Twyman v. Alabama Department of Corrections et al (INMATE 2)

Filing 107

MEMORANDUM OPINION AND ORDER; that this petition for habeas corpus relief is hereby DENIED and that the petition hereby DISMISSED with prejudice. Signed by Hon. Chief Judge Mark E. Fuller on 9/30/2010. (jg, )

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Twyman v. Alabama Department of Corrections et al (INMATE 3) Doc. 107 IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION R O B E R T TWYMAN. JR., #147435, P e titio n e r, v. A L A B A M A DEPARTMENT O F CORRECTIONS, et al., R e sp o n d e n ts . ) ) ) ) ) ) ) ) ) ) C IV IL ACT. NO. 2:06cv833-MEF (W O - DO NOT PUBLISH) M E M O R A N D U M OPINION AND ORDER T h is cause is before the court on petitioner Robert Twyman's ("Twyman")'s petition f o r a writ habeas corpus pursuant to 28 U.S.C. 2241.1 Twyman, an inmate incarcerated by th e Alabama Department of Corrections, contends that he was arrested on a void fugitive w a rra n t and that he has been held in custody in violation of the Fourth and Fourteenth A m e n d m e n ts . According to Twyman, when he was returned to prison following the re v o c a tio n of his parole, correctional officials improperly added five years, eight months and f iv e days to his sentence as "dead time" because the fugitive warrant upon which he was a rre s te d was voided by the Alabama Board of Paroles and Pardons. The respondents filed a n answer in which they contend that Twyman's habeas petition is due to be denied because h i s claims provide no basis for relief. (Doc. # 14). Twyman was provided an opportunity This cause of action is before the court on a petition for writ of habeas corpus filed by the petitioner, an inmate in the custody of the Alabama Department of Corrections. Although Twyman filed this action on a form for use in filing a habeas application under 28 U.S.C. 2254, it is clear from the allegations contained therein that this case is more appropriately filed under the provisions of 28 U.S.C. 2241. 1 Dockets.Justia.com to file a response to the answer of respondents and has done so. Counsel was also appointed to represent the petitioner. Upon review of the pleadings filed in this case and the law of this C irc u it, the court concludes that no evidentiary hearing is required and that Twyman's 2241 p e titio n is due to be denied. See generally Rule 8, Rules Governing Section 2254 Cases in U n ite d States District Courts. BACKGROUND T h e pertinent facts are undisputed. Twyman was released on parole by the State of A la b a m a on May 27, 1996. His supervision was subsequently transferred from Talladega C o u n ty, Alabama to Cobb County, Georgia. On November 10, 1997 Twyman was declared d e lin q u e n t by the Alabama Board of Pardons and Paroles. (Doc. # 45, Att. # 2). On January 2 7 , 1998 the Board ordered the delinquency be voided. (Id., Att. #4). On March 26, 1998, T w ym a n was arrested in Cobb County, Georgia and charged with Aggravated Assault and D is o rd e rly Conduct. On June 8, 1998, the Alabama Board of Pardons and Paroles again declared Twyman d e lin q u e n t and authorized the Alabama Department of Corrections to issue a warrant for his a rre s t. (Doc. # 39). The Commissioner of the Alabama Department of Corrections issued th e fugitive warrant on June 9, 1998. (Id.) On September 15, 1998, Twyman pled guilty to misdemeanor reckless conduct c h a rg e s in Cobb County, Georgia. Twyman was arrested in Talladega County, Alabama on February 13, 2004. Relying 2 on the fugitive warrant issued on June 8, 1998, the Alabama Department of Corrections re q u e s te d a detainer be placed on Twyman on February 25, 2004. (Doc. # 39 at 10). Twyman's parole was subsequently revoked. Because the fugitive warrant was outstanding f ro m June 8, 1998 until Twyman was arrested on February 13, 2004, that time is considered " d e a d time," by the State of Alabama, and Twyman gets no credit for that time towards his s e n te n c e . Consequently, because the State includes five years, eight months and five days o f dead time to Twyman's incarceration, his anticipated release date is now September 4, 2015. DISCUSSION In itia lly, Twyman did not challenge the revocation of his parole in 2004. Rather, he a s s e rte d that the defendants violated his constitutional rights before and during the parole revocation process related to his March 2004 parole hearing, and that the Board has used " d e a d time" to improperly prolong his incarceration until 2015. Specifically, Twyman c o m p la in s that: 1. B o a r d ' s action of declaring him delinquent and denying him credit for time f ro m June 8, 1998 until February 13, 2004, constitutes arbitrary and capricious a c tio n violative of the Fourteenth Amendment, and he should get credit for f iv e (5) years, eight (8) months, and five (5) days he served while on parole. 2. T h e fugitive warrant upon which he was held was not issued by a neutral and d e ta c h e d magistrate, and thus, the warrant was constitutionally infirm. 3 3. H e was denied due process at the revocation proceeding because he was d e n ie d the opportunity to confront and cross-examine witnesses at the hearing. 1 . The "Dead Time" Claim. Twyman argues that the declaration of delinquency u p o n which the June 1998 fugitive warrant was based was withdrawn on January 27, 1998. Consequently, the fugitive warrant should have been declared void. In essence, Twyman's c la im boils down to his contention that members of the Alabama Board of Pardons and P a ro le s are relying on false and inaccurate information to deny him credit for time between J u n e 8, 1998 and February 13, 2004. The Constitution proscribes only the use of admittedly false information. See Monroe v . Thigpen, 932 F.2d 1437 (11th Cir. 1991). The plaintiff relies on an assertion made by the A la b a m a Department of Corrections in an earlier case filed in this district to argue that the B o a rd admitted that the fugitive warrant was not, but should have been, voided to support h is claim that the Board is relying on erroneous information to prolong his incarceration. "For some reason, unknown to the Board [of Pardons and Paroles], the fugitive warrant is su e d by the Department of Corrections was not voided." (Twyman v. Campbell, CV 2 :0 4 c v 3 4 1 -M E F (M.D. Ala. 2004) (Doc. # 16). Twyman's reliance is misplaced. On N o v e m b e r 10, 1997, Twyman was declared delinquent by the Board. (Doc. # 45, Att. # 2). On January 27, 1998, the Board "ordered that the delinquency be voided, the warrant for [ T w ym a n 's ] arrest be withdrawn, and that he be CONTINUED UNDER parole supervision." 4 (Id., Att. # 4; see also Doc. # 91, Ex. 1). It is clear from the evidence that the November 10, 1 9 9 7 , declaration of delinquency was voided by the Board on January 27, 1998. (Doc. # 91, E x . 1). However, Twyman was subsequently arrested in Cobb County, Georgia, on March 26, 1 9 9 8 , and charged with Felony Aggravated Assault and Misdemeanor Disorderly Conduct. (Doc. # 87, Ex. 3). Twyman was declared delinquent on June 5, 1998 based on his March 2 6 , 1998 arrest in Georgia. The fugitive warrant issued by the State of Alabama was a direct re s u lt of Twyman's arrest in Georgia. The fugitive warrant was not issued based on the N o v e m b e r 1997 arrest. Consequently, while it is true that the Board voided the first d e lin q u e n c y declaration, the voiding of the first declaration of delinquency has no effect on th e second declaration of delinquency issued in June 1998. In Monroe v. Thigpen, 932 F.2d 1437 (11th Cir. 1991), the court considered a pro se i n m a t e ' s complaint alleging that he was deprived of due process because erroneous in f o rm a tio n in his prison file was used to deny him fair consideration for parole and m in im u m custody status. Monroe alleged that presentence report information indicating he h a d raped the victim of his crime was false. The defendants admitted the presentence in f o r m a ti o n was false. Acknowledging that he had no liberty interest in parole, Monroe c la im e d a due process right to be fairly considered for parole. He contended that the d e f e n d a n ts ' reliance on admittedly false information in order to deny him parole or minimum s e c u rity classification violated due process. 5 The Monroe court held that the defendants' reliance on admittedly false information to deny Monroe consideration for parole was arbitrary and capricious treatment violative of th e Constitution. However, the Monroe court was careful to distinguish its holding from its p rio r decision in Slocum v. Ga. State Bd. of Pardons and Paroles, 678 F.2d 940 (11 th Cir. 1 9 8 2 ). O u r holding today does not conflict with our earlier holding in Slocum, supra. In Slocum, the plaintiff, who had been denied parole, made the conclusory a lle g a tio n that the Board must have relied upon erroneous information because o th e rw is e the Board would surely have granted him parole. Slocum, 678 F.2d a t 941. The plaintiff then sought to assert a due process right to examine his p riso n file for the alleged errors. Unlike the instant case, in Slocum the state d id not admit that it had relied upon false information in denying parole nor d id the plaintiff present any evidence that his prison file even contained any f a ls e information. We held in Slocum that prisoners do not state a due process c la im by merely asserting that erroneous information may have been used d u rin g their parole consideration. Id. at 942. We also determined that prisoners d o not have a due process right to examine their prison files as part of a g e n e ra l fishing expedition in search of false information that could possibly e x is t in their files. Id. In the case at bar, we are confronted with prison a u th o ritie s who admit that information contained in Monroe's files is false and th a t they relied upon such information, at least in part, to deny Monroe parole a n d to classify him as a sex offender. As we stated, the parole statute does not a u th o riz e state officials to rely on knowingly false information in their d e te rm in a tio n s . Thomas [v. Sellers], 691 F.2d [487] at 489 [(11th Cir. 1982)]. S lo c u m controls the disposition of the instant case. The defendants do not admit that th e 1998 delinquency declaration was voided and thus, false, and they deny any knowing re lia n c e on false information. While Monroe, supra, establishes a constitutional claim for t h e knowing use of false information by parole officials, the instant case is controlled by S lo c u m , supra. In Slocum, the Court held that prisoners do not state a due process claim by 6 merely asserting that erroneous information exists in their prison files. Moreover, "prisoners c a n n o t make a conclusory allegation regarding the use of [false] information as the basis of a due process claim." Jones v. Ray, 279 F.3d 944, 946 (11th Cir. 2001)(While use of false in f o rm a tio n in a parole file can be a due process violation, prisoners cannot make a c o n c lu s o ry allegation regarding the use of such information as the basis of a due process c la im ). Twyman points to no other false information relied on by the Board, and his mere a s s e rtio n that the Board relied on false information does nothing more than raise the p o s s ib ility that the information provided by the Board is false. Twyman has failed to produce a n y evidence that the defendants relied on information which they knew to be false. T w ym a n 's contention that the 1998 delinquency declaration was voided, without any e v id e n c e that it had been voided, is simply insufficient. Since it is undisputed that the d e f e n d a n ts did not rely on admittedly false information, the plaintiff is entitled to no relief a s a matter of law and summary judgment is due to be granted in favor of the defendants on th is claim. 2. T h e Warrant Claim. Twyman also contends that his Fourth Amendment rig h ts were violated when he was seized on a fugitive warrant that was not issued by a neutral a n d detached magistrate, and was not supported by reasonable cause. First, Twyman is s im p ly factually incorrect when he argues that the declaration of delinquency upon which the f u g itiv e warrant was based was voided by the Board of Pardons and Paroles. The declaration o f delinquency issued by the Board after Twyman's arrest in Georgia was never voided or 7 withdrawn. Consequently, that declaration of delinquency constitutes reasonable cause to s u p p o rt the fugitive warrant issued pursuant to Ala. Code. 15-22-31. The law is clear that although a parolee is entitled to the protection of procedural due p ro c e s s at a parole revocation hearing, see Overton v. Bazzetta, 539 U.S. 126, 138 (2003), " th e full panoply of rights due a defendant in [a criminal prosecution] does not apply to p a r o l e revocations." Morrissey, 408 U.S. at 480. A parolee stands in a fundamentally d if f e re n t position from a person newly arrested or charged with a crime. State law authorizes th e Department of Corrections to issue a warrant for a paroled prisoner if there is "reasonable c a u s e to believe that such prisoner has lapsed, or is probably about to lapse, into criminal w a ys or company or has violated the conditions of his parole in an important respect, ...." A la . Code 15-22-31(a). At the time the fugitive warrant issued, Twyman had been arrested in Georgia and charged with Aggravated Assault and Disorderly Conduct. The fact that T w ym a n had not yet been convicted or pled guilty to the charges is immaterial. The charges f o rm the basis of the declaration of delinquency, and parole may revoked based a parolee's c o m m iss io n of a new offense, even where the parolee is not convicted of the offense, if s u f f ic ie n t evidence is presented at the revocation hearing to establish that the parolee c o m m itte d acts constituting the new offense. Morrisey, 408 U.S. at 484. Sufficient evidence w a s presented at the revocation hearing that Twyman was charged with these new offenses, a n d subsequently pled guilty to criminal trespass and reckless conduct. See Doc. # 87. A c c o rd in g ly, summary judgment is due to be granted in favor of defendants on this claim. 8 3. The Due Process Claim. Finally, Twyman argues that the defendants deprived h im of due process with respect to his parole revocation hearing held in 2004 because two w itn e s s e s from Georgia were not called to testify on his behalf. His claim arising from an a lle g e d lack of due process in the parole revocation process entitles him to no relief. It is well settled that parole revocation evokes a liberty interest and certain due process p ro te c tio n s are required. Ellard v. Alabama Board of Pardons and Paroles, 824 F.2d 937 (1 1th Cir. 1987). Although a parolee is entitled to the protection of procedural due process a t a parole revocation hearing, see Overton v. Bazzetta, 539 U.S. 126, 138 (2003), "the full p a n o p ly of rights due a defendant in [a criminal prosecution] does not apply to parole re v o c a tio n s ." Morrissey v. Brewer, 408 U.S. 471, 480 (1972). In Morrissey, the Court sets o u t the requirements for a constitutionally sound parole revocation hearing. [D]ue process is flexible and calls for such procedural protections as the p a rtic u la r situation demands. "[C]onsideration of what procedures due process m a y require under any given set of circumstances must begin with a d e te r m in a tio n of the precise nature of the government function involved as w e ll as the private interest that has been affected by governmental action. [ D u e process requires] that some minimal inquiry be conducted at or r e a s o n a b ly near the place of the alleged parole violation or arrest and as p ro m p tly as convenient after arrest while information is fresh and sources are a v a ila b le . Such an inquiry should be seen as in the nature of a "preliminary h e a rin g " to determine whether there is probable cause or reasonable ground to b e lie v e that the arrested parolee has committed acts that would constitute a v io la tio n of parole conditions. T h e re must also be an opportunity for a hearing... prior to the final decision on re v o c a tio n by the parole authority.... The revocation hearing must be tendered w ith in a reasonable time after the parolee is taken into custody. 9 Morrissey v. Brewer, 408 U.S. 471, 481-488 (1972). T h e revocation of parole may be based upon reasonable grounds, unlike criminal p ro c e e d in g s which require a standard of proof "beyond a reasonable doubt." See Id., at 490. Twyman maintains that he was denied due process at the revocation proceedings because n e ith e r his probation officer from Georgia nor the victim were required to appear and testify o n his behalf. He does not specify how the testimony of these witnesses would have assisted h is defense. It is undisputed that Twyman pled guilty to misdemeanor charges in Georgia. A certified copy of Twyman's conviction in Cobb County, Georgia was presented at the p a ro le revocation hearing. Twyman testified at the parole hearing that the victim did not a p p e a r in court in Georgia, and that he and his parole officer in Georgia agreed that the c h a rg e s in Georgia would not violate his parole in Alabama. It is undisputed that Twyman's p a ro le was revoked not only because of the charges in Georgia but because he moved without p e rm iss io n . Thus, the petitioner fails to show how the hearing officer's refusal to require the te s tim o n y, which was cumulative to the submitted evidence, deprived him of due process, o r was prejudicial to him. The record of the parole revocation hearing provides an ample b a s is for the Board's decision to revoke the petitioner's parole. Accordingly, summary ju d g m e n t is due to be granted in favor of the defendants on this claim. 10 CONCLUSION F o r the foregoing reasons, it is ORDERED and that this petition for habeas corpus relief is hereby DENIED and that th e petition hereby DISMISSED with prejudice. D O N E this the 30 day of September, 2010. th /s/ Mark E. Fuller CHIEF UNITED STATES DISTRICT JUDGE 11

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