IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE SOUTHERN DISTRICT OF ALABAMA

NORTHERN DIVISION

WILLIE JAMES POWELL, )

AIS # 00151747, )

Petitioner, )

)

v. ) Civil Action No. 14-00064-CG-N

)

WANDA LIGHTNER, Warden, )

Mobile Community Based Facility/ )

Community Work Center, )

Respondent. )

REPORT AND RECOMMENDATION

Petitioner Willie James Powell (“Powell”), an Alabama prisoner proceeding pro 

se, has filed a Petition for Writ of Habeas Corpus by a Person in State Custody (Doc. 1). 

The Respondent timely filed an Answer (Doc. 14) to the petition, to which Powell has 

filed replies (Docs. 17, 21). Under SD ALA Local Rule 72.2(c)(4), this matter has been 

referred to the undersigned Magistrate Judge for entry of a recommendation as to the 

appropriate disposition, in accordance with 28 U.S.C. § 636(b)(1)(B)-(C) and Rule 8(b) of 

the Rules Governing Section 2254 Cases in the United States District Courts. Upon 

consideration, and for the reasons stated herein, it is RECOMMENDED that Powell’s 

habeas petition (Doc. 1) be DISMISSED without prejudice for failure to exhaust his 

state court remedies. Should this recommendation be adopted, it is further 

RECOMMENDED that Powell be found not entitled either to a Certificate of 

Appealability or to proceed in forma pauperis on appeal.

I. Background

Powell’s petition represents that, in the Circuit Court of Dallas County, 

Alabama, he was convicted of robbery first degree, for which he was sentenced on 

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November 3, 1988 (Case No. 87-262), and of possession of a controlled substance, for 

which he was sentenced on May 1, 1989 (Case No. 89-43T). (Doc. 1 at 2, 12). He 

received a sentence of 23 years imprisonment for the robbery conviction and 5 years for 

the possession conviction. (Id.). Powell did not directly appeal from his convictions and 

sentences, nor did he initially file any petition for post-conviction relief in state court. 

(Id. at 3).

Powell filed the instant habeas petition on February 13, 2014 (the date he

declares, under penalty of perjury, that he delivered the petition to prison authorities 

for mailing (id. at 13)).1 Powell does not challenge his convictions or resulting 

sentences. Rather, his sole claim is that he is being illegally held by the Alabama 

authorities beyond the term of imprisonment to which he was sentenced by the Circuit 

Court of Dallas County because the Alabama Department of Corrections (“ADOC”) has 

failed to account for his jail credit and “good time” credit, which should have reduced 

his time of imprisonment from 28 years total to 24 years and 10 months.2 (See Doc. 1 at 

12).

Powell claims that he “was arrested in Dallas County, Alabama, on October 8, 

1987[,]” and was held “without making Bail” prior to being sentenced. (Id.). At the 

time his habeas petition was filed, he claimed to have served “a total prison sentence of 

26 yrs and 4 month” and that he was due “Jail Credit of (1 yr./3 month/25 Days) and 

 1 A pro se prisoner’s federal habeas petition is deemed filed on the date it was delivered to 

prison authorities for mailing. See, e.g. Mattern v. Sec'y for Dep't of Corr., 494 F.3d 1282, 

1284 n.2 (11th Cir. 2007) (per curiam); Rule 3(d) of the Rules Governing Section 2254 Cases 

in the United States District Courts.

2 ADOC’s online prisoner locator (http://www.doc.state.al.us/InmateSearch.aspx (last visited 

April 10, 2015)) indicates that Powell’s current release date is June 3, 2015.

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D.O.C. Good Time Credit of (21 month) on The May 1, 1989[] Five (5) yr. sentence.” 

(Id.). He claims his release date should have been “January 2012” and, therefore, he 

had “been held illegally (2 yrs/6 months over [his] actual release date” at the time of the 

petition’s filing. (Id.). Powell claims he did not discover this “error” “until May 30, 

2013[,]” and that he has contacted the warden of the Mobile County Metro Jail, the 

Alabama Prison Commissioner, the Alabama Governor’s office, and ADOC’s central 

record office about this matter, all to no avail. (Id.). He asserts that he is being “held 

in involuntary servitude” and that his due process is being denied. (Id.).3

II. Analysis

A. Failure to Exhaust

“[A] habeas petition filed by a state prisoner in custody pursuant to the judgment 

of a state court is subject both to [28 U.S.C ]§ 2241 and to [28 U.S.C ]§ 2254, with its 

attendant restrictions.” Thomas v. Crosby, 371 F.3d 782, 785 (11th Cir. 2004) (citing 

Medberry v. Crosby, 351 F.3d 1049 (11th Cir. 2003)). One such restriction is found at 

28 U.S.C. § 2254(b)(1)(A), which provides: “An application for a writ of habeas corpus 

on behalf of a person in custody pursuant to the judgment of a State court shall not be 

granted unless it appears that the applicant has exhausted the remedies available in 

the courts of the State.” Accord Jimenez v. Fla. Dep't of Corr., 481 F.3d 1337, 1342 

(11th Cir. 2007) (per curiam) (“The habeas statute requires applicants to exhaust all 

available state law remedies. 28 U.S.C. § 2254(b)(1)(A).”). “An applicant shall not be 

deemed to have exhausted the remedies available in the courts of the State, within the 

 3 The undersigned abides by the directive that “courts should construe a habeas petition 

filed pro se more liberally than one drawn up by an attorney.” E.g., Gunn v. Newsome, 881 

F.2d 949, 961 (11th Cir. 1989).

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meaning of this section, if he has the right under the law of the State to raise, by any 

available procedure, the question presented.” 28 U.S.C. § 2254(c). The Respondent, 

invoking this requirement, has moved to dismiss Powell’s habeas petition for failure to 

exhaust his state court remedies. (See Doc. 14). Specifically, the Respondent has 

reported that, on April 11, 2014 (after his present petition was filed), Powell filed a 

petition for post-conviction relief under Alabama Rule of Criminal Procedure 32 with 

the Dallas County Circuit Court. (Doc. 14-1). Rule 32 permits an Alabama prisoner to 

petition for relief, among other things, on the ground that “[t]he petitioner is being held 

in custody after the petitioner's sentence has expired.” Ala. R. Crim. P. 32.1(d).

The Respondent’s Answer was filed on June 9, 2014. A review of the docket of 

Powell’s Dallas County criminal actions conducted on April 15, 2015, through 

AlaCourt.com indicates that the circuit court denied Powell’s Rule 32 petition by order 

dated August 20, 2014 (attached hereto as “Exhibit A”), and that the Alabama Court of 

Criminal Appeals affirmed on January 30, 2015, issuing a Certificate of Judgment on 

February 18, 2015 (attached hereto as “Exhibit B”). (See Doc. 20). A copy of the Court 

of Criminal Appeals’s opinion affirming the circuit court, however, could not be located 

on the docket. Thus, the undersigned is unaware of the basis or bases on which the 

Court of Criminal Appeals affirmed. Moreover, it is unclear from the record whether 

Powell has sought, or will seek, further review with the Alabama Supreme Court.

Nevertheless, the undersigned concludes that Powell has failed to exhaust his 

claims because he has not pursued all available procedures under Alabama law –

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specifically, he has not sought habeas corpus relief in state court. See Ala. Code § 15-

21-1, et seq.4 

Alabama courts have long held:

A petition for a writ of habeas corpus is the proper method by which to 

test whether the State has correctly calculated the time an inmate must 

serve in prison. Swicegood v. State, 646 So. 2d 158 (Ala. Cr. App. 1993). 

Section 15-18-5, Ala. Code 1975, requires that a convicted person be 

“credited with all of his actual time spent incarcerated pending trial for 

such offense. The actual time spent incarcerated pending trial shall be 

certified by the circuit clerk or district clerk on forms to be prescribed by 

the Board of Corrections.” 

Graves v. State, 710 So. 2d 535, 536 (Ala. Crim. App. 1997). Accord, e.g., Wilson v. 

State, 981 So. 2d 441, 442-43 (Ala. Crim. App. 2007); Sundberg v. Thomas, 13 So. 3d 43, 

44 (Ala. Crim. App. 2009); Hillard v. Ala. Dep't of Corr., 93 So. 3d 983, 984 (Ala. Crim. 

App. 2011) (“A petition for a writ of habeas corpus is the proper method by which to test 

whether DOC has correctly calculated the time an inmate must serve in prison. See 

Breach v. State, 687 So.2d 1257 (Ala. Crim. App. 1996); Swicegood v. State, 646 So. 2d 

158 (Ala. Crim. App. 1993).”); Carroll v. Ala. Dep't of Corr., No. CR-12-1640, 2014 WL 

4957723, at *2 (Ala. Crim. App. Oct. 3, 2014) (same as Hillard). See also Ex parte 

Collier, 64 So. 3d 1045, 1046-49 (Ala. 2010) (holding that the Court of Criminal Appeals 

properly treated a prisoner’s motion as a petition for a writ of habeas corpus to 

challenge pretrial-incarceration credit); Hall v. Wheeler-White, Civil Action No. 09-

 4 “Any person who is imprisoned or restrained of his liberty in the State of Alabama on any 

criminal charge or accusation or under any other pretense whatever, except persons 

committed or detained by virtue of process issued by a court of the United States or by a 

judge thereof in cases of which such courts have exclusive jurisdiction under the laws of the 

United States or have acquired exclusive jurisdiction by the commencement of actions in 

such courts, may prosecute a writ of habeas corpus according to the provisions of this 

chapter to inquire into the cause of such imprisonment or restraint.” Ala. Code § 15-21-1.

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0491-CG-C, 2009 WL 3062008 (S.D. Ala. Sept. 18, 2009) (dismissing Alabama prisoner’s 

federal habeas claim that she had been unlawfully denied jail credit to allow her the 

opportunity to exhaust her state remedies though a petition for a writ of habeas 

corpus).5

A state petition for a writ of habeas corpus is appropriate to address to claimed 

deprivations of both jail credit, see, e.g., Wilson, 981 So. 2d at 442-44; Smith v. State, 

504 So. 2d 1224, 1225 (Ala. Crim. App. 1987), and “good time” credit. See McConico v. 

Ala. Dep't of Corr., 893 So. 2d 577, 579 (Ala. Crim. App. 2004) (“In 1980,...the Alabama 

Supreme Court held that a petition for writ of habeas corpus was the proper method by 

which an inmate could challenge a disciplinary hearing depriving him or her of good 

time credit even if the inmate would not be entitled to immediate release upon 

restoration of the good time. Williams v. Davis, 386 So.2d 415 (Ala. 1980). Following 

the Alabama Supreme Court's decision in Williams v. Davis, this Court gradually 

recognized the use of a petition for a writ of habeas corpus by an inmate to challenge 

DOC decisions involving not only the loss of good-time credit, but as a method by which 

the inmate could determine whether DOC had correctly calculated the amount of time 

he was required to serve, see, e.g., Swicegood v. State, 646 So. 2d 158 (Ala. Crim. App. 

1993)...”), overruled on other grounds, Collins v. Ala. Dep't of Corr., 982 So. 2d 1078 

(Ala. 2007).6

 5 The Dallas County circuit court’s August 20, 2014 order denying Powell’s Rule 32 petition 

was based, inter alia, on the finding that Rule 32 was the inappropriate vehicle for the 

relief sought, noting that “the proper vehicle for the Petitioner’s complaint is a habeas 

petition filed in the county where he is being held.”

6 To the extent Powell claims that he has been unlawfully deprived of the right to earn 

“good time” credit, Alabama provides that such decisions may be challenged through a 

(Continued)

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While Powell emphatically represents that he has petitioned all manner of 

Alabama officials with regard to the amount of credit he is due, he does not claim that 

he has petitioned for habeas corpus review in state court. “Although the exhaustion 

requirement is not jurisdictional, there is a ‘strong presumption in favor of requiring 

the prisoner to pursue his available state remedies.’ ” Mauk v. Lanier, 484 F.3d 1352, 

1357 (11th Cir. 2007) (quoting Castille v. Peoples, 489 U.S. 346, 349 (1989) (quotation 

marks and citation omitted)). Because Powell has not exhausted the claims presented 

in this action,7 the undersigned RECOMMENDS that his habeas petition (Doc. 1) be 

DISMISSED without prejudice. See Jimenez, 481 F.3d at 1343-44 (explaining that 

 

different mechanism, a petition the circuit court for a writ of certiorari. See McConico, 893 

So. 2d at 579-80 (“[I]n Ex parte Boykins, 862 So. 2d 587 (Ala. 2002), the Alabama Supreme 

Court...h[eld] that an inmate’s challenge to an administrative rule addressing his right to 

earn incentive good time was not cognizable by petition for a writ of habeas corpus. That 

court held that because Boykins had no due-process liberty interest in DOC's ruling on his 

request to qualify for incentive good time, the circuit court and this Court had incorrectly 

treated Boykins's petition as one for a writ of habeas corpus. The Supreme Court noted that 

because Boykins was appealing the decision of an administrative agency, i.e., DOC, made 

pursuant to that agency's rules and regulations, he was required to petition the circuit 

court for a writ of certiorari because the Alabama Administrative Procedure Act did not 

provide for any other appeal mechanism for inmates. 862 So. 2d at 593. Accordingly, the 

Supreme Court reversed this Court's judgment and remanded Boykins's case to this Court 

with directions that this Court ‘reverse the judgment of the trial court and remand the 

cause for the trial court to review Boykins's petition for a writ of certiorari reviewing the 

DOC's denial of his request to be allowed to earn IGT [incentive good time].’ 862 So. 2d at 

594.” (footnote omitted)).

7 The exhaustion requirement may be excused where “(i) there is an absence of available 

State corrective process; or (ii) circumstances exist that render such process ineffective to 

protect the rights of the applicant.” 28 U.S.C. § 2254(b)(1)(B). As has been explained, 

Powell still has available state court corrective processes, and the undersigned finds no 

reason to believe this process is ineffective to protect Powell’s rights. Indeed, at this point, 

resort to the Alabama state courts would be more effective on this issue, given that Powell 

is due to be released soon, see n.2, supra, and given that Alabama “courts are certainly 

more well-versed than is this Court in determining, under Alabama law, the amount of jail 

credit a petitioner is entitled to receive...” Hall, 2009 WL 3062008, at *3.

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the district court should dismiss the § 2254 petition without prejudice to allow the 

petitioner to return to state court and exhaust his claims); Mauk v. Lanier, 484 F.3d at 

1358 (same).

B. Certificate of Appealability

In actions such as this one, brought under § 2254, a “district court must issue or 

deny a certificate of appealability when it enters a final order adverse to the applicant.” 

Rule 11(a) of the Rules Governing § 2254 Cases in the United States District Courts. 

“A certificate of appealability may issue ‘only if the applicant has made a substantial 

showing of the denial of a constitutional right.’ ” Spencer v. United States, 773 F.3d 

1132, 1137 (11th Cir. 2014) (en banc) (quoting 28 U.S.C. § 2253(c)(2)). However, “a

COA does not require a showing that the appeal will succeed.” Miller-El v. Cockrell, 

537 U.S. 322, 337 (2003). 

Where, as here, “the district court denies a habeas petition on procedural 

grounds without reaching the prisoner's underlying constitutional claim, a COA should 

issue [only] when the prisoner shows, at least, that jurists of reason would find it 

debatable whether the petition states a valid claim of the denial of a constitutional 

right and that jurists of reason would find it debatable whether the district court was 

correct in its procedural ruling...Where a plain procedural bar is present and the 

district court is correct to invoke it to dispose of the case, a reasonable jurist could not 

conclude either that the district court erred in dismissing the petition or that the 

petitioner should be allowed to proceed further. In such a circumstance, no appeal 

would be warranted.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). See also Miller-El, 

537 U.S. at 336 (“Under the controlling standard, a petitioner must show that 

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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.” (citations omitted and 

punctuation modified)).). “A prisoner seeking a COA must prove something more than 

the absence of frivolity or the existence of mere good faith on his or her part.” Miller-El, 

537 U.S. at 338 (quotations omitted).

Upon consideration, and assuming that the Court adopts the recommendation 

that Powell’s petition be dismissed without prejudice, the undersigned

RECOMMENDS that a certificate of appealability in this action be DENIED, as the 

undersigned finds, at minimum, “that jurists of reason would [not ]find it debatable 

whether [this Court] was correct in its procedural ruling.” Slack, 529 U.S. at 484.

Rule 11(a) further provides: “Before entering the final order, the court may direct 

the parties to submit arguments on whether a certificate should issue.” If there is an 

objection to this recommendation by petitioner, he may bring this argument to the 

attention of the district judge in the objections permitted to this report and 

recommendation. See, e.g., Brightwell v. Patterson, No. CA 11-0165-WS-C, 2011 WL 

1930676, at *6 (S.D. Ala. Apr. 11, 2011), report & recommendation adopted, 2011 WL 

1930662 (S.D. Ala. May 19, 2011)8; Griffin v. DeRosa, No. 3:10cv342/RV/MD, 2010 WL 

3943702, at *4 (N.D. Fla. Sep. 20, 2010) (providing for same procedure), report & 

recommendation adopted sub nom. Griffin v. Butterworth, 2010 W: 3943699 (N.D. Oct. 

5, 2010).

 8 It should be noted that in that proceeding, the Eleventh Circuit (Judge Hull) also denied 

the petitioner’s motion for certificate of appealability on October 11, 2011. (See Doc. 14 in 

CA-11-0165-WS-C.)

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C. Appeal In Forma Pauperis

“An appeal may not be taken in forma pauperis if the trial court certifies in 

writing that it is not taken in good faith.” 28 U.S.C. § 1915(a)(3). A district court’s 

finding “that an appeal would not be in good faith because no certificate of appealability 

had been issued . . . is not enough to explain why the appeal on the merits would not be 

in good faith, because the standard governing the issuance of a certificate of 

appealability is not the same as the standard for determining whether an appeal is in 

good faith. It is more demanding . . . [T]o determine that an appeal is in good faith, a 

court need only find that a reasonable person could suppose that the appeal has some 

merit.” Walker v. O'Brien, 216 F.3d 626, 631-32 (7th Cir. 2000). See also Weaver v. 

Patterson, Civ. A. No. 11-00152-WS-N, 2012 WL 2568218, at *7 (S.D. Ala. June 19, 

2012) (Nelson, M.J.), report and recommendation adopted, Civ. A. No. 11-00152-WS-N, 

2012 WL 2568093 (S.D. Ala. July 3, 2012) (Steele, C.J.) (“An appeal may not be taken in 

forma pauperis if the trial court certifies in writing that the appeal is not taken in good 

faith. 28 U.S.C. § 1915(a)(3); see Fed. R. App. P. 24(a)(3)(A); Lee v. Clinton, 209 F.3d 

1025, 1026 (7th Cir. 2000) (concluding that ‘good faith’ is ‘an objective concept’ and that 

‘not taken in good faith’ is ‘a synonym for frivolous’); DeSantis v. United Techs, Corp.,

15 F. Supp. 2d 1285, 1288–89 (M.D. Fla. 1998) (stating that good faith ‘must be judged 

by an objective, not a subjective, standard’ and that an appellant ‘demonstrates good 

faith when he seeks appellate review of any issue that is not frivolous’). An appeal filed 

in forma pauperis is frivolous if ‘it appears that the Plaintiff has little to no chance of 

success,’ meaning that the ‘factual allegations are clearly baseless or that the legal 

theories are indisputably meritless.’ Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 

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1993).”). But see, e.g., United States v. McCray, No. 4:07CR20-RH, 2012 WL 1155471, 

at *2 (N.D. Fla. Apr. 5, 2012) (“Because the defendant has not obtained—and is not 

entitled to—a certificate of appealability, any appeal by the defendant will not be taken 

in good faith. I certify under Federal Rule of Appellate Procedure 24(a) that any appeal 

will not be taken in good faith and that the defendant is not otherwise entitled to 

proceed in forma pauperis on appeal.”).

In light of the above-stated reasoning, and assuming that the Court adopts the 

recommendation that Powell’s petition be dismissed without prejudice, the undersigned 

RECOMMENDS the Court certify that any appeal by Powell in this action would be 

without merit and therefore not taken in good faith and, accordingly, find that Powell is 

not entitled to appeal in forma pauperis.

III. Conclusion

In accordance with the foregoing analysis, the undersigned RECOMMENDS

that Powell’s habeas petition (Doc. 1) be DISMISSED without prejudice for failure 

to exhaust his state court remedies. Should this recommendation be adopted, the 

undersigned further RECOMMENDS that Powell be found not entitled either to a 

Certificate of Appealability or to proceed in forma pauperis on appeal.

IV. Notice of Right to File Objections

A copy of this report and recommendation shall be served on all parties in the 

manner provided by law. Any party who objects to this recommendation or anything 

in it must, within fourteen (14) days of the date of service of this document, file specific 

written objections with the Clerk of this Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. 

P. 72(b); S.D. Ala. L.R. 72.4. In order to be specific, an objection must identify the 

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specific finding or recommendation to which objection is made, state the basis for the 

objection, and specify the place in the Magistrate Judge’s report and recommendation 

where the disputed determination is found. An objection that merely incorporates by 

reference or refers to the briefing before the Magistrate Judge is not specific.

DONE this the 20th day of April 2015.

/s/ Katherine P. Nelson

KATHERINE P. NELSON 

UNITED STATES MAGISTRATE JUDGE

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