appellee: Anne Adams Hill, gen. counsel, and Albert S.
Butler, asst. gen. counsel, Alabama Department of
Presiding Judge. Welch and Joiner, JJ., concur. Kellum and
Burke, JJ., concur in the result.
WINDOM, Presiding Judge.
Hanif appeals the circuit court's dismissal of his
petition for a writ of habeas corpus in which he challenged
the calculation of his sentence by the Alabama Department of
Corrections (" DOC" ). For the reasons that follow,
this Court reverses the circuit court's decision and
remands this cause for further proceedings.
2012, Hanif was convicted of attempted solicitation of a
child by computer, see § § 13A-6-110 and 13A-4-2,
Ala. Code 1975, and was sentenced to 10 years in prison. On
appeal, this Court affirmed Hanif's conviction and
sentence by unpublished memorandum in which it summarized the
facts of Hanif's crime as follows:
" [I]n April 2006 Hanif used a computer to communicate
with an individual that he believed to be a 14-year-old girl
in Baldwin County and solicit her to engage in oral sex.
Although he believed he was communicating with a 14-year-old
girl named 'Jennifer' in a chatroom, Hanif was
actually communicating with Commander William Cowan of the
Gulf Shores police department. Hanif agreed to meet
'Jennifer' at a car wash in Gulf Shores. Once Hanif
arrived at the car wash, he was arrested.
Hanif v. State, (No. CR-12-0273, Sept. 27, 2013)
So.3d (Ala.Crim.App. 2013) (table).
2, 2014, Hanif filed a petition for a writ of habeas corpus
in which he
argued, among other things, that the DOC was improperly
denying him Class I Correctional Incentive Time ("
CIT" ) under § 14-9-41(e), Ala. Code 1975, on the
ground that he had been convicted of a sexual offense
involving a child under the age of 17. Specifically, Hanif
argued that his offense did not involve a child; rather, it
involved an adult posing as a child. According to Hanif,
because his offense did not involve an actual child, the DOC
had no grounds under § 14-9-41(e), Ala. Code 1975, to
deny him Class I CIT. The DOC filed a motion to dismiss in
which it argued that Hanif is prohibited from receiving Class
I C.I.T. under § 14-9-41(e), Ala. Code 1975. Along with
its motion to dismiss, the DOC filed an affidavit from Mark
Burton, the Director of Central Records, explaining that
§ 14-9-41(e), Ala. Code 1975, prohibits Hanif from
earning Class I C.I.T. because he had been convicted of an
attempted sex crime against a child under the age of 17.
Specifically, Hanif had been convicted of an attempt to
solicit a 14-year-old child by computer. Thereafter, the
circuit court granted the DOC's motion to dismiss.
appeal, Hanif reasserts his argument that the DOC is
improperly denying him Class I CIT. According to Hanif,
§ 14-9-41(e), Ala. Code 1975, does not prohibit him from
earning Class I C.I.T. because his crime did not involve an
actual child under the age of 17. Rather, he solicited an
adult who he thought was a child. According to Hanif, because
there was no child involved in his crime, he is entitled to
Class I CIT. The DOC, on the other hand, argues that Hanif is
prohibited under § 14-9-41(e), Ala. Code 1975, from
earning Class I C.I.T. ...