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Calhoun v. Alabama Department of Corrections

Alabama Court of Criminal Appeals

April 12, 2019

Derrick Calhoun
v.
Alabama Department of Corrections

          Appeal from Montgomery Circuit Court (CV-18-372)

          McCool, Judge.

         Derrick Calhoun appeals the Montgomery Circuit Court's dismissal of his pro se petition for a writ of certiorari challenging a prison disciplinary proceeding in which he was found guilty of violating the administrative rules and regulations of the Department of Corrections ("the DOC"). Specifically, Calhoun was found guilty of two counts of violating Ala. Admin. Code (Department of Corrections), Admin. Reg. no. 403, rule violation 911, forcible sexual assault. For each violation, Calhoun was punished with loss of canteen privileges for 60 days, loss of telephone privileges for 60 days, loss of visiting privileges for 60 days, and disciplinary segregation for 45 days. Calhoun did not lose any good time as a result of the violations.

         The DOC charged Calhoun with two counts of violating Ala. Admin. Code (Department of Corrections), regulation no. 403, rule violation 911, and served him with notice of the charges on March 22, 2016. The charges were based on an investigation that revealed that Calhoun had sexually assaulted two inmates. After conducting a disciplinary hearing, the hearing officer determined that Calhoun was guilty as charged. On March 24, 2016, the warden approved the hearing officer's decision and recommended sanctions, and Calhoun was served with a completed copy of the disciplinary report, which detailed the decision and sanctions against him.

         In June 2018, Calhoun petitioned the Montgomery Circuit Court for a writ of certiorari asking the circuit court to "reverse the judgment of the [DOC] disciplinary hearing officer." (C. 8.) In response, the DOC moved the circuit court to dismiss Calhoun's petition. The DOC's sole argument was that Calhoun's petition "falls under the auspices of the Alabama Prison[er] Litigation Reform Act," § 14-15-1 et seq., Ala. Code 1975 ("APLRA") and, thus, the petition is barred by the one-year limitations period set forth in § 14-15-4(i), Ala. Code 1975. (C. 23-24.) The circuit court issued an order summarily dismissing Calhoun's petition. The only stated basis for the circuit court's decision was that Calhoun's petition was "untimely." (C. 26.)

         Section 14-15-4(i) of the APLRA provides that "[n]o prisoner may file a petition for writ of certiorari more than one year after the incident or omission complained of or one year after any administrative remedy has been exhausted, whichever comes later." In the present case, it is undisputed that on March 24, 2016, the hearing officer's decision and recommended sanctions were approved by the warden and Calhoun was served with a completed copy of the disciplinary report that detailed the approved decision and sanctions against him. Calhoun did not file his petition for writ of certiorari challenging the DOC's decision until June 2018, well beyond the one-year limitations period set forth in § 14-15-4(i), Ala. Code 1975. Accordingly, the circuit court did not err in dismissing Calhoun's petition.

         Based on the foregoing, the judgment of the circuit court is affirmed.

         AFFIRMED.

          Kellum, J., concurs; McCool, J., concurs specially, with opinion, joined by Cole and Minor, JJ.; Windom, J., concurs in the result.

          McCOOL, Judge, concurring specially.

         Clearly, Calhoun's petition for a writ of certiorari was filed beyond the one-year limitations period set forth in § 14-15-4(i), Ala. Code 1975; thus, the Montgomery Circuit Court did not err in dismissing Calhoun's petition. However, I write specially to invite the Alabama Supreme Court to clarify whether this Court has jurisdiction to review a circuit court's dismissal of a petition for a writ of certiorari challenging a prison disciplinary proceeding in light of the enactment in 2013 of the Alabama Prisoner Litigation Reform Act, § 14-15-1 et seq., Ala. Code 1975 ("the APLRA"), in 2013 and the Alabama Supreme Court's subsequent decision in Ex parte Cook, 202 So.3d 316 (Ala. 2016).

         Section 12-3-9, Ala. Code 1975, sets forth this Court's appellate jurisdiction:

"The Court of Criminal Appeals shall have exclusive appellate jurisdiction of all misdemeanors, including the violation of town and city ordinances, habeas corpus and all felonies, including all post conviction writs in criminal cases."

         An appeal from the denial of a petition for a writ of certiorari concerning a prison-disciplinary proceeding in which the prisoner does not lose any good time does not appear to fall under any of the areas set forth in § 12-3-9. A petition for a writ of certiorari concerning a prison disciplinary proceeding does not involve a misdemeanor, habeas corpus, or a felony and, thus, is not included in § 12-3-9. Further, although this case involves a writ that happened to be filed after Calhoun had been convicted of a crime, Calhoun's petition is not a "post conviction writ[] in [a] criminal case[]," such as a Rule 32, Ala. R. Crim. P., petition for postconviction relief, because Calhoun's petition has nothing to do with his conviction or resulting sentence. In fact, the word "including" in § 12-3-9 indicates that the postconviction writ is a specific area within the previously listed general areas, i.e., misdemeanor, habeas corpus, or felony. Again, Calhoun's petition does not involve a misdemeanor, habeas corpus, or felony. Instead, Calhoun's petition is a civil case involving ...


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