United States District Court, N.D. Alabama, Eastern Division
VIRGINIA EMERSON HOPKINS UNITED STATES DISTRICT JUDGE
January 29, 2018, the magistrate judge entered a Report and
Recommendation, (doc. 31), recommending that the petition for
writ of habeas corpus be dismissed with prejudice. Petitioner
filed timely objections on February 7, 2018. (Doc. 32).
magistrate judge concluded that Petitioner's claims
related only to the State of Alabama's calculation of his
sentence: specifically, whether or not the Alabama Board of
Pardons and Parole appropriately applied “dead
time” (i.e., the time between a delinquent
parolee's date of delinquency and date of rearrest).
(Doc. 31 at 5, 10-12). As a consequence, the magistrate judge
found Petitioner had failed to identify a basis in
federal law for his habeas petition, nor a way in
which the Alabama Court of Criminal Appeals' decision
denying Petitioner's state habeas petition was contrary
to or an unreasonable application of federal law.
(Id. at 12).
Petitioner's objections reargue the merits of his claims
or raise arguments for the first time. Petitioner reiterates
that it is unlawful to hold a prisoner in custody beyond the
expiration of his sentence. (See doc. 32 at 2-3).
This is true, but this does not challenge the magistrate
judge's finding that Petitioner's claims are about
whether the State of Alabama correctly followed its own law
when it applied dead time to his sentence. Next, Petitioner
appears to assert new claims of technical failures by the
Alabama Department of Corrections and the Alabama Board of
Paroles: that the former incorrectly processed the record of
one of his convictions, and that the latter violated two
sections of Alabama law. (Id. at 2). Neither of
these claims were contained in the petition, and neither
appears to implicate federal law. Petitioner has
also attached several records he says support his argument
that no dead time should have applied to his sentence:
showing no dead time on May 28, 1996 (id. at 11);
five years, eight months, and five days of dead time on
December 16, 2010 (id. at 12); and six years, six
months, and two days of dead time on May 19, 2016
(id. at 13). (Id. at 5). Leaving aside that
this is new evidence not presented to the magistrate judge in
support of the petition, this evidence simply confirms that
dead time was applied to Petitioner's sentence
as he accrued it. Finally, Petitioner points to instances in
which the Alabama Court of Criminal Appeals has found dead
time was incorrectly applied to a prisoner's sentence.
(Id. at 5-6). The cases Petitioner cites show a
state court correcting the state's application of its own
law, which is not the function of a federal court reviewing a
federal habeas petition. See McCullough v.
Singletary, 967 F.2d 530, 535 (11th Cir.1992) (“A
state's interpretation of its own laws or rules provides
no basis for federal habeas corpus relief, since no question
of a constitutional nature is involved.”) (citation
lone challenge to the report and recommendation itself is
that the magistrate judge incorrectly applied Birdsell v.
State of Ala., 834 F.2d 920 (11th Cir. 1987). As he did
in his traverse (see doc. 25 at 2-3), Petitioner
states that he is in the same position as the petitioner in
Birdsell, and that the magistrate judge has
“totally disregarded” the meaning of that case.
(Doc. 32 at 3). The magistrate judge discussed
Birdsell, noting that the holding of the case
relates only to the “in custody” requirement of
28 U.S.C. § 2254, which is not at issue in this
petition. (Doc. 31 at 13). Petitioner challenges this finding
on the basis that he had completely served his previous
sentence and was not “in custody” pursuant to 28
U.S.C. § 2254(a); thus, he says, “this Federal
court must properly dismiss the petition for lack of
jurisdiction.” (Doc. 32 at 4). Petitioner then states
that his sentence expired on May 19, 2009, and that he could
not be incarcerated beyond that date. (Id.).
appears to confuse the “in custody” requirement
of § 2254 with the ability of the State of Alabama to
revoke his parole. They are qualitatively different. Section
2254 provides that habeas relief is only available to persons
“in custody pursuant to a judgment of a State
court....” 28 U.S.C. § 2254(a). This is a
jurisdictional limitation on the power of the federal habeas
court to grant relief. Stacey v. Warden, Apalachee
Correctional Institution, 854 F.2d 401 (11th Cir. 1988);
Duvallon v. Florida, 691 F.2d 483 (11th Cir. 1982).
In other words, the “in custody” requirement
under § 2254 is about who can receive habeas relief from
this Court, not about who the State of Alabama may exert
custody over. Taking Petitioner's argument that he was
not “in custody” pursuant § 2254 at face
value would mean that this Court could not grant his petition
at all and give him the relief he seeks, not that the State
of Alabama could not have revoked his parole; therefore,
Birdsell does not support Petitioner's claim.
The magistrate judge's analysis of Birdsell was
Court has considered the entire file in this action, together
with the report and recommendation, and has reached an
independent conclusion that the report and recommendation is
due to be adopted and approved. Accordingly, the Court hereby
adopts and approves the findings and recommendation of the
magistrate judge as the findings and conclusions of this
court. The petition for writ of habeas corpus is due to be
DISMISSED. A separate Order will be entered.
Court may issue a certificate of appealability “only if
the applicant has a made a substantial showing of the denial
of a constitutional right.” 28 U.S.C. 2253(c)(2). To
make such a showing, a “petitioner must demonstrate
that reasonable jurists would find the district court's
assessment of the constitutional claims debatable or wrong,
” Slack v. McDaniel,529 U.S. 473, 484 (2000),
or that “the issues presented were adequate to deserve
encouragement to proceed further.” Miller-El ...