Brumfield v. Bently et al
MEMORANDUM OPINION. Signed by Judge Sharon Lovelace Blackburn on 10/19/2015. (KAM, )
2015 Oct-19 PM 01:25
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
GEORGE A. BRUMFIELD,
ROBERT BENTLEY, Governor;
JEFFERSON S. DUNN, Commissioner;
MARK BURTON, Director of Central
CASE NO. 5:14-CV-0365-SLB
This case is presently pending before the court on Petition for Writ of Habeas Corpus
Under 28 U.S.C. § 2241, (doc. 1),1 filed by petitioner George A. Brumfield. Petitioner
alleges that he is being held unlawfully by the Alabama Department of Corrections [ADOC]
after completion of his sentence. Respondents – Robert Bentley, in his capacity as Governor
of Alabama; Jefferson S. Dunn, in his capacity as the Commissioner of ADOC;2 and Mark
Burton, Director of Central Records – deny petitioner has completed service of his sentences
or that he is otherwise entitled to release from the ADOC’s custody. (See generally doc. 13.)
Upon consideration of the record, the submissions of the parties, and the relevant law, the
Reference to a document number, [“Doc. ___”], refers to the number assigned to each
document as it is filed in the court’s record.
At the time, petitioner filed his Petition for habeas relief, the Commissioner of ADOC
was Kim Thomas. The current Commissioner Dunn is substituted for Thomas by operation
of law. See Fed. R. Civ. P. 25(d).
court is of the opinion that the Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2241,
(doc. 1), is due to be denied.
I. FACTUAL AND HISTORICAL BACKGROUND
While serving a 50-year prison sentence in Louisiana, petitioner was indicted by a
grand jury in Tuscaloosa County, Alabama, for two rapes occurring in July 1977.3 (See
Doc.1 at 2; doc. 13-1 at 6-7.) Arrest warrants were issued for the petitioner on July 2, 1979,
based on the indictments. (See doc. 1 at 2.) On January 8, 1981, he was transported from
prison in Louisiana and incarcerated in the Tuscaloosa County Jail for trial on the
indictments, which were then assigned case numbers CC-81-1 and CC-81-2. (Id.; doc. 13-1
at 6-7.) The two cases were tried separately. On October 6, 1981, petitioner was convicted
in case CC-81-2 and sentenced to 20 years. (Doc. 13-1 at 6.) On November 4, 1981, he was
convicted in case CC-81-1 and sentenced to 150 years. (Id. at 7.) Neither sentence was to
run concurrent with any other sentence, including the Louisiana sentence. (See doc. 13-1 at
1 [citing, inter alia, Ala. Code 14-3-38].)4 Petitioner’s convictions were affirmed by the
When he was arrested in Louisiana, petitioner confessed to committing rapes in
Alabama, Louisiana, and Mississippi. See State v. Talbot, 408 So. 2d 861, 880 (La. 1980).
Testimony was offered at petitioner’s trial that he had confessed to two rapes in Tuscaloosa
County while in jail in Louisiana. See Brumfield v. State, 453 So. 2d 1097, 1099 (Ala. Crim.
See Ala. Code 14-3-38(a)(“When a convict is sentenced to imprisonment in the
penitentiary on two or more convictions, unless it is specifically ordered in the judgment
entry that such sentences be served concurrently, such sentences shall be cumulative and
shall be served consecutively, the first term thereof beginning to run from the date on which
such prisoner is received at the penitentiary, reformatory or jail for service of the sentence
or at some place of detention to await transportation to the place where his sentences are to
Alabama Court of Criminal Appeals. See Brumfield v. State, 453 So. 2d 1097 (Ala. Crim.
Following his convictions, petitioner remained in Alabama. In November 1981, he
testified at as hearing on another Alabama inmate’s petition for writ of error coram nobis.
See Howton v. State, 432 So. 2d 548, 549 (Ala. Crim. App. 1983). He confessed to the
assault for which this inmate, Roger Dale Howton, had been convicted. Id. He subsequently
recanted his confession at a hearing in February 1982. Id. While in Alabama, he was
transferred to the ADOC at the Kilby Prison Hospital on February 1, 1982. (Doc. 13-1 at
9.) He was assigned an inmate number and given a sentence-calculation sheet showing a
“sentence computation date” of October 6, 1981, the date of his conviction in case CC-81-2.
(Id. at 6, 9.) The sentence-calculation sheet showed petitioner’s “short date” for release as
January 7, 2066, and a “long date” of January 7, 2151. (Id.) Petitioner was returned to
Louisiana from the Fayette County Jail on or about March 10, 1982. (Doc. 1 at 19.) The
ADOC lodged a detainer with Louisiana authorities in early 1984.5
As petitioner approached the completion of his Louisiana sentence, prison officials
in that state sent notice to Alabama, dated June 18, 2007, that petitioner would complete his
Louisiana sentence on August 2, 2007. (Doc. 13-1 at 2, 12.) The notice indicated that a
be served and his second and subsequent terms, each, beginning on the expiration of the
The detainer is dated January 31, 1984, (doc. 13-1 at 10), and the Louisiana
acknowledgment of the detainer was dated February 13, 1984, (id. at 11).
waiver of extradition would be sent to the petitioner for his execution. (Id. at 12.) Petitioner
did not sign the waiver of extradition, and, on August 16, 2007, Alabama governor Bob Riley
signed and sent to Louisiana a Request for Executive Rendition, requesting the return of
petitioner to Alabama for the service of his sentence on two counts of rape. (Doc. 1 at 20.)
On September 24, 2007, Louisiana governor Kathleen Babineaux Blanco issued her
executive warrant “to arrest and aid and assist in arresting said fugitive [petitioner] and to
deliver the said fugitive when arrested to” agents of the State of Alabama for return. (Id. at
Petitioner arrived in ADOC custody on October 3, 2007. (Doc. 13-1 at 13.) ADOC
recalculated his sentence. (Id.) He received credit for 422 days of service toward his 20-year
sentence and 126 days of service toward his 150-year sentence. (Id.) His Inmate Summary
as of 07/13/2011, shows his “short date” for release is August 5, 2091, and his “long date”
for release is August 5, 2176. (Id.)
On a date not made clear by the record, petitioner filed his petition for a state writ of
habeas corpus in the Circuit Court of Limestone County. That court dismissed the petition
on December 9, 2011, writing:
This cause comes before this Court on the Petitioner’s request for a writ
of habeas corpus concerning his claim that he has not been credited with all the
time he is due against his two sentences for having committed first-degree
rape. The Respondents have filed a motion to dismiss or, in the alternative,
motion for summary judgment. Along with this motion, the Respondents have
submitted an affidavit and records explaining the Petitioner’s convictions and
sentences, as well as the calculation of his release date. The Petitioner has
filed a response objecting to the Respondents’ summary judgment motion.
The Court has undertaken a review of both the Petitioner’s claims and
the Respondents’ arguments and evidence supporting their dispositive motion.
After due consideration, the Court has determined that the Petitioner is not
entitled to habeas relief. To the extent the Petitioner contends he has been
deprived of credit against his current Alabama sentences based on time he
served in Louisiana on other felony sentences that he received in that state, he
has failed to show any judicial intent that such sentences were to be served
concurrently. Likewise, the Petitioner has failed to show that the Respondents
have taken incentive time which he has previously earned. Finally, to the
extent the Petitioner asserts that Alabama constructively pardoned him by
releasing him to the custody of Louisiana in 1982, such argument has no basis
in law or fact.
Therefore, the Respondents’ motion for summary judgment is due to be
GRANTED, and this action is hereby DISMISSED. . . .
(Doc. 13-2 at 2.) The Alabama Court of Criminal Appeals affirmed summarily the dismissal
of the state petition and the Alabama Supreme Court denied certiorari review. (Doc. 13-3;
Petitioner filed the instant federal Petition for Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2241 on March 4, 2014.6 The court entered its order for the respondents to show
The court notes that petitioner has previously filed a § 2241 case that was dismissed
voluntarily. See Brumfield v. Ala. Dept. of Corrections, Case No. 5:12-CV-2248-SLB-TMP.
This Petition is governed by 28 U.S.C. § 2254. “[W]hen a state prisoner is challenging the
very fact or duration of his physical imprisonment, and the relief he seeks is a determination
that he is entitled to immediate release or a speedier release from that imprisonment, his sole
federal remedy is a writ of habeas corpus.” Reiser v. Rodriguez, 411 U.S. 475, 500
(1973)(emphasis added). In this Circuit –
A state prisoner seeking post-conviction relief from a federal court has but one
remedy: an application for a writ of habeas corpus. All applications for writs
of habeas corpus are governed by § 2241, which generally authorizes federal
courts to grant the writ – to both federal and state prisoners. Most state
cause why relief should not be granted on April 11, 2014, and the respondents filed their
answer, supported with exhibits, on May 21, 2014. The parties were notified on May 22,
2014, that the petition was ready for summary adjudication, and petitioner was given the
opportunity to traverse the answer by the respondents. Petitioner filed his traverse on June
prisoners’ applications for writs of habeas corpus are subject also to the
additional restrictions of § 2254. That is, if a state prisoner is “in custody
pursuant to the judgment of a State court,” his petition is subject to § 2254. If,
however, a prisoner is in prison pursuant to something other than a judgment
of a state court, e.g., a pre-trial bond order, then his petition is not subject to
Medberry v. Crosby, 351 F.3d 1049, 1062 (11th Cir. 2003). Clearly, petitioner is in the
custody of ADOC because he was convicted in state court. Therefore, although he asserted
his Petition is not governed by § 2254, this court’s authority to issue the writ is constrained
by that section. See id. at 1059-60.
Petitioner also filed a writ of mandamus with the Eleventh Circuit, seeking an
expedited ruling on his petition; he did not serve a copy of his petition on this court.
Moreover, the Eleventh Circuit did not send notice of petition to this court directly. It sent
notice to an electronic mailbox in the court’s Clerk’s Office, which was not forwarded to this
court or to the Magistrate Judge and was not filed in the court’s record. As a result, the
Eleventh Circuit has now entered an order directing the court to rule on the Petition within
14 days. This order was sent directly to the Magistrate Judge, but not to the undersigned.
In his § 2241 petition, petitioner raises two claims related to the service of his 170year sentence in Alabama. As to Claim One, he alleges that he “was erroneously released
from Alabama prison and is entitled to credit for time spent at large after being erroneously
released by State officials.” (Doc. 1-1 at 6.) In support of this claim, he alleges that he “was
found guilty in Tuscaloosa on October 6, 1981, then on February 2, 198 the county jail of
Tuscaloosa County[,] Alabama, took [petitioner] to Kilby Correctional Facility to serve his
170 years in Alabama instead of tak[ing him] back to Louisiana prison. [Petitioner’s] good
time started and should have run while he was at large in the Louisiana prison system.” (Id.
at 7.) In Claim Two petitioner asserts that he “was released from Alabama Prison Custody
of DOC[, which was erroneously done, [and] that his release[ ] was no fault of his own.”
(Id.) In support of the claim, he states, “The plaintiff was entered into the Alabama
The court herein discusses the merits of the Petition. The Magistrate Judge issued
a Show Cause Order to petitioner, ordering him to show cause why this Petition should not
be dismissed as untimely filed. The court notes that petitioner previously filed a Petition
seeking identical relief on June 22, 2012. See Brumfield v. Ala. Dept. of Correc., Case No.
5:12-CV-2248-SLB-TMP, doc. 1 (N.D. Ala. June 22, 2012). This action was dismissed on
petitioner’s Motion on November 13, 2012. Id., doc. 10. Petitioner filed his current Petition
on March 3, 2014, more than a year following dismissal of his previous petition. Even
assuming that his prior petition was timely filed and tolled the running of the habeas statute,
this Petition is clearly time-barred. 28 U.S.C. § 2244(d)(1)(D)(“A 1-year period of limitation
shall apply to an application for a writ of habeas corpus by a person in custody pursuant to
the judgment of a State court. The limitation period shall run from the latest of – . . . (D) the
date on which the factual predicate of the claim or claims presented could have been
discovered through the exercise of due diligence.”). The Magistrate Judge did not indicate
his reasons for not dismissing this Petition on the statute-of-limitations ground. Therefore,
this court has chosen to address the merits.
Department of Corrections on February 1, 1982 and then ejected from the state by Fayette
County, when taken back to the Louisiana Prison. This was done on March 10, 1982.” (Id.)
The court construes these allegations to state two claims for relief: (1) petitioner was denied
“good time” credits against his Alabama sentence while serving his Louisiana sentence
because he started serving his Alabama sentence before being returned to Louisiana; and (2)
Alabama constructively pardoned him or otherwise lost jurisdiction over him for service of
his Alabama sentence when the state returned him to Louisiana after admitting him to the
ADOC and commencing his Alabama sentence.
A. “GOOD TIME CREDITS”CLAIM
Petitioner’s first claim for habeas relief contends that he has been denied good time
credits to which he is entitled against the service of his 170-year sentence. Specifically, he
claims that, because his crimes of conviction occurred prior to 1980, he was entitled to both
Statutory Good Time [SGT] and Incentive Good Time [IGT] under Alabama law applicable
to his convictions, and that these credits accrued on the date he first was admitted to the
ADOC on February 1, 1982. Respondents deny petitioner is entitled to any relief on this
claim because he was never entitled to IGT and that, in fact, he has been credited with 85
years of SGT, which is all the time to which he is entitled.
Before May 19, 1980, good time credit applicable to service of sentences in Alabama
came in two forms, under two distinct statutes. A prisoner sentence for a crime occurring
before 1980 could be entitled to both SGT, pursuant to Ala. Code §§ 14-9-1 through 14-9-4
(repealed), and IGT under Ala. Code §§ 14-9-20 through 14-9-25 (repealed). Under the SGT
statute, a prisoner was automatically credited, on the first day of his sentence, with one day
of SGT credit for every day the prisoner was anticipated to serve. This meant that SGT
worked a 50% reduction of the imposed sentence on the first day served, subject to that credit
being revoked, in whole or in part, for disciplinary reasons. By contrast, the IGT statute
authorized the ADOC to award up to two IGT-credit days for every day served by
“exceptional” prisoners. Section 14-9-21 provided, in relevant part: “The board of
corrections is hereby empowered to create within the existing classification system a new
classification system which would authorize a maximum deduction from the term of the
sentence of an exceptional inmate of two days for each one day served.” See Carlile v.
Alabama Dep’t of Corr., 887 So. 2d 1010, 1012 (Ala. Crim. App. 2003). Unlike SGT, which
was automatically credited, IGT was discretionary with the ADOC and was credited only as
the prisoner served each day of his sentence. See, e.g. Risner v. State, 522 So. 2d 336, 337
(Ala. Crim. App. 1988)(inmate must “earn” IGT through actual service of sentence). Thus,
while SGT had the effect of automatically reducing a prisoner’s sentence by half, IGT credits
accumulated, if at all, only as the prisoner served actual days in prison. For every day served,
an “exceptional” inmate could, in the ADOC’s discretion, be awarded two IGT-credit days
for every day served, thereby reducing his sentence by three days for every day actually
served (i.e., one day of actual service plus two days of IGT credit).
In the instant case, petitioner has been awarded his full SGT. The sentencecalculation sheets provided both by petitioner and the ADOC reflect that he has been credited
with 85 years against his 170-year sentence. Even with that credit, his minimum release date,
or “short date,” is in 2066. Thus, there has been no miscalculation with respect to the SGT
component of his claim for “good time” credit, and he not entitled to habeas relief on this
Also, the court finds no error with respect to the IGT because petitioner was not
entitled to accrue those credits while he was not actually serving his Alabama sentence.
From March 10, 1982, when he was returned to Louisiana to serve his sentence, until
October 3, 2007, when he was returned to the ADOC upon extradition from Louisiana,
petitioner was not serving his Alabama sentence; he was serving his Louisiana sentence to
which the Alabama sentence was consecutive. Under the IGT statute, petitioner could not
accrue additional IGT credits until he was serving the Alabama sentence. While he was in
Louisiana, he was not serving the Alabama sentence and, thus, not eligible for any additional
IGT credit. Moreover, even if petitioner had received IGT credits since he began serving his
Alabama sentence,9 such credit would not reduce his sentence to the point of being entitled
The record does not indicate whether or not petitioner has received IGT credit.
to release.10 Accordingly, petitioner is not entitled to any habeas relief on the claim that he
has not been properly credited with all “good time” credits to which he was entitled.
The Petition will be denied as to this ground for relief.
Petitioner’s second claim asserts that, when Alabama returned petitioner to Louisiana
in 1982 to continue serving a sentence there, it constructively pardoned him or otherwise lost
jurisdiction to require him to return to Alabama to re-start serving the 170-year sentence
imposed on October 6, 1982, or, alternatively, that it is required to credit him with the time
he served in Louisiana against the Alabama sentence.
1. Credit for Time Served in Louisiana
Although the record is not entirely clear, respondents assert that Alabama “borrowed”
petitioner from Louisiana in 1981 to prosecute him with respect to the two rape indictments
returned in 1979 by the Tuscaloosa County grand jury.11 Once he was convicted in late 1981,
For example, prior to returning to Alabama, petitioner’s minimum release date was
in 2066. Assuming petitioner had received two days of IGT credit for every day served since
his return in 2007, his minimum release date would be 2050.
Petitioner has not alleged otherwise. The court assumes that he was transported
from Louisiana to Alabama pursuant to the provisions of the Interstate Agreement on
Detainers, an interstate compact under which a “receiving state” may lodge a detainer with
a “sending state” to obtain custody of a prisoner once he has completed his sentence. If the
prisoner demands a speedy trial with respect to charges underlying the detainer, the “sending
state” sends the prisoner to the “receiving state” for resolution of the charges. Once the
charges are resolved by trial or plea, the prisoner is returned to the “sending state” to
complete his sentence there. If, however, the “receiving state” returns the prisoner to the
“sending state” before the resolution of its charges, the anti-shuttling provision of the
agreement requires dismissal of the “receiving state’s” charges. See Alabama v. Bozeman,
he was transferred to the ADOC on February 1, 1982, where he was assigned a prison
number and given a preliminary calculation regarding service of his sentence. A little over
a month later, on March 10, 1982, he was returned to Louisiana. Petitioner contends he was
“released as a state prisoner of Alabama,” and this caused Alabama to lose its power to
require him to return to Alabama after completing his sentence in Louisiana to serve the 170year sentence.12 (See doc. 15 at 3.) Alternatively, he contends that Alabama was required
to credit him with time served in Louisiana after his return in 1982.
533 U.S. 146, 153 (2001). Petitioner has not alleged any violation of the Interstate
Agreement, and there does not appear to be any dispute that his trials in Alabama took place
before he was returned to Louisiana.
Petitioner also contends that he was seized illegally because Alabama’s Request for
Interstate Rendition stated that he was a “fugitive from justice in an unknown state,” when
they knew he was serving his Louisiana sentence. (Doc. 15 at 3; see also doc. 1 at 3 [In
August of 2007, the Governor of Alabama and ADOC issued a “Fugitive Warrant” against
George, who was not a fugitive because the Official’s [sic] of Alabama were the ones who
took him back to Louisiana.”].) The “Request for Interstate Rendition” does not state that
Brumfield is a “fugitive from justice in an unknown state;” it does refer to petitioner as a
“fugitive.” However, at the time, petitioner was a fugitive because he had been convicted
of committing crimes in Alabama, he had left the state, he had been found in Louisiana, and
he had refused to return to Alabama voluntarily. See Mozingo v. State, 562 So. 2d 300, 304
(Ala. Crim. App. 1990); see also Mitchell v. Obenski, 134 Fed. Appx. 548, 551 (3d Cir.
2005)( “The Supreme Court held nearly a century ago that ‘all that is necessary to convert
a criminal . . . into a fugitive from justice is that he should have left the State after having
incurred guilt there.” (quoting Strassheim v. Daily, 221 U.S. 280, 285 (1911) and citing Gee
v. Kansas, 912 F.2d 414, 418 (10th Cir. 1990); Moncrief v. Anderson, 342 F.2d 902, 904
(D.C. Cir. 1964))); Strachan v. Colon, 941 F.2d 128, 130 (2d Cir. 1991)(“Yet, all that is
necessary to make a person a fugitive from justice is that he leave a state under whose laws
he has incurred guilt.”). Therefore, the court finds petitioner has failed to establish that he
was not a fugitive in 2007.
There are several theories under which the execution of a lawfully imposed sentence
may become unlawful, but it is unclear in this case upon which of these the petitioner relies.
The petitioner seems to argue that Alabama lost its jurisdiction to require him to serve the
170-year sentence when it returned him to Louisiana to resume serving the 50-year sentence
imposed in that state. He also seems to argue that Alabama must give him credit for the time
he was in Louisiana as “credit while at liberty.” However, neither of these theories support
Insofar as petitioner contends that Alabama “released” or constructively pardoned him
to Louisiana, he has failed to prove that he was ever released – erroneously or otherwise.
Petitioner was brought to Alabama from Louisiana to face Alabama charges. At the time,
he was serving a 50-year sentence in Louisiana. Following the trials in Alabama, petitioner
received sentences totaling 170 years. These sentences were to be served after petitioner
completed his Louisiana sentence. After he was convicted and after he gave testimony in
another case in Alabama, petitioner was returned to Louisiana to continue serving that
Citing United States v. Martinez, petitioner appears to argue that he was “at liberty”
after he was returned to Louisiana in 1982 and is entitled “to credit toward his Alabama
[sentence] from February 25, 1982[,] the date he was erroneously released from [ADOC]
rather than being extradited back as a fugitive to the custody of the [ADOC in 2007].” (Doc.
1 at 5.) The court finds petitioner has failed to prove he was ever “at liberty” at any time
between his conviction in Louisiana and today. See Scott v. United States, 434 F.2d 11, 22
(5th Cir. 1970)(describing petitioner as “at liberty” when he was released from custody and
“was allowed to go out into the free world”). Until returned to Alabama in 2007, he was
serving the Louisiana sentence, even while he was loaned to Alabama for purposes of
prosecution and testimony.
A district court in Georgia has explained the “time at liberty” doctrine’s origins as
The doctrine of credit for time at liberty was set forth in White v.
Pearlman, 42 F.2d 788 (10th Cir. 1930). In Pearlman, the warden of a United
States Penitentiary advised a prisoner that his term was about to expire. The
prisoner informed the warden that there must have been a mistake because he
was sentenced to serve five years. However, the warden “told him that the
records showed three years, and he was going to abide by the records.”
Pearlman, 42 F.2d at 789. The prisoner was released from prison, and he
re-established his home. More than two years later, the prisoner was informed
that he was “wanted”; he voluntarily returned to prison to serve the remainder
of his sentence. Id. The Tenth Circuit affirmed the district court’s grant of
petition for writ of habeas corpus and determined “that where a prisoner is
discharged from a penal institution, without any contributing fault on his part,
and without violation of conditions of parole, that his sentence continues to run
while he is at liberty.” Id.
The Eleventh Circuit addressed the doctrine of credit for time at liberty
in Little v. Holder, 396 F.3d 1319 (11th Cir. 2005). The petitioner in Little
was serving a state sentence and was temporarily released to federal custody
to face charges for using a firearm during the commission of a drug trafficking
crime. Little pleaded guilty to the federal charges, and his federal sentence was
to run consecutively with his state sentence. Little was returned to state
custody after he was sentenced in federal court; however, the USMS never
“lodged a detainer with the state”, and federal authorities were not notified of
his release from state custody. Little, 396 F.3d at 1320. Little was at liberty
for nearly four years when he was arrested a second time by the state. This
time, the USMS lodged a detainer with the state regarding his outstanding
federal sentence. Id. After the expiration of his second state sentence, Little
was taken into federal custody to begin service of his federal sentence. Little
sought his immediate release from federal prison because “his erroneous
release was due to negligence by the Marshals Service”, and he should have
been credited for the time he was at liberty. Id. The Eleventh Circuit
“recognize[d] that some courts grant credit for time at liberty to prisoners who
have been forced to serve their sentences in installments through a series of
releases and reincarcerations.” Id. at 1321. The Eleventh Circuit specifically
mentioned the Pearlman case and noted its holding that a prisoner cannot be
required to serve his sentence in installments. Id. at 1322. However, the
Eleventh Circuit found that Little had “not been forced to serve his federal
sentence in installments. Rather, the commencement of his federal sentence
was merely delayed. Little has served his federal sentence continuously and
without any interruptions since it began[.]” Id.
Goins v. Hickey, No. CV207-135, 2008 WL 3819830, at *5-*6 (S.D. Ga. Aug. 13, 2008).
Petitioner, quoting United States v. Martinez, 837 F.2d 861, 865 (9th Cir. 1988),
Under the doctrine of credit for time at liberty[,] a convicted person is entitled
to credit against his sentence for the time he was erroneously at liberty
provided there is a showing of simple or more negligence13 on behalf of the
government and provided the delay in execution of sentence was through no
fault of his own.
(Doc. 1 at 6 [footnote added].) Petitioner argues that he was released from ADOC custody
after he began serving his sentence in 1981. (Id. at 7.) He argues, without support and
contrary to the evidence, that “from March 10, 1982 [until] August 16, 2007[,] neither
George [nor] the State of Louisiana . . . had [any] indication that George was wanted by
The Martinez opinion actually states that the petitioner must show “simple or mere
negligence.” Martinez, 837 F.2d at 865 (emphasis added).
Alabama authorities. George further asserts that Alabama authorities had opportunities to
know of his whereabouts and/or to file a proper warrant or detainer.” (Id. at 9.)
The Eleventh Circuit has made clear that the “credit for time at liberty” doctrine does
not apply where the delay occurs prior to the commencement of service of the sentence.
This Court’s prior precedent sets out the general rule that a delay in the
commencement of a sentence does not, by itself, constitute service of that
sentence. See, e.g., Scott v. United States, 434 F.2d 11, 23 (5th Cir. 1970)
(“This Court holds that the mere lapse of time that occurred here [27 months],
without petitioner undergoing any actual imprisonment to which he was
sentenced . . . does not constitute service of that sentence, and this sentence
remains subject to be executed, notwithstanding the delay in executing it.”);
United States ex rel. Mayer v. Loisel, 25 F.2d 300, 301 (5th Cir. 1928)( “Mere
lapse of time without the appellant undergoing the imprisonment to which she
was sentenced did not constitute service of the sentence, which remained
subject to be enforced . . . .”). This prior precedent compels us to conclude a
convicted person, like Barfield, who has yet to serve any part of her sentence,
is not entitled to credit for time spent erroneously at liberty when there is
merely a delay in executing her sentence. A delayed sentence, like Barfield’s,
is still subject to be executed. Scott, 434 F.2d at 23; Mayer, 25 F.2d at 301.
United States v. Barfield, 396 F.3d 1144, 1147-48 (11th Cir. 2005)(internal footnotes
omitted). The same is true here.
The evidence of record does not support a finding that petitioner began serving his
Alabama sentences in 1981 or a finding that he has been at liberty at any time since he was
convicted in Louisiana. As set forth above, following petitioner’s return to Louisiana, the
state of Alabama requested Louisiana to file a detainer on petitioner based on his conviction
on the two rape cases; Louisiana agreed. (Doc. 13-1 at 10-11.) During his time in Alabama,
petitioner remained a Louisiana prisoner, with Louisiana retaining the right to require the full
execution of his sentence in that state before surrendering him to Alabama. Because his
Alabama’s sentences were consecutive to the Louisiana sentence, petitioner did not start to
serve his Alabama sentences until he was released by Louisiana after he had satisfied its
sentence in 2007. The court finds petitioner did not begin to serve his Alabama sentences
until his return to Alabama in 2007.
The Petition is due to be denied as to any claim based on petitioner’s alleged
entitlement to credit against his Alabama sentences for time served in Louisiana.
Petitioner contends that Alabama waived his sentences by returning him to Louisiana
in 1982. Although the Eleventh Circuit has recognized the doctrine of waiver of jurisdiction
by a state, it has limited such a waiver to unusual circumstances due to affirmative or gross
misconduct by state officials rising to the level of a due process violation. The court has
This Court has held a delay in the execution of a sentence can, under certain
circumstances, amount to a due process violation under the waiver of
jurisdiction theory. See Piper v. Estelle, 485 F.2d 245 (5th Cir. 1973); Shields
v. Beto, 370 F.2d 1003 (5th Cir. 1967); see also Mobley v. Dugger, 823 F.2d
1495, 1496-97 (11th Cir. 1987)(citing Piper). The waiver of jurisdiction
theory is premised on the constitutional protection against arbitrary and
capricious official action. See Camper v. Norris, 36 F.3d 782, 784 (8th Cir.
1994); Mobley, 823 F.2d at 1496. The theory is commonly traced to our
decision in Shields. In Shields, we held the state’s inaction for 28 years
constituted a waiver of its jurisdiction over the prisoner. 370 F.2d at 1005-06.
We further explained the state violated the prisoner’s due process rights when
it required him to serve his sentence after waiving its jurisdiction over him.
Id. at 1006. In Piper, we clarified Shields, explaining when it is that official
misconduct rises to the level of a due process violation. See 485 F.2d at 246.
[In order for a delay in the execution of a sentence to be
repugnant to the Fourteenth Amendment,] it is not sufficient to
prove official conduct that merely evidences a lack of eager
pursuit or even arguable lack of interest. Rather the waiving
state’s action must be so affirmatively wrong or its inaction so
grossly negligent that it would be unequivocally inconsistent
with “fundamental principles of liberty and justice” to require a
legal sentence to be served in the aftermath of such action or
Mobley, 823 F.2d at 1496-97 (alteration in original)(quoting Piper, 485 F.2d
United States v. Barfield, 396 F.3d 1144, 1148-49 (11th Cir. 2005).
The facts in the instant case fail to show such affirmative wrongdoing or grossly
negligent conduct by any Alabama officials that might arguably rise to the level of being
“unequivocally inconsistent with ‘fundamental principles of liberty and justice.’” Mobley,
823 F.2d at 1496-97. Alabama officials “borrowed” petitioner from Louisiana to prosecute
him on two rape charges and for him to testify in another case. After conviction and his
testimony in the other matter, Alabama returned petitioner to Louisiana to continue serving
that sentence. In 1984, Alabama requested that Louisiana place a detainer on petitioner and
Louisiana did. (Doc. 13-1 at 10-11.) In 2007, petitioner, having satisfied his Louisiana
sentence, was extradited to Alabama. Nothing in the record shows that Alabama officials’
conduct was wrong, much less “unequivocally inconsistent” with principles of due process.
The Petition will be denied as to petitioner’s claim that Alabama waived its
jurisdiction over him by returning him to Louisiana to complete his sentence.
Based on the foregoing considerations, the court finds that the petitioner is not entitled
to § 2241 habeas corpus relief with respect to his Alabama sentence. He is not entitled to
release from that sentence, even with all proper SGT and IGT good time credits being
An Order denying Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2241,
(doc. 1), and dismissing the instant action with prejudice will be entered contemporaneously
with this Memorandum Opinion.
CERTIFICATE OF APPEALABILITY
Rule 11 of the Rules Governing § 2254 Proceedings, provides, “The district court
must issue or deny a certificate of appealability when it enters a final order adverse to the
applicant.” The applicant for habeas corpus relief “cannot take an appeal unless a circuit
justice or a circuit or district judge issues a certificate of appealability under 28 U.S.C. §
2253(c).” Fed. R. App. P. 22(b)(1). And, the “certificate of appealability may issue . . . only
if the applicant has made a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2)(emphasis added). To make a substantial showing of the denial of a
constitutional right, the applicant must show “that reasonable jurists could debate whether
(or, for that matter, agree that) the petition should have been resolved in a different manner
or that the issues presented were adequate to deserve encouragement to proceed further.”
Miller–El v. Cockrell, 537 U.S. 322, 336 (2003)(citations and internal quotations omitted).
For the reasons set forth above, the court finds that Mr. Brumfield has not
demonstrated that he was denied any constitutional right or that the issues he raises are
reasonably debatable and/or deserve encouragement to proceed further. Therefore, the court
finds the issuance of a certificate of appealability is not warranted in this case.
The Certificate of Appealability will be denied.
DONE this 19th day of October, 2015.
SHARON LOVELACE BLACKBURN
SENIOR UNITED STATES DISTRICT JUDGE
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