Arthur Jackson, Jr. v. State of Alabama, Jasper Lee Cooks v. Circuit Court of Mobile County

GODBOLD, imprisonment Before SIMPSON and ed that term of shall CLARK, Judges. years Circuit less not be for than in the state accompanying

1. See note 12 infra and text. statutory minimum sentence for first de- di did Jackson penitentiary. ten conviction, gree burglary years the state and did not rectly from Title penitentiary,3 Code relief habe post-conviction seek entry judg- After of Alabama. coram nobis or other error corpus, sentence, ment and Cooks a notice filed September 11, Instead on wise. under of which Alabama law au- the court below for habeas petitioned tomatically of suspends execution the petition His asserted that corpus relief.2 pending appeal sentence. Bail was set to credit toward was entitled Jackson $10,000, alleges at which Cooks he was 18 year of his sentence for service the to indigency. unable meet due to On pre-trial held in months he was the 23 26, 1972, April he was transferred from averring that the denial of such custody, County the Jail pursuant Mobile to court (i) by the contravened: the credit State the Diag- order to Medical and State’s jeopardy clause of the Fifth double Meigs, at Mt. nostic Center Alabama. Amendment, un applicable states 28, Mt. June Meigs He remained at until Amendment; (ii) the the Fourteenth der 1973, when he was transferred to the Amendment, cruel and unusual Eighth Penitentiary Holman, Alabama State to the states-un applicable punishment, Alabama. Amendment; (iii) the the Fourteenth der by conviction Cooks’ was affirmed the equal clauses process protection and due Appeals Alabama Court of Criminal on Amendment. The dis of the Fourteenth 13, 1973, February and review certiorari petition holding the denied judge trict by Supreme was the Alabama denied of court in the decisions that under 19, April State, Court on 1973. Cooks v. 1972, 469 Bailey, Cobb 49, 1973, 634, Ala.App. 50 276 So.2d cert. Henderson, 1068, 5 Gremillion Cir. and 1973, 363, 290 Ala. denied 276 So.2d 1293, 1970, Jackson was not en 425 did not elect take Cooks Since pre-sentence jail time. to credit for titled “working” appeal under Alabama law was arrested on June Cooks Appellant year begin his ten sentence did not degree, 28, 1971, burglary in the first for 19, 1973, April run the date on until 85, 14, of Code Alabama. Title Section Supreme which the Alabama de Court $15,000 14, February set at Bail was review nied certiorari of his conviction. alleges he unable to Cooks Therefore, Cooks received no credit for indigency. He was due to his' post bail days he spent post-trial the 387 which in days detention for 283 pre-trial in pending appeal. held' custody His City County Jails. Mobile ten against year the credit his sentence for jury trial on days was convicted at is the second Cooks these 387 issue raised 6, by appeal. the April 1972 and sentenced serve Cooks’ present Although penalty degree did his claim 3. The Jackson maximum for first bur Alabama, pre-trial death, 14, 85, glary to the courts of for is Title appellate courts that state holding we the of note Code of Alabama. of Furman v. consistently pre-trial 238, detention 1972, 2726, denied Georgia, have U.S. 408 92 S.Ct. 33 State, 1894, Ryan Ala. 100 346, Ala. credit. See apparently limits the maximum L.Ed.2d State, 105, 766; Bailey Ala.App.1975, 14 So. imprisonment. But life see Fowler v. North State, 1971, 136, Robinson N.C.1974, 90, 315 So.2d Carolina, 285 203 N.C. S.E.2d Further, 51, Ala.App. So.2d 872. 47 249 1974, 963, 803, granted U.S. cert. S.Ct. Appeals has held of Criminal Alabama Court 177, 223, L.Ed.2d restored the calendar corpus is in Alabama available habeas 1975, 1039, reargument for S.Ct. petitioner entitled to immedi is when 691, setting order case 45 L.Ed.2d for release, request pre-sen ate and also for revoked, 1976, reargument Fowler North proper subject collater is not a tence credit - Carolina, -, U.S. by a nobis. Ex al writ of error coram attack 3470. The latter ac U.S.L.W. Miller, 1972, Ala.App. 310 So.2d Parte certiorari, grant tion was occasioned State, 890; Bailey supra. these cir Under requirements of exhaustion Ti cumstances 93, 94, six death U.S.L.W. 2254(b) need not be fur tle U.S.C. Section Supreme penalty argued Court cases before existing pursued, “an ther there absence week March process.” Ibid. State corrective available fendant pro custody two se held in Cooks filed a local

In June prior writ of error coram no- to trial and sentencing due to petitions County inability post Circuit Court bail is entitled to in the Mobile bis attacking his conviction and detention collaterally upon ultimately sen- imposed the service of his seeking credit on after con post appellants’ position the time viction. The tence petitions These clause equal protection and the confinement. due pre-trial judge.4 clause of the process the trial Fourteenth Amend were denied require grant that the State ment such filed his habe Cooks April On credit, that denial thereof constitutes an urging the court below petition in restriction upon unconstitutional a crimi for relief. One separate grounds four nal defendant’s exercise of the right ato support urged Cooks grounds5 trial under the jury Sixth and Four that he petition was of his habeas Amendments, teenth and further consti toward unlawfully denied been punishment cruel and unusual tutes pro sentence for the year his ten service of by Eighth hibited Amendment. City held in Mobile and he was periods of these support contentions appel trial and at County prior Jails rely on decisions of lants other circuits facility Meigs at Mt. jail and the county hold that a grant which State must cred appeal. his during pendency of indigent criminal it to an defendant for holding (1) relief court denied district pre-sentence custody time all even when had received a mini Cooks that since period the combined (ac confinement years ten under the sentence of mum plus spent pre-sen tual sentence time detention was pre-trial for statute credit custody) does not tence exceed the statu citing Bailey, Cobb v. su required, tory proscribed maximum sentence for 1972, Wainwright, v. 5 Cir. 465 pra; Hill King v. Wyrick, an offense. See 8 Cir. 414; Henderson, v. 5 Cir. F.2d 321; 1975, 516 F.2d Ham v. North Caro 183; (a) he 1971, F.2d and that since 449 1971, 406; lina, 4 Cir. 471 F.2d Monsour “working” appeal a opted for had not E.D.Wis.1973, 786; Gray, F.Supp. v. 375 post-trial to credit for not entitled was Gilligan, 1972, v. White S.D.Ohio 351 Blackwell, incarceration, citing Duke v. 5 F.Supp. by 1012. We are bound prior 531; 1970, Tandler v. 429 Cir. Blackwell, in this circuit decisions on this issue and 1969, 412 F.2d 780. Cir. hence decline to follow the rationale of JAIL TIME PRE-SENTENCE the cited cases. appeals Henderson, The issue common both Gremillion v. supra, was indigent then is whether an criminal de- in which the first case we considered illegal court found that an 4. The district Cooks had met warrantless search and seizure. The 28, obligation his of exhaustion under Title respect district court concluded with to these U.S.C., 2254, although (i) since he did not grounds: that no three statements made the decisions in either of the coram anytime Cooks at were introduced in evidence right petitions appeal expired trial, nobis six inappli at his and therefore Miranda was entry judgment. cable; after the See Har (ii) months the warrantless arrest was not 1970, Alabama, 5 Cir. 429 F.2d 1236. No corpus relief, ris v. grounds habeas for federal un given apparently deprived consideration was Cooks less the arrest of a fair trial 2, supra, meeting alleged any prejudice cite in Note as cases we flowing and he had not U.S.C., 2254(b). requirements warrant, of Title 28 § citing Perry without from the arrest perhaps approach, Texas, 879, and under that Under this v. 456 F.2d and Brooks well, Smith, no taken the district court available (iii) 429 F.2d Cir. be process evidentiary existed when Cook physical state corrective cause no exhibits of a na petition. habeas trial, filed his federal ture were offered the State at Cooks’ record did and because the not show whether assigned by grounds relief 5. The other actually place, a search had taken the chal (i) in the district court were: that he Cooks illegal lenge search and seizure need not was not advised at the time of his arrest of his be considered. rights under the decision Miranda v. Arizo na, 1966, disposition The district court’s S.Ct. of these is- 694; (ii) challenged by ap- that he was arrested without is not Cooks on sues warrant; (iii) subjected peal. and that he was This court Henderson, in Hart v. granted prisoner su a state whether allowing after the corpus pra, relief decisions Williams v. habeas federal Tate down, Illinois and his sentence Short came sentencing. We held confronted with the prior factual situa custody claim was not prisoner’s tion where been sen State corpus habeas under federal tenced to the maximum term cognizable federal constitution for an offense provided given “there is no and no because prior for time served credit on the service of that to credit al sentence”, in the absence of a state the time he was held in of such credit is trial. We held in Hart v. granting Henderson statute inability “that the of an indigent the discretion within crimi Gremillion, at 1294. supra, See nal defendant make bond judge. should not Pickett, extending Cir. Culotta result duration also of his beyond imprisonment cert. denied the statutory max Henderson, 44 L.Ed.2d 458. ”. Hart v. imum supra (emphasis added). while decisions of this court Under Subsequent the teach ings basic rule of of Williams adhering to the Gremillion supra, and Short, Henderson, supra, have we narrowed Tate vacated the a result of of the district judgment rule as Williams court of that scope denying relief, Illinois, 1970, corpus S.Ct. Hart habeas remanded Short, and Tate v. for a determination of whether ap 28 pellant post 91 S.Ct. had been unable to 1971, 401 U.S. bail due indigency. Again, in Hill v. Wain 1972,465 wright, 5 Cir. a case held in Williams v. Supreme Court factually on all fours with Hart v. Hed indigent criminal defend that an Illinois erson, supra, we followed the Hart ex beyond the not be confined may ant rule ception to the basic of Gremillion, imprison maximum term of statutory supra, and held that “a state given for a offense be provided ment received the who has imposa maximum inability pay his a fine and cause of sentence for an prison ble offense must Noting although that court costs. for all given presentence jail be fixing latitude in the pun has wide state unable to time if he was make bail due crimes, state the Court stat ishment Id. at indigence”. 415 (emphasis to his has defined the out “once the State ed: added). Wainwright, Hill v. supra, dis necessary to of incarceration er limits v. Gremillion tinguished Henderson on poli interests and satisfy penological its that the ground appellant the in that cies, subject not then it a certain received the maximum im case posable period defendants to a of convicted class Ibid, prison sentence. at n. beyond statutory the imprisonment Hence, although the decisions in Hart solely by reason of their indi maximum Henderson, supra, and Hill v. v. Wain 241-42, at Ibid at S.Ct. gency”. applicable narrowed the wright, (emphasis supplied). at 593 26 L.Ed.2d the rule enunciated in scope of Gremil Following Williams Court Henderson, supra, in lion v. neither case Short, supra, held that since in Tate v. contrary we hold did Gremillion that “legislated of Texas had the State prisoners indigent all state have an abso offenses, only’ policy for traffic ‘fines right lute constitutional to credit for cannot, statutory ceiling consistent that spent pre-sentence time custody. Clause, lim Equal Protection ly with Bailey, 469 F.2d at Cobb Parker payment of the fine punishment it Estelle, 625, 627, 498 it, yet pay able to convert if one is cert. denied indigent term for an prison fine into a pay without means to defendant Short, supra of this circuit Tate adherence to the fine.” (em qualified rule as by L.Ed.2d at 133-34 Gremillion deci- and Hill is added). sions in Hart illustrated phasis Hill, wherein an Hart Bailey, Cobb that was entitled to prisoner contended because state pre-conviction credit because he was un- the maximum imposa- she had received able make bond due to indigency. crime for ble sentence for the which she Rather, presented the issues in Parker was convicted she entitled under (i) were whether Texas Henderson, supra, to credit required scheme which post- credit for pre-conviction her sentence for time. in a conviction tion,6 mental institu- rejected We the contention that the deci- provided but the granting of was eroded sion in Gremillion de- our pre-conviction time spent credit for ain Henderson, noting in Hart v. cision was within mental institution the discre- there is it was evident that no constitu- invidiously tion of the court7 discrimi- for time pri- tional to credit served nated between similar classes in contra- it or to was necessary since protection equal vention clause of Congress pass legislation, Amendment, the Fourteenth (ii) 18, U.S.C., requiring Title whether disallowance of such credit prisoners federal in the future process violated the due clause of the Following given such credit. the deci- Fourteenth Amendment and the double court sion in Gremillion this denied relief jeopardy clause Fifth Amend- appellant in Cobb since she had ment, applicable made to the states for a originally been held nonbailable of- the Fourteenth Amendment. Parker alleged fense and had not after bail Estelle, 3, However, supra at nn. was allowed she was discriminatorily de- the court in Parker found it unnecessary to make opportunity nied the it. appellant’s to address the challenge to Estelle, Parker v. recently, Most su- constitutionality of the Texas statu- court, pra, Judge speaking for this Clark process due tory scheme or his and dou- clarified the rule in this circuit for cred- jeopardy arguments ble since it rejected iting the sentences credit was denied, the assertion that be- pre-sentence jail with time. urged had been jury cause the to con- period sider scope of confine- plenary Gremillion has “[T]he determining punishment ment in qualified Hart and Henderson, been v. a sentence of only had returned ten Wainwright and Hill v. [supra], that, years for an offense which although which hold carried there is no Thus, of life. right pre-sentence penalty absolute to maximum Parker deten- credit, tion a denial of such holds that since sentence imposed credit due poverty (e. plus pre-sentence to a defendant’s in g., spent the time the fi- cus- to inability bail) nancial make tody or to totaled less than maximum im- constitutionally some other impermissi- posable offense, then, sentence for as ble basis will be cases, not allowed to extend in federal there was a presumption prisoner’s a state beyond sentence jury imposing that the in sentence had prescribed maximum for the given period crime.” pre-sen- credit for the tence custody. at Ibid Parker, appellant The in The rule in did this circuit distilled contend, petitioners decisions, as had in as prior from to whether a Crim.P., 46.01(8) 6. Vernon’s Ann.Tex.Code art. the discretion of the be credited to the court provides part: pertinent upon subsequent sentence sen- term of his re-sentencing.” tencing prisoner is or “The time a confined in a men- hospital Leg. tal for treatment shall be considered Texas 59th Acts of the State of Vol. be time served and shall credited to ” (cid:127) the term p. ch. 722. . . of his sentence . Crim.P., 46.02(7) Vernon’s Ann.Tex.Code art. provides: now at the statute in effect time of Parker’s person charged “The time a with a crimi- provided: trial in a mental nal offense is confined health or charged person “The time with or con- facility pending mental retardation trial shall victed of a offense is criminal confined in a be the term of his credited to sentence on hospital Chapter under this State mental sentencing subsequent resentencing.” or trial, sentencing pending or policies. Williams v. and su- federal habe entitled to state pra, service credit on the for corpus relief as custody Applying above test we hold spent time at 593. for his sentence neither Jackson or Cooks has trial or stated to prior or detention on cognizable a federal writ of no absolute constitu a claim there is is: While because, corpus assuming that detention habeas pre-sentence tional make bail because of indi- is held failed such, person where a as credit time, applicable appel- both gency to make at the and is unable offense a bailable upon he is conviction were sentenced to upon then if lants indigency due bail statutory imprisonment considerably less terms of sentenced conviction for the of maximum prescribed sentence imposable than the maximum for the time of Alabama to credit their is entitled the State fense sentencing. See jail prior crimes. spent Bailey, Estelle, supra; Cobb v.

Parker Wainwright, supra; Hill supra; ACT NO. 58 v. Hen Henderson, supra; Gremillion Beto, appellants’ second derson, Brown v. S.D.Tex. contention with supra; respect 121. Accord Hook credit is that Act F.Supp. by the passed Legisla Arizona, 496 F.2d No. 58 signed into law State, Fla.App.1973, ture March also Gelis See Williams, 1972, 1975,9 requiring that in the 368; future the State So.2d 638; State, any persons Meeks v. convicted of sentence 264 So.2d La. 215; misdemeanor be felony credited with State 512 S.W.2d Mo.App.1974, 507; trial, Mo.1971, spent incarcerated Cur Crockrell, S.W.2d applied retrospectively since State, Tex.Cr.App.1974, 505 S.W.2d must lin v. Freeman, the Act establishes an Tex.Cr.App. irration otherwise Parte Ex persons The rationale of al classification sentenced be 1972, 486 S.W.2d date, its effective deny to indi fore and after is that rule thus, invidiously against circumstances discriminates in these gent defendants persons in the former class in extending their sentences those con would result the Fourteenth prescribed for Amend travention the maximum beyond grounded claim is offense, imposition of a This on cases and in the ment. their Circuit which that determined from the Fourth hold that than sentence greater necessary granting statute legislature pre a similar by the equal pro- interests confinement denied “penological satisfy the states be credited with all of his actual expressing the success no view as to 8. While efforts, see of Alabama’s of the State or merits trial for such offense. incarcerated M.D.Ala.1972, Alabama, 349 v. Newman 1320, 1974, 278, F.Supp. 503.F.2d aff’d 5 Cir. “This act shall become effective immedi- 948, 1680, 1975, 95 S.Ct. cert. denied passage approval by ately upon its and city 102, and note that since we 44 L.Ed.2d Governor, upon becoming its otherwise or a appellants jails held county were in which the law.” sentencing significant rehabil prior have no prison program to the state in contrast itation 10. Prior to the enactment of Act No. 58 Ala- that system, to conclude is not unreasonable it only in this circuit which bama was rehabilitating prison its state’s interest authorizing pre-sen- credit for had no statute requir might this court’s be frustrated ers Louisiana, Georgia, tence confinement. person given a ing for the time credit be require Mississippi, Texas statutes and prior to trial and sentenc a local is held in given for time credit be 1973, Royster, U.S. ing. v. 410 Cf. McGinnis detention, sentencing in Florida the court and 282, 1055, 1060, 264, 271, 93 S.Ct. grant such credit. See has discretion Ga. 27-2530; La.Stat.Ann.Code § Code Ann. Legislature pro of the Alabama 9. Act No. 58 880; Crim.P., Miss.Code of 1972 Ann. art. part: pertinent vides in Crim.P., 99-19-23; Vernon’s Ann.Tex.Code § imprisonment “Upon and conviction 42.03(2); § Fla.Stat.Ann. 921.161. art. misdemeanor, felony or person order that the convicted court shall 1238 “arrest or interfere” prior to the with persons sentenced the execution

tection act, and, therefore, of a finalized date of the sentence. effective See Colvin v. Cir.1975, 747; Estelle, rights 5 506 prisoners equal all have F.2d Welch 1942, 10 Hudspeth, 434; Cir. irrespective 132 F.2d time served States ex United rel. Cheramie v. they were before or sentenced whether 1935, Dutton, 5 Cir. 740, 74 F.2d cert. the enactment of the statute. See after 733, denied 295 U.S. 644, 55 79 Carolina, 1973, S.Ct. 4 471 v. North Cir. Ham 1681; L.Ed. Mirenda v. Ulibarri, C.D.Cal. 406; E.D.N.C.1972, Dail, Mott F.2d 1972, F.Supp. 676; 351 Goslin, Cherry v. dismissed, 731, F.Supp. appeal 4 Cir. 337 W.D.La.1972, 1162; 350 F.Supp. Com 1973, 473 F.2d 908. See also Cole ment, Today’s Law Yesterday’s 127; Carolina, 1969, 4 Cir. 419 F.2d North Crime: Retroactive Application of Amel 1966, 604, Frye, 35 Ill.2d 221 People Criminal Legislation, iorative 121 U.Pa. N.E.2d Because Act No. 58 was (1972). L.Rev. 120 We find in the cir subsequent filing to the of these passed present here cumstances the “fac appellants urge did not appeals tors of reliance and burden on ad petitions in their filed in the contention justice”, ministration Stovall below, courts nor did district 1967, Denno, 293, 300, it to the courts of Alabama. present 1972, 1967, 1199, 1205, L.Ed.2d out Appeals, Court of The Alabama Criminal apparent weigh inequity in determin however, considered this in Ex issue date, ing cutoff a fixed and we hold also Miller, 1975, 590, Ala.App. Parte legislature’s Alabama confer 890, and held that Act No. 58 was So.2d ring prospectively the benefits of Also, in Bryant not retroactive. Skin Act No. violated no constitutional M.D.Ala.1975, ner, 75-301-N, Civil No. guarantee. See Cupp, Jones v. 9 Cir. Judge Varner has held that Act District 1091; 1971, F.2d Williams v. United apply was not No. 58 intended to retro States, 118 U.S.App.D.C. 255, 335 actively, deny equal protec and does not 290; Graham v. Thompson, 10 Cir. prisoners sentenced prior tion Comerford Com agree. date of the Act. We effective monwealth, 233 F.2d above, As pre-sen discussed cert. denied S.Ct. credit is not an tence absolute constitu L.Ed.2d right. It Act follows that No. 58 tional benefit, previously confers simply SENTENCE POST JAIL TIME on state sentenced

provided,11 is, course, March after This Under Alabama law a convicted legislation of all ameliorative the result given option felon is taking either goes into effect a certain which “non-working” appeal under Title The enactment of ameliorative date.12 Code of Section Alabama (Recomp. repeal or the a criminal legislation 1958) “working” under Title statute, has not- been held to (Re- Code of Alabama to the enactment of No. 11. Prior Act 58 the Circuit First consistently pre addressing courts had held that a similar contention stated: punishment, detention was not trial that a might “The same situation arise when a obliged full serve the term of legislature prospectively the reduced maxi- regard without time his sentence to in crime, penalty for a mum for then a State, sentencing. Ryan jail prior to Ala. penalty sentenced to the maximum before 105, 1894, 766; Bailey State, 100 Ala. 14 So. date of the effective the act would serve a 136, 137; Ala.App.1975, 315 Broadnax So.2d imprisonment longer than one sentenced to State, 1975, 265, 270; Ala.App. 310 So.2d Tee term the maximum thereafter. Yet we are State, Ala.App.1975, ple v. So.2d 308 any of not aware violation of the constitu- State, 1971, Ala.App. Ala.App. Robinson v. rights group of either tional of in 51, 249 So.2d 872. situation, nor in the one before us Commonwealth, Comerford In Cir. 1956, 233 F.2d cert. denied 352 U.S. at 295. F.2d Amendment. Cooks principally relies in Pursuant to Section comp.1958).13 respect upon Beto, this Robinson 5 Cir. of an offense convicted person when and Hart v. Hender intention to court of his the trial informs son, supra, wherein this court held the judgment but enters court the appeal mandatory Louisiana suspen Texas and the sentence dur- of execution suspends execution statutes unconstitution sion of While appeal. of the pendency the ing Pearce, 1969, North Carolina v. al under has a appellant the pending appeal is the bail, he was sentenced unless right to Per- imprisonment. years’ than more during appeal release gain unable to sons to the Subsequent filing appeal; of this jail, and county the custody in in however, remain court in Gamble v. Ala the service toward not receive bama, do cert. de imposed. appellant, An the sentence of nied the 373 has pursuant Section rejected the contention that the trial tran- time any Henderson, before option, supra, and Robinson appellate to the Beto, is forwarded script validity control the of the suspension of sentence court, scheme, waive and held that in the his sentence service of was begin Judge constitutional. and Section Whether a “non- stated for the court in penitentiary. Godbold Gamble : is elect- “working” appeal working” or “The statutes scrutinized and ultimate- appellate process. the affect not ed does invalid Hart and ly held Robinson automatically stayed execution of sen- to take a he did not elect Although during pendency appeal. of An tence contends none- “working” appeal, Cooks stay necessarily would re- automatic entitled to credit he is theless prisoner considering appeal an quire post sentence he was held the weigh against the doubt of success appeal in the Mobile custody pending certainty of extended incarceration the at Mt. facility in the County Jail and appeal. of upon denial natural the denial of claim is that Meigs. The stay these automatic statutes effect of the courts access to impedes such credit taking ap- to inhibit the of would be clause of process the due of in violation peals. Amendment, constitutes Fourteenth the is, on the basis face, discrimination invidious The Alabama scheme on its protec- equal of the in violation from the Louisiana and Tex- wealth dissimilar Fourteenth Amend- suspension statutes. tion clause as automatic multiple punish- ment, stay of sentence execution is and constitutes Alabama avoidable, offense in violation avoidance results in no the same and ments for applies prisoner taking as it effect to the Amendment adverse the Fifth Appellee through appeal. the Fourteenth has not states [Gamble] judgment (Recomp. where there is “In all cases sus- of Ala. Code 13. Title sentence, pending time before the part: 1958) provides in transcript been forwarded to the clerk of has any question of law is reserved “When court, person, appellate the defendant felony, known it shall be made and case of a attorney, may waive the benefit of desires to the defendant court by filing suspended in the office supreme or to court take the court in which the case of the clerk of judgment appeals, must be ren- the court of tried, writing to that ef- a statement against but execution the defendant dered fect, attorney signed by or his himself ap- suspended thereof must record, the clerk must then enter custody, but peal held in and the defendant suspension date of such waiver fact and exceeding is for a term the sentence if margin upon of the record of of sentence years judge twenty direct the clerk must report judgment and shall said convict the conviction is in which of the court department of corrections director of a sum to be to bail in the defendant to admit institutions, as in cases where there is judge . . .” fixed sentence; suspension judgment or but no (Recomp. of Ala. Code Title suspension shall not affect such waiver of 1958) provides: appeal.” the that facial despite contended fairness L.Ed.2d at 1114 (emphasis added). In in operate fact the Alabama Gamble we further found that the “ap statutes taking appeals. the of to curb the pellee alone determined locus of his a contention and sup- of such absence and had the power detention to compel effect, ‘chilling’ a evidence of portive to prison. his own transfer He failed to optional stay the Alabama of we find power that exercise complain and cannot now the due proc- scheme fulfills sentence of result.” Gamble v. Ala of Pearce.” requirements ess bama, supra, at 98. Alabama, supra, at 97. Gamble Counsel for appellant asserts that v. Tompkins, on Dimmick Relying Dimmick and Gamble distinguishable are L.Ed. from the present case since the record reject- in also the decision Gamble here does not demonstrate Cooks that credit must voluntarily ed the contention and knowingly waived the jail granted ap- right served to commence service of his sen- Supreme Court in peal prison, because tence in the state nor that he was Pearce, supra, found his North Carolina informed of to a choose “work- jeopardy pre- double clause ing appeal”. Cf. Allen Henderson, multiple punishments for a single cludes Cir. 434 F.2d 26. Statements by Supreme Court in pro petitions held offense. Cooks contained se petitioner, a federal Dimmick motions filed the court below and in not entitled to credit on prisoner, was his Court of County Circuit Mobile re- peri- They for the 18-month year indicate, rather, two sentence fute this. that al- county jail held in a though he was rather option od informed of taking penitentiary during appeal chose, in the a “working” than he over the appeal. Finding counsel, his advice trial pendency of his to take a “non specified “imprison- working” Dimmick’s or “standing”‘appeal.14 Cooks . and that prison”, distinguish ment in also seeks Gamble from Cooks, sought present had detention in rather than case since unlike the during penitentiary appeal, Gamble, appellee in the was transferred stated that he could county jail the Court not “take from the to the Medical and of his advantage Diagnostic own action Center Meigs, at Mt. Ala- bama, shorten thereby imprison- the term weeks conviction, three after and, therefore, . . . prison ment in the . To not given the benefits of hold otherwise would be inconsistent local confinement. This contention is general principle person with the that a without merit light of the similarly fact permitted take advantage shall not be appellant’s transfer to the fa- of another which was cility Meigs act commit at Mt. conduct”, “was caused his request, upon Dimmick, ted was caused own while conduct.” Dimmick Tomp jail.16 his own county confined in the It does not kins, 548-49, supra, at 24 S.Ct. at 48 lie mouth to complain in Cooks’ now (as right) Diagnostic a 14. “Petitioner taken [Cooksl The Medical Center at Mt. although part ‘standing appeal’ stipulations Meigs prison with that he Alabama system go prison security facility, were not until the is a minimum ‘outcome’ and also appeal.” receiving of his serves as center new inmates assigned where are classified and to ei- Record at Atmore, Holman, Draper, ther or Tutwiler “Upon sentencing, Jasper Lee Cooks asked Prisons. Cooks was transferred from Mt. standing granted . . .” for/was penitentiary Holman, Meigs to the at June Record at standing appeal my facility “I chosed because life 16. The transfer Cooks to the at Mt. Meigs had is-threatened Atmore and been-and result of a was the motion Commit- My lawyer Safekeeping Prison. Holman was informed at filed ment for the Chief Assist- weeks, although Attorney. I this. He tried several ant District motion averred my problem get defendant, change Jasper Cooks, me told him that “the Lee alias appeal!” Cooks, my working “Tiny” danger anneal to a is a and threat to all original). (underlining Record come in with those who have contact him dur- actions, right like those of own counsel or the right his since confront appellee Dimmick and the Rather petitioner witnesses. their point is that the Gamble, in his incarcerati extending “resulted n their confinement on a county jail Meigs] at Mt. that is invidiously in the basis [and discriminatory. suspension of sentence exe- resultant Unequal treatment is the heart of their Alabama, supra, Gamble claims. Gremillion cution”. did not address such contention; indeed, we observed in a that footnote Louisiana’s statute did not judgments appealed The from are each an “impose arbitrary classification.” AFFIRMED. Alabama’s practices Whether have done very question so is the issue here. GODBOLD, Judge (dissenting): Circuit my In view the guiding precedent here majority The concludes Jackson is not Gremillion Henderson, but Hart v. Cooks, indigents who were confined (C.A.5, 449 F.2d 183 1971). We held in because to sentence of their inabili- prior Hart that “the inability of an indigent bail, are not constitutionally make ty to criminal defendant to make bond should to credit for served. It entitled . extending not result in the duration of is not concludes Cooks entitled also imprisonment beyond his the statutory the time he to credit for maximum.” F.2d at 185. This re appealing he was while conviction. was reached on sult wealth-discrimina making rulings, both of these the ma- In grounds, particular tion with reference to grips has failed to come with jority Supreme to the Court’s decisions in Wil contention that appellants’ denial of liams v. credit is invidious discrimination on the 2018, (1970), 26 L.Ed.2d 586 and Tate v. uphold I would of wealth. basis Short, contexts, in both and there- contention (1971). petitioner dissent. fore I had been sentenced to the statuto term, ry maximum and our decision met A. Pre-sentence detention credit only the factual situation before us. In involving prisoners a case sentenced to My recognize brothers that their deci term, the maximum less than detention credit is sion govern Hart should unless there is some circuits,1 rulings in other contrary to but justification rational retaining say “binding prior decisions of they maximum-term limitation. oblige this court” them to decide as discussing why Before I trace this circuit’s “rule” believe that They do. back justification exists, no such statement in Gremillion v. Hen I should derson, (C.A.5, 1970), that the Judge 425 F.2d 1293 stress later cases Simpson right is no federal constitutional cites have left this question open. “there prior Wainwright, to credit for time served to sen Hill v. (C.A.5, F.2d 414 disagree. quoted 1972), indigent prisoner tence.” I lan sentenced to guage, even if it is taken as the true us, a maximum term was before and we (a proposition of the case naturally ratio decidendi followed pointed Hart. We doubt),2 open simply which is does not appellant out that the in Gremillion had dispose sentence, of the wealth discrimination ar not received a maximum so .but tendered Jackson and gument appears Cooks. far as we were only trying to point is not that credit is a Appellants’ precedent that Hart was the show with constitutional like the substantive the closest factual resemblance to County ing F.Supp. (E.D.Wis.1973); Gilligan, Mobile Jail his confinement White v. danger F.Supp. (S.D.Ohio 1972) (three-judge to be a . . and “is believed court). himself and to his cell mates . . . 30-31. Record at portion 2. A of the stated rationale of Gremil- Wyrick, (C.A.8, King significant exposes 1. See 516 F.2d 321 factual lion distinction Carolina, 1975); v. North 471 F.2d 406 Ham between that case and the instant case. See Gray, (C.A.4, 1971) (semble); Monsour v. note 8 infra. say at bar. We did not or even termination of how case much confinement that the strongly imply particular duration of for a offense will serve the ultimately would penological sentence state’s prisoner’s interests is made in critical. In Cobb v. Bailey, by to be the instance prove first the legislature, 1972), (C.A.5, only imposes the Ala 469 F.2d 1068 which outer limits. But it series, we went case in this consid bama made in second by judges instance way point erably out of our to out that juries. alleged any facts that had not Cobb In us, each of the two cases before we trigger equal protection analy might know what do not factors the jury in Hart. We made it sis undertaken deciding weighed on a proper sen- if Cobb had not to clear “fail[ed] assured, tence. We can rest the Alabama al allege that after Courts it did not take into consideration discriminatorily lowed bail she was de credit for detention. As it,” to make opportunity nied the Judge Simpson expressly recognizes, Ala- that we were “bound our conclusion bama did not at that time authorize such ” decision in Gremillion would not follow. given. credit to be There is no reason to Moreover, in a today’s dictum which ma think that jury Jackson’s even knew that overlooks, we

jority specifically recog already he had been incarcerated for appellant’s nized that the Gremillion years. two nearly Nor can we assume less-than-maximum sentence was not a jury that Cooks’ knew that he had been consideration.3 Finally, material Parker incarcerated for over nine months.4 The Estelle, (C.A.5, 1974), 498 F.2d 625 majority is not concerned that denial of denied, cert. 95 S.Ct. appellants the relief seek will result (1975), 44 L.Ed.2d 450 decided imposition greater sentences than a “presumption” the basis of that credit those determined these juries two “as given, had indeed been and we noted in necessary satisfy to the states ‘penologi- ” that “no passing unconstitutional basis” policies.’ cal interests and If there is denying alleged. credit had been In some reason we give should more defer- short, abundantly it is clear that the is ence the legislature’s determination sues in this case cannot be evaded on than jury’s, we are not told what grounds. stare decisis the .reason is.5 only arguments I can think of three In its discussion of Parker v. Es might support be advanced to limit- telle, supra, the majority appears to de ing with maximum rive from comfort the idea that unless sentences, persuasive. and none is the pre-sentence detention plus According Judge Simpson, baila- trial court’s sentence exceeds the statu indigent defendants ble are entitled to tory penalty maximum offense, only when have been sen- reviewing courts must conclusively pre maximum, to the statutory tenced be- sume that the trial court give did in that cause circumstance would time served. In federal criminal denial of credit result “in imposition cases we have taken this “conclusive pre greater than that deter- sumption” approach since Bryans v. legislature Blackwell, mined as neces- (C.A.5), F.2d 764 cert. de sary satisfy ‘penological nied, states in- ” added). and policies’ (emphasis terests (1967). Bryans L.Ed.2d 421 adopt we This is too constricted a view. The de- ed the view of the District of Columbia urged 3. “It is now that Gremillion is Certainly distin- Williams v. does not guishable present from the case because he support legislatively such deference. It was a had been sentenced less than the maximum “working enacted scheme for off” fines that Court, however, term. The intimated no such Williams struck down. basis for its declaration.” 469 F.2d at 1070. jury 4. Cooks’ brief declares that did not have this information. The state does not deny this statement. allowing be imposed person individual defend- on a Circuit willing ” contrary pay ants to offer evidence would a fine.’ and able to enormous administrative inconven-

cause 28 L.Ed.2d at Here, although ience.6 we are concerned with inability pay indigent’s bail rather Contrary majority implies, to what the fine, clearly than a Tate’s admonition is held that giving we have never pertinent. majority Yet the does not at- conclusively presumed credit must be ir- tempt explain why the duration of the respective framework any sentence should make difference in particular which a within sentence was applying Williams to facts of this imposed. In Gremillion we expressly de- case. clined to decide whether the presumption apply. should And in Parker we em- When analyzed Williams is one sees braced no “conclusive” presumption. On originally prompt- that the factors which contrary, we weighed the evidence as ed the Court to confine narrowly its rule given. to whether credit had been Both have no force here. In that case an these cases had arisen in states where Illinois statute a allowed court to impose pre-sentence detention credit was within (a) jail (b) both term and a fine that discretion, where, the court’s there- be replaced by would an extra term in fore, some kind of presumption might be jail if the defendant could not pay. Wil- appropriate. There is no reason to have liams had received a jail maximum sen- presumption respecting such fine, tence and a but since he was an prisoners, because Alabama has indigent he was ordered to remain in traditionally denied credit to all defend- prison period for a longer jail than his course, ants. Of the uniformity of this sentence until he had “worked off” the practice completely state’s undermines fine at the rate of five per dollars day. argument alleged based on the in- The Supreme Court found that “the Illi- investigating convenience of whether applied nois statute as to Williams works was given individual cases. an invidious discrimination solely be- cause he is unable to pay the fine.” 399 Finally, may it be that Hart re- U.S. at 90 S.Ct. at 26 L.”Ed.2d holding prisoners stricted its sen- Accordingly, at 593. the Court held tenced to maximum simply terms be- “that a State not constitutionally cause Williams v. supra, had con- imprison beyond the maximum duration roughly tained a corresponding limita- fixed statute a defendant who is fi- said, I tion. As have the Hart court nancially unable pay a fine.” holding limited its properly to the facts U.S. at S.Ct. at But, question it. now that before is at 594. presented, we should squarely recognize logic of Williams is not limited Why did the Court limit its holding to maximum sentences. In Tate v. serving jail maximum sen- Short, supra, seven members of the Williams, Su- tences? As I read the Court expressly rejected the preme trying Court no- was to foreclose future suits always tion that the Williams doctrine charging equal protection was vio- indigent’s an depends upon being held in an lated because individual judge had custody beyond a statutory maximum an excessive imposed “ period: ‘The same constitutional defect account of the accused’s indigency. condemned in Williams also inheres in declared it would not'inquire Court

jailing indigent an for failing to make whether a judge’s into exer- payment immediate of any fine cise of was in discretion some sense jail whether or not the term of the indi- by allegedly invidious wealth tainted dis- gent beyond extends the maximum term Limiting holding crimination.7 S., Stapf U.S.App.D.C. 6. See position U. 7. The Court’s with the consistent (1966). F.2d 326 always appellate resistance it has shown to on the merits. review of criminal sentences ence threat to sen- this burden the case circumvented whether or they are because prerogatives, by hypoth- tencing ultimately sentenced to the statutory no discretion to sentence King Wyrick, esis courts maximum. See beyond to remain & defendants n. 3 (C.A.8, 1975). statutory maximum. majority has failed to distinguish reasoning support does not Such case from Hart in a convincing man- “statutory maximum” limitation in the Certainly the ner. state may ap- take Ordering the state to case. allow propriate instant measures to secure an ac- detention would presence cused’s trial. If it cannot sentencing judges’ juries’ not affront monetary obtain sufficient security, pre- in the exceedingly diffi- “wide discretion trial confinement appropriate determining appropriate cult task of means to this end. But I see no state variety in the countless punishment interest is served by denying credit id., appear,” because the situations persons experienced who that confine- these two cases did not juries in have solely ment because could not make to allow any discretion credit and from fact, bail. As a matter of during oral did not do so.8 At appearances argument all we invited counsel for Ala- time, similarity basic same between suggest bama possible such a state toj and Williams stares us in the this case so, interest.' He declined to do resting Illinois’, procedure, like face: Alabama’s on the supposed instead absence a pri- for the indigents out burden of ma facie singles right.9 constitutional From all They extra-long experi- confinement. appears, therefore, the discrimina- S., 424, 440-41, Dorszynski equal protection v. U. 418 U.S. fore Cf. fails the test set forth in very 41 L.Ed.2d 867 Judge Simpson 94 S.Ct. case invokes: we (1974). only “inquire challenged must whether the dis rationally legitimate, tinction furthers some ar Here the difference between this case purpose.” Royster, ticulated state McGinnis v. apparent. pointed We Gremillionbecomes out 263, 270, 1055, 1059, 410 U.S. 93 S.Ct. then-prevailing that under Loui- in Gremillion (1973) (emphasis added). I sentencing judge complete law the siana supposed how also wonder state interest grant deny pre-sentence discretion deten- could make a decisive difference here if it was opinion It seems that the rested tion credit. Hart; impact decisive-in not of credit on (a) premises: poor two Both rich and on equally were surely rehabilitative efforts is prisoners the same for subject to this discretion. Hence we serving who are maximum sentences (but properly say here) there not could the who are not. procedures “impose did not state’s arbi- trary The failure of argu- classification.” 425 F.2d at 1294 n. 4. the state to make the (b) particular Judge Simpson per- ment haps A exercise of discre- makes for it is ordinarily open tion is not to constitutional understandable. A federal district court precisely recently This is what closer to the situation then attack. de- we are has prison system Williams afterwards, found a short while but it the Alabama clared has has case, “very nothing programs,” do with the instant few rehabilitation since dis- and that totally implicated inadequate provide even is not here. these “are cretion opportunities reasonable for rehabilitation —or belaboring point, At the risk of I submit prevent physical even to tion—of most of the and mental deteriora- distinguishable is that Gremillion from this prison population.” majority The decides case. otherwise be- Wallace, F.Supp. (M.D. James v. phrase it has seized on an isolated cause in—“no federal constitutional there- Ala.1976). trying prejudge I am not right” —instead merely point merits of James. 1 that if guesswork desire to out opinion’s analyzing reasoning. adjudicate through we cases like this majority claims in a we run 9. The footnote that “it is a considerable risk of reducing guessing wrong. not unreasonable to conclude” that prisoners’ penitentiary might Applying more, terms frus- McGinnis test once efforts, rehabilitative trate the state’s penitentiaries since the should mention one state interest that is in- programs quali- have rehabilitation deed “articulated” but does not seem to fy “legitimate.” jails have none. With and the deference I historic basis for Ala- point majority indulging pre-sentence out that the must in sheer ceedings is bama’s refusal allow detention speculation. pro- years ago Ryan At no time in these credit was stated 80 suggested State, (1894): has state that it denies 100 Ala. 14 So. 766 confine- “punishment”. detention credit for the sake of ment before trial is not my part, For majority’s argument persuaded pretrial rehabilitation. there- I am not con- today utterly legally eligible is an not upheld invidious tion bail.10 Gamble one, favoring wealthy over the indi- therefore could not and did dispose justification. real without Our wealth gent of the argument discrimination generous demands a more by Cooks tendered here. Constitution Illinois, supra; Williams outlook. my I think discussion amply above California, Douglas v. 372 U.S. that the demonstrates state’s failure to (1963); Griffin S.Ct. to bailable indigents allow while they appeals serve their are (1956). L.Ed. 891 is a violation equal pro- clause. There is no constitutional

tection confining bar to Alabama’s defendants detention B. Post-sentence to post ap- who are unable bail until an By decision is reached. withhold- pellate briefly more to the issue I now turn however, credit, ing requires the state post-sentence detention credit. The ma indigents bailable to serve longer sen- Alabama, states that Gamble v. jority court, tences than have received in denied, (C.A.5), cert. 509 F.2d 95 while other bailable convicts can retain 267, 46 L.Ed.2d 250 temporarily. their freedom Absent a (1975), controlling was, here. Gamble “legitimate, articulated purpose” narrowly opinion. written discrimination, for this see note 9 interpreted Dimmick v. Tompkins, We it is unconstitutional. 540, 24 S.Ct. 48 L.Ed. 1110 has, to mean that if a (1904),

electing county jail, to remain in a cho delay the execution

sen to of his sen appeal, he

tence has him required if he is then

self to blame in prison. his full sentence

serve This equitable estoppel theory. COMPANY, was a sort of F. W. WOOLWORTH compass is clearly Respondent, Its narrow demon Petitioner-Cross by the fact that we strated did accord periods for two post- Gamble credit NATIONAL LABOR RELATIONS time he had in the county BOARD, Respondent-Cross time between when he was con —the Petitioner. appeal, victed and when he filed his No. 75-1878. also the time between when his convic and when tion was affirmed the state Court of Appeals, United States prison him transferred these Fifth Circuit. —since periods of confinement had not resulted April from his own choice. Rehearing Rehearing En Banc Cooks, It be true that like Gam- 2, 1976. July Denied ble, detention, chose his locus of and if protest so he cannot now about the con- true,

sequences of his choice. It is also

however, that Cooks could have avoided

being detained at all if he had had the post resources needed to

financial bond. Gamble, was not true of who This months, years, term, 30-year let finement of nine alone two He had been sentenced to a merely casually dismissed one of the can and he elected a “direct” under Tit. being (Recomp.1958). for trial pro- costs of bound over on criminal Code of Ala. 372 § That may, again vision, however, charges. that as it fore- Be does not authorize bail for years. that this state interest is contention those whose sentence exceeds 20 closes All enough opinion, to withstand the wealth these facts are stated the Gamble substantial argument raised here. discrimination

Case Details

Case Name: Arthur Jackson, Jr. v. State of Alabama, Jasper Lee Cooks v. Circuit Court of Mobile County

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Aug 16, 1976

Citation: 530 F.2d 1231

Docket Number: 75-1186, 75-1879

Court Abbreviation: 5th Cir.