Phillips v. Cochran

Filing 9

Order re: 8 Response to Order to Show Cause. Respondent is ORDERED to file an amended answer, by 6/20/2013, to address this Court's concerns with the exhaustion arguments contained in the present answer. In addition, the respondent is to expand the record with additional information as further set out by 6/20/2013. Signed by Magistrate Judge William E. Cassady on 5/17/2013. copy mailed to petitioner. (sdb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ROBERT E. PHILLIPS,

:

Petitioner,

:

vs.

:

SAM COCHRAN,

CA 13-0039-KD-C

:

Respondent.

ORDER
This cause is presently before the Court on Robert E. Phillips’ petition for writ of
habeas corpus, filed pursuant to 28 U.S.C. § 2241 (Doc. 1), and the answer of respondent
Sam Cochran (Doc. 8). Instead of now entering a report and recommendation regarding
appropriate disposition of the instant § 2241 petition, the undersigned need order the
respondent to file an amended answer and expand the record with additional
information so that the undersigned will be in a better position to dispose of this matter.
Before describing the information that the undersigned needs for appropriate
disposition of this matter, and why the undersigned needs the respondent to file an
amended answer, some discussion of the facts underlying this action is required.
On August 16, 2011, Phillips was arrested and charged with possession of a
controlled substance, to-wit: cocaine. (See Doc. 8, Exhibit A, at 4 & 10.) In addition,
following his arrest on the drug possession charge, Phillips was charged with
intimidating a witness after making the following comments to a suspected prostitute in
the presence of arresting officers: “’I know she set me up. . . . I’m gonna do what I gotta
do when I get out of jail.’” (Id. at 10, MOTION TO HOLD WITHOUT BOND.) The State,

therefore, requested that the court hold Phillips without bond at the Mobile County
Metro Jail pending a bond hearing “on these cases” in a pleading filed at 4:54 p.m. on
August 16, 2011. (Id.) There is nothing in the information supplied to this Court to
suggest that petitioner appeared before a judicial officer on the date of his arrest but it is
clear that following the State’s late afternoon filing, Mobile County District Judge Bob
Sherling granted the State’s motion by endorsement: “[T]o be held w/o bond until
[defendant] has hearing on new charges.” (Id.)
It appears that a bond hearing was set for August 23, 2011 and mention is made
on the docket sheets regarding an attorney, Drey Albert Owen, III, being appointed on
that date;1 however, the records are a bit confusing because they seem to indicate that
perhaps a bond hearing was conducted with respect to the cocaine possession charge on
that date2—the docket sheet on the possession case indicating only that a preliminary
hearing was set on the cocaine charge for September 19, 2011—but also appear to
indicate that the bond hearing on the intimidating a witness charge was reset for
September 19, 2011. (Compare Doc. 8, Exhibit D, at 4 with id., Exhibit E, at 4.)
Everyone does seem to agree that Phillips appeared in court on September 19,
2011 before Mobile County District Judge Charlie McKnight. (Compare Doc. 8, Exhibit B,
at 2 (Phillips indicating his last court appearance was September 19, 2011) with id.,
Exhibits D & E, at 4).) Ron Pearman was appointed to represent Phillips at the
proceeding conducted on September 19, 2011 (see Doc. 8, Exhibits F & G); the
1

There are no orders in the record supplied by respondent, however, evidencing
Owen’s appointment to represent Phillips on these two charges as there are evidencing Ron
Pearman’s appointment. (See Doc. 8, Exhibits F & G.)
2

Interestingly, there are some notes on the front of the Arrest/Book-In Report,
apparently made by the district judge, referencing past convictions and the following: “no bond
8-22-11[.]” (Doc. 8, Exhibit A, at 1.)

2

preliminary hearing was waived in both cases3 on that date but there is no indication
that bond was discussed (see Doc. 8, Exhibits D & E, at 4). However, the exhibits do
reflect that a motion for bond hearing was filed on September 26, 2011, in the
intimidating a witness case (Doc. 8, Exhibit E, at 4)—presumably by Pearman—but
apparently no concomitant motion filed in Phillips’ cocaine possession case (see Doc. 8,
Exhibit D, at 4). And while petitioner was subsequently granted bail in the amount of
$5,000 on the intimidating a witness charge (Doc. 8, Exhibit E, at 4 (docket entry for
October 3, 2011)), there is absolutely no indication why Phillips was not granted bail on
the cocaine possession charge,4 a Class C felony,5 the same as intimidating a witness,6
and a bailable offense under Alabama law.7
The only other matter apparent from the docket sheets supplied to this Court is
that on February 26, 2013, some seventeen (17) months after his arrest on two Class C
felonies, Phillips penned a “Petition and Motion for Issuance of Fast and Speedy Trial”
(Doc. 8, Exhibit B), which was ultimately noted on the district court docket sheet as
having been filed in both cases on March 6, 2012 (Doc. 8, Exhibits D & E, at 4).8 Mobile

3

Thus, both cases were waived to the Grand Jury. (See Doc. 8, Exhibits D & E, at 2

& 4.)
4

“Art. I, § 16, Alabama Constitution of 1901, provides that every person charged
with a noncapital offense has the constitutional right to pretrial bail.” Ex parte Colbert, 717 So.2d
868, 871 (Ala. 1998).
5

“Unlawful possession of a controlled substance is a Class C felony.” Ala.Code §

13A-12-212(b).
6

“Intimidating a witness is a Class C felony.” Ala.Code § 13A-10-123(c).

7

See Ala.R.Crim.P. 7.2(b) (bail schedule establishing a recommended range of
$2,500 to $15,000 on commission of a Class C felony).
8

Thus, Phillips has been imprisoned now for some twenty-one (21) months
without indictment on charges of committing two Class C felonies.

3

County District Court Judge Charlie McKnight did not enter an order demanding a
response from the State and setting a hearing; instead, Judge McKnight, by order dated
March 12, 2013, simply forwarded Phillips’ motion to the Mobile County District
Attorney’s Office. (Doc. 8, Exhibit C.)9 And while Judge McKnight’s action in
forwarding Phillips’ motion to the District Attorney’s Office is apparently not
unprecedented, see Austin v. State, 562 So.2d 630, 631 (Ala.Crim.App. 1989) (“No further
action is indicated by the record until April 30, 1986, when the appellant filed a ‘Motion
for Fast and Speedy Trial.’ On May 5, 1986, this motion was transferred to the district
attorney’s office by the district court.”), the undersigned simply cannot “follow” the
respondent’s exhaustion argument that “[b]ecause the State has not yet responded and
the trial court has not ruled on this motion, full appellate review of a decision on this
issue has not been sought in the Alabama Court of Criminal Appeals and the Alabama
Supreme Court.” (Doc. 8, at 6.) The Court’s inability in this regard relates to the state
9

Respondent argues parenthetically in his answer that “[i]t appears that Phillips
has filed this petition for writ of habeas corpus, pro se, while continuing to be represented by
appointed counsel, Hon. Charlie Ronald Pearman[]” and, as such, his petition should be
dismissed because “he has no legal right to a hybrid representation.” (Doc. 8, at 2 n.1.) This is
simply not an example of “hybrid” representation. Hybrid representation is a situation in which
a defendant wants to represent himself as co-counsel at trial and while the respondent is correct
that a defendant does not have a constitutional right to hybrid representation, Cross v. United
States, 893 F.2d 1287, 1291-1292 (11th Cir.) (“This court has held repeatedly that an individual
does not have a right to hybrid representation.”), cert. denied, 498 U.S. 849, 111 S.Ct. 138, 122
L.Ed.2d 105 (1990), it is equally true that a trial court can allow hybrid representation, Gill v.
Mecuster, 633 F.3d 1272, 1296 (11th Cir.) (allowing defendant to represent himself as co-counsel
at trial is permissible “hybrid” representation under Faretta), cert. denied sub nom. Gill v.
Vaughan,
U.S.
, 132 S.Ct. 826, 181 L.Ed.2d 535 (2011). So, petitioner representing himself in
this Court (federal court) does not constitute “hybrid” representation in any sense of that phrase
since Pearman was appointed to represent Phillips only in the state district court and there is no
constitutional right to appointment of counsel in habeas corpus proceedings. Cf. Arthur v. Allen,
452 F.3d 1234, 1249 (11th Cir.) (“Prisoners, including those under a sentence of death, have no
constitutional right to the appointment of counsel for postconviction proceedings.”), order
modified on reh’g on other grounds, 459 F.3d 1310 (11th Cir. 2006), cert. denied, 549 U.S. 1338, 127
S.Ct. 2033, 167 L.Ed.2d 763 (2007). Indeed, the act of Judge McKnight in forwarding Phillips’
motion for a fast and speedy trial to the district attorney’s office—as opposed to simply striking
same because of Pearman’s previous appointment—begs the question of whether Pearman still
represents Phillips.

4

district court’s failure to take the motion under submission and order the State of
Alabama to file a response by a date certain.10 Indeed, the state court’s failure in this
regard begs the question of whether petitioner now finds himself in some sort of legal
“no man’s land” or “limbo”11 such that he should be excused from the exhaustion

10

The undersigned has no reason to suspect that the state district court is not as
equally concerned, as is this Court, with the fact that Phillips, to date, has not been indicted
despite his arrest on August 16, 2011 and being “bound over” to the grand jury on September
19, 2011. Compare Austin, supra, 562 So.2d at 631, 632 & 633-634 (“The record indicates that, on
September 24, 1984, a complaint was filed in the District Court of Mobile County, charging the
appellant with robbery in the first degree. A warrant was issued on the same day. No further
action is indicated by the record until April 30, 1986, when the appellant filed a ‘Motion for Fast
and Speedy Trial.’ On May 5, 1986, this motion was transferred to the district attorney’s office
by the district court. Thereafter, on August 8, 1986, a ‘Motion to Quash Detainers’ was filed by
the appellant. On August 14, 1986, the appellant pleaded not guilty and demanded a
preliminary hearing, which was set for September 11, 1986. The case action summary shows
that no bond was set, as the appellant was serving a sentence. On September 11, 1986, the State
moved to nol-pros, with leave to present the case to the grand jury; this motion was granted
over the objection of the appellant. Subsequently, on November 23, 1987, an indictment was
returned, again charging the appellant with the first degree robbery of Desiree Morris. . . . On
October 14, 1988, the appellant filed a pro se motion to dismiss, charging that he had been
denied his right to a speedy trial. . . . On November 28, 1988, the appellant was arraigned and
pleaded not guilty. A trial date was set for January 9, 1989. On January 6, 1989, the appellant
filed a motion to dismiss, again alleging the denial of his right to a speedy trial. A hearing was
held on that motion on January 9, 1989. . . . The trial court denied the appellant’s motion. . . .
[W]e find an unreasonable delay without justification or acceptable excuse, which resulted in
actual prejudice to the appellant. Therefore, we find that the appellant’s constitutional right to a
speedy trial has been violated. Therefore, his conviction is reversed, his sentence is vacated, and
the indictment is dismissed with prejudice.” (citations omitted)) with State v. Jones, 35 So.3d 644,
655 (Ala.Crim.App. 2009) (“The length of the delay in prosecuting a defendant begins from the
date of the indictment or the date the defendant is arrested pursuant to a warrant, whichever
event comes earlier.”) and Goodson v. State, 588 So.2d 509, 510-511 (Ala.Crim.App. 1991) (“The
right to a speedy trial is ‘triggered when a criminal prosecution has begun and extends only to
those persons who have been “accused” in the course of that prosecution.’ This right has been
said to be activated when a warrant of arrest is issued, ‘because this is when the prosecution is
commenced under § 15-3-7, Code of Alabama 1975.’” (citations omitted)). While Phillips was
initially arrested without a warrant, it appears that such warrant has since been supplied, at
least with respect to the cocaine possession charge. (See Doc. 8, Exhibit A, at 5.)
11

It certainly appears that at least with respect to a writ of habeas corpus there is a
need for petitioner to get some ruling at the local level before appealing to Alabama’s appellate
courts, see Williams v. State, 511 So.2d 265, 267 (Ala.Crim.App. 1987) (“One whose constitutional
right to a speedy trial is violated may be granted relief by habeas corpus where his motion for
discharge is denied and no other remedy is available.”); Aaron v. State, 497 So.2d 603, 605
(Ala.Crim.App. 1986) (“Pending trial, the remedy for illegal confinement by reason of the
erroneous postponements of trial is habeas corpus where a motion for discharge has been

(Continued)
5

requirement on the basis that “there is an ‘absence of available state corrective process’
or ‘circumstances exist that render such process ineffective to protect [his] rights.’”
Robinson v. Hughes, 2012 WL 255759, *2 (M.D. Ala. Jan. 5, 2012) (citations omitted), report
and recommendation adopted, 2012 WL 253975 (M.D. Ala. Jan. 27, 2012).
In light of the foregoing, respondent is ORDERED to file an amended answer,
on or before June 20, 2013, to address this Court’s concerns with the exhaustion
arguments contained in the present answer. In addition, on or before that same date,
respondent is ORDERED to expand the record in this case, pursuant to 28 U.S.C. foll. §
2254 Rule 7,12 to provide this Court with the following additional information: (1) a
transcribed copy of all proceedings attendant to Phillips’ appearance in the Mobile
County District Court on August 23, 2011 (or August 22, 2011) on all charges (see Doc. 8,
Exhibits D & E, at 4); (2) a transcribed copy of all proceedings attendant to Phillips’
appearance in the Mobile County District Court on September 19, 2011 on all charges
(see id.); (3) the motion for bond hearing filed on September 28, 2011, in the intimidating
a witness case and all written documentation regarding the granting of a $5,000 bond in

denied and no other remedy is available.”), and respondent has not suggested any other
avenues of challenge, such as a petition for writ of mandamus, reasonably available to Phillips
and to which the state district court would have to respond, cf. Ex parte Anderson, 979 So.2d 777,
779 (Ala. 2007) (writ of mandamus directed to circuit court judge on grounds of the denial of the
right to a speedy trial). In other words, the respondent need establish for this Court how
Phillips can garner any ruling from the Mobile County District Court that he can then exhaust
in Alabama’s appellate courts, or, otherwise, present to this Court a definable remedy Phillips
can pursue in the state courts of Alabama.
12

For the same reason that § 2254 exhaustion principles apply to § 2241 petitions,
see, e.g., Smith v. Price, 2010 WL 749352, *2 n. 3 (M.D. Ala. Mar. 3, 2010) (“Although the statutory
language of § 2241 itself does not contain an exhaustion requirement, this Circuit has
determined that the requirements of § 2254, including exhaustion of state remedies, apply to a
subset of petitioners to whom § 2241(c)(3) applies, i.e., those who are ‘in custody in violation of
the Constitution or laws or treaties of the United States.’”), the rules governing § 2254 cases also
govern § 2241 cases.

6

that case on October 3, 2011 (see Doc. 8, Exhibit E, at 4); and (4) any and all paperwork
attendant to Judge McKnight “no bonding” Phillips on the possession of cocaine
charge.13
DONE and ORDERED this the 17th day of May, 2013.
s/WILLIAM E. CASSADY
UNITED STATES MAGISTRATE JUDGE

13

What this Court is looking for is documentation reflecting the reasons why the
cocaine possession charge, a Class C felony, would result in a “no bond” (though a bondable
offense under Alabama law) but the intimidating a witness charge, also a Class C felony, would
later merit a bond of $5,000.

7