Robinson v. Moulton et al (INMATE 1)

Filing 13

ORDER: This case is before the court on the 4 Recommendation of the Magistrate Judge entered on 10/28/2013, Plaintiff's 6 Objection to the Recommendation, filed on 11/12/2013, the Magistrate Judge's 11 Order of 12/4/2013, and the Plai ntiff's 12 Objection to that order, filed on 12/16/2013. Consequently, following an independent evaluation and de novo review of the file in this case, the plaintiff's 6 Objection is hereby OVERRULED, the 4 Recommendation of the Magis trate Judge is ADOPTED, and it is hereby ORDERED that this case is DISMISSED without prejudice prior to service of process in accordance with the provisions of 28 U.S.C. § 1915(e)(2)(B)(ii). Signed by Honorable Judge W. Harold Albritton, III on 1/9/2014. (dmn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION

JAMES L. ROBINSON, #121865,
Plaintiff,
vs.
JUDGE KEVIN MOULTON, et al.,
Defendants.

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CASE NO. 3:13cv-766-WHA
(WO)

ORDER
This case is before the court on the Recommendation of the Magistrate Judge (Doc. #4),
entered on October 28, 2013, Plaintiff’s Objections to the Recommendation (Doc. #6), filed on
November 12, 2013, the Magistrate Judge’s Order (Doc. #11) of December 4, 2013, and the
Plaintiff’s Objection to that order (Doc. #12), filed on December 16, 2013.
In this 42 U.S.C. § 1983 action, the plaintiff challenges the constitutionality of his
confinement based on concurrent sentences imposed upon him by the Houston County Circuit
Court in May of 1999. The Recommendation was entered that this case be dismissed as the
claims go to the fundamental legality of the length of the plaintiff's confinement and, under Heck
and its progeny, provide no basis for relief at this time. After plaintiff filed his objection to the
Recommendation, he was allowed until December 2, 2013 to file a supplement to his objection.
However, no supplemental objection has been filed; instead, the plaintiff, apparently realizing
that section 1983 is not the appropriate vehicle to seek release from incarceration, filed a motion
to convert his section 1983 complaint to a 28 U.S.C. § 2241 petition for habeas corpus relief.

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This motion was denied for the reasons set forth in the order entered on December 4, 2013 (Doc.
No. 11).
As to the order denying the Plaintiff’s motion to convert this case to a § 2241 habeas
corpus petition, the court finds that the order was neither clearly erroneous nor contrary to law
and, therefore, pursuant to Rule 72(a), Fed.R.Civ.P., it is ORDERED that the Plaintiff’s
objection to that order is OVERRULED. The court will now address the objection to the
Magistrate Judge’s Recommendation.
The plaintiff's arguments in his objection are refuted by the findings contained in the
Recommendation. Specifically, as noted therein:
[I]n an opinion and order issued in Robinson v. Reynolds, et al., Civil Action No. 1:08CV-377-MHT-WC (M.D. Ala. 2010), Robinson’s “argument[s] . . . hinge[] on the following
patently erroneous factual assumptions: (1) the 1988 burglary sentence and the 1999 sentences
ran concurrently during the entirety of his incarceration on the 1988 sentence, including time
served prior to his 1999 convictions; and (2) the order with regard to the 1988 burglary sentence
addressed the 1999 sentences imposed against him. . . . (The argument[s] . . . [are] likewise
without [merit] as the record demonstrates that only the initial 15 years of the 1999 sentences
were to run concurrent with the time Robinson had yet to serve on the 1988 sentence.
Furthermore, Robinson served the sentences concurrently only during the time that he was
incarcerated pursuant to both the 1988 and 1999 sentences. That is, Robinson was not entitled to
credit on his 1999 sentences for time served on the 1988 sentence prior to imposition of the 1999
sentences. Additionally, even allowing Robinson credit for all concurrent time served, once the
1988 sentence terminated, either by actual expiration of the sentence or an order granting time
served, the remaining term of the 25-year sentences imposed upon Robinson in 1999 remained in

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full force and effect. Finally, the order issued with regard to the 1988 burglary sentence did not
reference or address any other sentence and, therefore, did not impact the remaining time of 25
years of the 1999 sentences.”) Robinson v. Reynolds, et al., supra - July 8, 2013 Opinion and
Order at 2, 4-5.
In addition, it should be noted that under well established law the trial court had no
authority to “back-date” the commencement of Robinson’s 1999 sentences by having these
sentences commence the same date as his pre-existing sentence imposed in CC-88-125. First, a
criminal defendant’s sentence begins to run, at the earliest, upon his being held in custody for the
offense in question. Ala. Code § 14-4-9 (1975) (“When it is specifically ordered in the judgment
entry that sentences shall run concurrently, such sentences shall run from the date on which such
convict is received . . . for service of the sentence.”). Moreover, “[a] sentence cannot commence
prior to the date it is pronounced even if it is to be concurrent to a sentence already being
served.” Wilson v. Henderson, 468 F.2d 582, 584 (5th Cir. 1972); United States v. Fiores, 616
F.2d 840, 841 (5th Cir. 1980) (same). Thus, the concurrent sentences imposed against Robinson
on May 4, 1999 could not begin to run, concurrently with any prior sentences or otherwise, prior
to their imposition. Although state law entitles an inmate to receive jail credit for time served
prior to being convicted and sentenced, it strictly limits such credit to time served awaiting trial
on the charge underlying the conviction at issue, i.e., jail credit is not available for any time
served prior to commission of an offense, for time served due to revocation of parole or
probation nor for more than one crime. Ala. Code § 15-18-5 (1975) (“Upon conviction and
imprisonment for any felony or misdemeanor, the sentencing court shall order that the convicted
person be credited with all of his actual time spent incarcerated pending trial for such offense. ”);
Youngblood v. State, 437 So.2d 629 (Ala. Crim. App. 1983). (credit for time served for one

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crime may not be deducted from the term imposed upon conviction of another crime); see also
Rule 26.9(b)(2), Ala.R.Crim.P. (emphasis added) (“In pronouncing the sentence, the trial court
shall . . . [s]tate that a credit will be allowed on the sentence, as provided by law, for time during
which the defendant has been incarcerated on the present charge.”).
Consequently, following an independent evaluation and de novo review of the file in this
case, the plaintiff’s objection is hereby OVERRULED, the Recommendation of the Magistrate
Judge is ADOPTED, and it is hereby
ORDERED that this case is DISMISSED without prejudice prior to service of process in
accordance with the provisions of 28 U.S.C. § 1915(e)(2)(B)(ii).
DONE this 9th day of January, 2014.

/s/ W. Harold Albritton
W. HAROLD ALBRITTON
SENIOR UNITED STATES DISTRICT JUDGE

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