Ronald Marlteiz Curry v. Grant Culliver

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FILED

FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS

________________________ ELEVENTH CIRCUIT

JULY 15, 2005

No. 04-13252 THOMAS K. KAHN

Non-Argument Calendar CLERK

________________________

D.C. Docket No. 02-00766-CV-1-CG-L

RONALD MARLTEIZ CURRY,

Petitioner-Appellant,

versus

GRANT CULLIVER, Warden

Respondent-Appellee.

__________________________

Appeal from the United States District Court

for the Southern District of Alabama

_________________________

(July 15, 2005)

Before ANDERSON, BIRCH, and BARKETT, Circuit Judges.

PER CURIAM:

Ronald Marlteiz Curry, an Alabama prisoner convicted of murder and

serving a term of life imprisonment without possibility of parole, proceeding pro

se, appeals the district court’s denial of his habeas corpus petition, which was

brought pursuant to 28 U.S.C. § 2254. On appeal, Curry argues that, in 1999, he

was sentenced as a habitual offender to life imprisonment without parole under

Ala.Code 1975 § 13A-5-9.1 At that time, such a sentence was mandatory and the

sentencing judge was granted no discretion. The Alabama legislature

subsequently amended §13A-5-9, such that trial judges were granted authority to

retroactively consider early parole sentences for non-violent, convicted offenders

based on evaluations performed by the Alabama Department of Corrections

(“DOC”) and approved by the Board of Pardons, provided that such offenders had

no prior Class A felony convictions. The Alabama Supreme Court recently held in

Kirby v. State, 899 So.2d 968, 971-72 (Ala. 2004), that Alabama trial courts now

have authority to consider prisoners’ motions for reduction of sentence under that

statute. Curry argues he qualifies for a sentence reduction under that statute, and,

therefore, he is entitled to a review of his sentence.

1

In his brief, Curry also alleges ineffective assistance of counsel. We granted Curry’s

certificate of appealability solely on the issue of his claim pursuant to Kirby. As such, we

will only review that claim. Murray v. United States, 145 F.3d 1249, 1250-51 (11th Cir.

1998).

2

This Court reviews de novo a district court’s denial of a habeas petition

under 28 U.S.C. § 2254. See Sims v. Singletary, 155 F.3d 1297, 1304 (11th Cir.

1998). Factual findings are reviewed for clear error. Id.

Under the Alabama Habitual Felony Offender Act (“AHFOA”), in all cases

when it is shown that a criminal defendant has been previously convicted of any

three felonies, none of which are Class A felonies, and after such convictions has

committed another felony, which is a Class A felony, such defendant must be

punished by imprisonment for life or life without the possibility of parole, in the

discretion of the trial court. Ala.Code 1975 § 13A-5-9(c)(3). In 2001, the

Alabama legislation adopted a statute which provided as follows:

The provisions of Section 13A-5-9 [including § 13A-5-9(c)(3),

described above,] shall be applied retroactively by the sentencing

judge or presiding judge for consideration of early parole of each

nonviolent convicted offender based on evaluations performed by the

Department of Corrections and approved by the Board of Pardons and

Paroles and submitted to the court.

Ala.Code 1975 § 13A-5-9.1.

After the district court’s decision in the instant case, the Alabama Supreme

Court held that Ҥ13A-5-9.1 provides that an inmate may ask the sentencing judge

or the presiding judge for relief from a previous sentence imposed pursuant to the

[A]HFOA and provides that the court is to consider the evaluation of the DOC in

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considering the inmate’s motion.” Kirby, 899 So.2d at 971. The court further

held that § 13A-5-9 “confers jurisdiction on the sentencing judge or the presiding

judge by giving that judge the power to apply the provisions of § 13A-5-9

retroactively to ‘nonviolent convicted offenders’.” Id. Thus, state trial judges

have jurisdiction to consider an Alabama prisoner’s motion to reconsider his

sentence and the authority under the statute to determine whether the prisoner is a

nonviolent offender based on factors brought before the judge in the record of the

case and information submitted by the DOC and the Parole Board. Id. at 974.

Here, the district court denied Curry’s AHFOA habeas claim after finding

that a prisoner cannot pursue relief under the AHFOA until the procedures

outlined therein had been implemented by the DOC. The Kirby decision clearly

vitiates this finding, as it held that a trial court has jurisdiction under § 13A-5-9.1

to consider a prisoner’s motion for sentence reduction and to determine whether a

prisoner qualifies for parole as a nonviolent offender, with or without evaluations

from the DOC. See Kirby, 899 So.2d at 971.

Section 2254, however, provides the remedy for a state prisoner who claims

that he is in custody in violation of the “Constitution or laws or treaties of the

United States.” 28 U.S.C. § 2254(a). “A state’s interpretation of its own laws and

rules provides no basis for federal habeas corpus relief, since no question of a

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constitutional nature is involved.” Carrizales v. Wainwright, 699 F.2d 1053, 1055

(11th Cir. 1983) (citations omitted).

Curry’s claim on appeal is that he is entitled to a sentence reduction under

§§ 13A-5-9(c)(3) and 13A-5-9.1. This is purely a question of state law, and, as

such, provides no basis for federal habeas corpus relief. See Carrizales, 699 F.2d

at 1055. Because Curry’s claim that he is entitled to a sentence reduction under

Alabama state law provides no basis for federal habeas corpus relief, we affirm the

denial of this § 2254 claim.2 Moreover, Kirby now establishes an avenue of

review for prisoners such as Curry, which Curry has not yet exhausted.

AFFIRMED.

2

We may affirm a decision of the district court “on any adequate ground, even if it is other

than the one on which the court actually relied.” Parks v. City of Warner Robins, 43 F.3d 609, 613

(11th Cir. 1995).

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