United States District Court, N.D. Alabama, Northeastern Division
VIRGINIA EMERSON HOPKINS, UNITED STATES DISTRICT JUDGE.
imprisoned at the Limestone Correctional Facility in Harvest,
Alabama, Petitioner Terry Harris, then acting pro
se, filed this action seeking a federal writ of habeas
corpus. (Doc. 1). He challenges his convictions on eight
counts of violating various provisions of the Alabama
Securities Act ("ASA"), Ala. Code § 8-6-1 et
seq. (1975), entered following a jury trial in the Circuit
Court of Jefferson County, Alabama, in 2011. On June 16,
2017, the magistrate judge to whom the case was referred
entered a report pursuant to 28 U.S.C. § 636(b)
recommending that the court deny the petition on the ground
that Harris's claims are without merit. (Doc. 20
("R&R")). On July 31, 2017, Harris, now acting
through retained counsel, filed a 50-page objection to the
magistrate judge's 12-page R&R. (Doc. 25
("Objections" or "Obj.")). Upon
consideration, the court concludes that Harris's
objections are due to be overruled and that the magistrate
judge's findings and recommendation are due to be
2007, a Jefferson County, Alabama, grand jury returned a
12-count indictment against Harris, charging that he acted
"contrary to law" in violating various enumerated
provisions of the ASA. (Doc. 3, ¶ 7(a); id. at
15-18). Following a jury trial in the Jefferson County
Circuit Court, Birmingham Division, Harris was convicted on
eight of the counts, as follows: one count charging sale of
unregistered securities in violation of Ala. Code §
8-6-4, one count charging failure to register as an
investment advisor in violation of Ala. Code § 8-6-3(b),
and six counts charging securities fraud in violation of Ala.
Code § 8-6-17. (Doc. 3, ¶ 7(f); id. at
15-19). In March 2011, the trial court sentenced Harris to
ten years' imprisonment on the count charging sale of
unregistered securities, five years on the count charging
failure to register, and ten years on each of his six
securities fraud convictions. (Doc. 3, ¶ 7(g);
id. at 20-36). The court ordered that the 10-year
sentences on the securities fraud counts run concurrently
with each other, but that the 10-year sentence for sale of
unregistered securities and the 5-year sentence for failing
to register would run consecutively, both to each other and
to the securities-fraud sentences. (Id.)
Accordingly, the court sentenced Harris to a total term of 25
filed a notice of appeal, but the Alabama Court of Criminal
Appeals dismissed his appeal on July 10, 2012, because Harris
failed to file a brief. (Doc. 7-5). Harris sought no further
direct review. Harris thereafter sought postconviction relief
by way of a host of state-law habeas corpus petitions filed
in various state courts, including the Circuit Court of
Limestone County where he was imprisoned, the Circuit Court
of Jefferson County where he was sentenced, and in both the
Alabama Court of Criminal Appeals and the Alabama Supreme
Court. All of those efforts were unsuccessful.
filed this pro se habeas corpus action on or about
June 30, 2015, purporting to rely exclusively upon the
general federal habeas statute, 28 U.S.C. § 2241. (Doc.
1). In his now-governing amended petition, Harris raises
seven enumerated "Grounds for Relief." First, he
insists that the state trial court acted "without
jurisdiction" in his criminal case, because his
indictment "charged non- criminal offenses, "
insofar as the counts failed to allege specifically as a
necessary mens rea element that his violations of
state securities laws were committed "willfully."
(Doc. 3, ¶ 7). Second, Harris attacks his charging
document, again contending that the state trial court acted
"without jurisdiction, " this time because the
indictment allegedly was not endorsed "A True Bill"
by the foreperson of the grand jury. (Id., ¶
8). Harris's third, fourth, and fifth claims, in turn,
posit that the alleged "jurisdictional" defects in
his indictment outlined in his first and second grounds mean
that his criminal judgment is "void" and that his
convictions and imprisonment therefore violate the Due
Process Clause of the Fourteenth Amendment (id.,
¶ 9), the Cruel and Unusual Punishments Clause of the
Eighth Amendment (id., ¶ 10), and the Equal
Protection Clause of the Fourteenth Amendment (id.,
¶ 11). Finally, in his sixth and seventh claims, Harris
argues that he is entitled to federal habeas relief because
the Alabama Supreme Court violated his rights under the Due
Process Clause and other unspecified federal constitutional
provisions based upon that Court's summary denial of his
state habeas corpus petition in December 2013. (Doc. 3,
¶¶ 12, 13).
response, the magistrate judge entered an order pursuant to
Castro v. United States, 540 U.S. 375 (2003),
advising Harris that, although he appeared to rely
exclusively upon § 2241 as authorizing his habeas
petition, the court intended to treat his application as also
being governed by 28 U.S.C. § 2254, on the basis that he
is "a person in custody pursuant to the judgment of a
State court" for purposes of 28 U.S.C. § 2254(a).
(Doc. 4). The magistrate judge then proceeded to enter an
order requiring to the State to show cause why Harris is not
entitled to habeas relief. (Doc. 6).
State answered, asserting that Harris is not entitled to
relief because: (1) his petition was untimely under 28 U.S.C.
§ 2244(d), the one-year statute of limitations
applicable to habeas petitions filed by state prisoners under
§ 2254; (2) his claims were procedurally defaulted
because they were not properly raised and exhausted in the
State courts; and (3) his "convictions and sentences
were validly and constitutionally obtained." (Doc. 7,
¶¶ 5-7). After Harris filed a reply (Doc. 9), the
magistrate judge entered a report recommending that the court
accept the State's argument that Harris's petition is
time-barred. (Doc. 10). Harris objected and provided
additional documentation regarding his prior attempts to
obtain postconviction relief in the state courts. (Doc. 13).
That prompted the magistrate judge to withdraw his report and
recommendation to consider further whether Harris might be
entitled to a period of tolling of the limitations period
under 28 U.S.C. § 2244(d)(2) that would render his
application timely. (Doc. 14).
16, 2017, the magistrate judge entered his second,
now-pending report and recommendation. First, he concluded
that, although it appeared that Harris had been released from
prison since first filing the action, his claims were not
moot, so the court retained jurisdiction. From there, the
magistrate judge recommended that the court bypass the
State's defenses based on the statute of limitations,
exhaustion, and procedural default. Instead, the magistrate
judge found it to be more expedient simply to deny
Harris's claims on the merits. In so doing, the
magistrate judge analyzed those claims as follows:
Harris's first five "Grounds for Relief are all
founded on a theory that alleged defects in his indictment
deprived the state trial court of subject-matter
jurisdiction, i.e., the lawful power and authority,
to try, convict, and sentence him for violations of Alabama
criminal law. As a result, Harris says, the state court
judgment purporting to authorize his custody is "void,
" thereby engendering violations of his federal
constitutional rights to due process and equal protection, as
well as the prohibition against cruel and unusual
punishments. It might be assumed, purely for the
sake of argument, that Harris is correct that his indictment
was defective because it did not allege a necessary mens
rea element of the charged criminal offenses under
Alabama law and because it was not indorsed [sic] as a
"true bill" and signed by the grand jury
foreperson. Even so, Harris's premise that such defects
deprived the trial court of jurisdiction is simply
wrong, as a matter of both Alabama state law and federal law.
See Ex parte Seymour, 946 So.2d 536, 537-39 (Ala.
2006) (an indictment's failure to allege a necessary
element of mens rea is a non-jurisdictional defect
under state law); United States v. Brown, 752 F.3d
1344, 1351 (11th Cir. 2014) (same, under federal law); In
re Goulden, 299 So.2d 325, 326 (Ala. 1974) (failure of
grand jury foreman to endorse indictment as true bill did not
deprive circuit court of jurisdiction so as to render
judgment void); Frisbie v. United States, 157 U.S.
160, 163-65 (1895) (an objection that the indictment lacks
the indorsement [sic] "A true bill" as well as the
signature of the foreman of the grand jury is
non-jurisdictional and may thus be waived).
Moreover, federal habeas relief is not available based upon
an error of state law unless such error also gives rise to a
violation of federal law. Swarthout v. Cooke, 562
U.S. 216, 219 (2011). And on that score, the alleged
indictment defects of which Harris complains could only
amount, at most, to errors of Alabama law and do not
implicate the United States Constitution. For starters,
because the Fifth Amendment's guarantee of indictment by
grand jury does not apply to the States, Alexander v.
Louisiana, 405 U.S. 625, 633 (1972), the sufficiency of
a state indictment is [an] primarily a matter of state law.
Tapia v. Tansy, 926 F.2d 1554, 1560 (10th Cir.
1991); Franklin v. White, 803 F.2d 416, 418 (8th
Cir. 1986). Thus, in this circuit, "the sufficiency of a
state indictment is issue on federal habeas corpus only if
the indictment is so deficient that the convicting court was
deprived of jurisdiction." Heath v. Jones, 863
F.d 815, 821 (11th Cir. 1989); see also Mira v.
Marshall, 806 F.2d 636, 639 (6th Cir. 1986) ("An
indictment which fairly but imperfectly informs the accused
of the offense for which he is to be tried does not give rise
to a constitutional issue cognizable in habeas
proceedings."). And, for reasons explained previously,
none of the purported defects in Harris's indictment
deprived the state court of jurisdiction. Harris's first
five grounds for relief are all due to be rejected.
magistrate judge also found that Harris's sixth and
seventh claims also fail because they are founded upon
alleged violations of Harris's constitutional rights
arising from the Alabama Supreme Court's denial of his
state habeas corpus petition, filed after he was sentenced.
The magistrate judge reasoned that such claims could afford
no basis for federal habeas relief because they attacked only
the state collateral proceedings, not Harris's underlying
criminal judgment itself. (See R&R at 10, citing
Alston v. Department of Cor., Fla., 610 F.3d 1318,
1326 (11th Cir. 2010); Carroll v. Secretary DOC, Fla.
Attorney Gen., 574 F.3d 1354, 1366 (11th Cir. 2009);
Anderson v. Secretary for DOC, 462 F.3d 1319, 1330
(11th Cir. 2006); Spradley v. Dugger, 825 F.2d 1566,
1568 (11th Cir. 1987)).
now acting through retained counsel, has filed a 50-page
objection to the magistrate judge's R&R. He separates
those objections into ten sections, which he identifies as
A. Harris's verified § 2241 petition is not subject
to the additional restrictions of ...