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rel04/27/2007AUSTIN

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ALABAMA COURT OF CRIMINAL APPEALS
OCTOBER TERM, 2006-2007 _________________________ CR-06-0505 _________________________ Ildefonso Austin v. Alabama Department of Corrections Appeal from Montgomery Circuit Court (CV-06-2010)

BASCHAB, PRESIDING JUDGE

During a prison disciplinary proceeding, the appellant, Ildefonso Austin, an inmate incarcerated at St. Clair

Correctional Facility,

was found guilty of intentionally

creating a security, safety, or health hazard, a violation of

CR-06-0505 Rule #62, Regulation #403. He was sanctioned with placement

in disciplinary segregation for 15 days and the loss of visitation, telephone, and store privileges for 45 days. The

appellant filed a petition for a writ of certiorari in the Montgomery Circuit Court, alleging that prison officials

violated his due process rights under Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974), during the disciplinary proceeding. After the Alabama Department of

Corrections ("DOC") responded, the circuit court summarily denied the petition. This appeal followed.

The appellant argues that DOC violated his due process rights because it did not give him due notice of the charge against him because it allegedly did not set forth the

specific conduct that could have caused an impairment of the operation of the institution; because the evidence presented during the disciplinary proceeding allegedly did not satisfy the some evidence standard; and because the hearing officer allegedly was not impartial and denied him a full and fair hearing.1

In his statement of the issues, the appellant lists an issue concerning whether the disciplinary board treated him arbitrarily and capriciously. However, he does not include
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CR-06-0505 First, we must determine whether the appellant filed his petition in the proper form and in the proper circuit court. In McConico v. Alabama Dep't of Corrections, 893 So. 2d 577, 579-80 (Ala. Crim. App. 2004), this court stated: "[T]he writ of habeas corpus was traditionally not available until an inmate was entitled to immediate release. See, e.g., Aaron v. State, 497 So. 2d 603 (Ala. Crim. App. 1986) (citing Ex parte Miller, 54 Ala. App. 590, 591, 310 So. 2d 890 (1975)). In 1980, however, 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), as well as other matters that directly or indirectly affected the time that an inmate was required to remain in DOC's custody, such as a challenge to an administrative rule involving custody classification or the right to earn incentive good time. Implicit in our decisions was the acknowledgment that this Court was better suited to review such matters, while leaving challenges

any argument regarding that issue, as required by Rule 28(a)(10), Ala. R. App. P. Therefore, we will not review that issue.
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CR-06-0505 involving the conditions of confinement to be reviewed on appeal by the Court of Civil Appeals. "However, in Ex parte Boykins, 862 So. 2d 587 (Ala. 2002), the Alabama Supreme Court rejected this practice, holding 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." (Footnote omitted.) Also, in Ex parte Woods, 941 So. 2d 259 (Ala. 2006), Woods filed a petition for a writ of mandamus in the Alabama Supreme Court, asking that court to direct the Montgomery Circuit Court to vacate an order in which it had converted his petition for a writ of certiorari into a petition for a writ of habeas corpus and transferred it to the county where he was incarcerated. The supreme court granted the writ, stating:

"Generally, review by way of a petition for the writ of habeas corpus is not appropriate unless the inmate alleges a deprivation of a liberty interest
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CR-06-0505
or unless a liberty interest is at stake. See

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