                                                 RENDERED: MARCH 23, 2017
                                                       · TO BE PUBLISHED


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                                                        [Q)~U!Ei\2'{)11 k',M t2«.h-,,IX.
DURAND EDWARD MURRELL                                                APPELLANT


                    ON REVIEW FROM COURT OF APPEALS
V.                     CASE NO. 2015-CA-001651-MR
                   BOYLE CIRCUIT COURT NO. 15-CI-00229


DON BOTTOM, WARDEN                                                    APPELLEE
NORTHPOINT TRAINING CENTER



            OPINION OF THE COURT BY JUSTICE CUNNINGHAM

                      AFFIRMING ON OTHER GROUNDS


      In May of 2015, Appellant, Durand Edward Murrell, then a prisonC?r at

the Northpoint Training Center, filed a Petition for Writ of Habeas Corpus in

the Boyle Circuit Court. against Warden Don Bottom.

      In 1993, a Jefferson Circuit Court sentenced Appellant to a total of forty-

two years' imprisonment for seventeen counts of first-degree robbery, six

counts of second-degree wanton endangerment of a police officer, and one

count each of third-degree assault of a police officer and first-degree escape. In

1994, the United States District.Court for the Western District of Kentucky

sentenced Appellant to 152 months' incarceration for one count each of armed

bank robbery, use of a firearm in a crime of violence, and carjacking..
Appellant's federal sentence was ordered to be served consecutively to his state

sentence. At the time of Appellant's federal sentencing, he was in the custody

of the Kentucky Department of Corrections ("DOC"). Consequently, the Federal

Bureau 'of Prisons ("FBOP") issued a detainer in order to obtain custody upon

Appellant's release from state custody.

      On January 18, 2001, the Kentucky Parole Board ("KPB") paroled

Appellant to his federal detainer. Appellant was then transferred from state

custody to federal custody, where he remained for approximately eleven years .

. On March 31, 2011, FBOP notified DOC in writing of its intent to release

Appellant under federal supervision to Dismas Charities of Louisville Halfway

House. On September 12, 2012, Appellant was released from federal

supervision. Appellant immediately reported to his local Probation and Parole

Office and was placed on active state parole supervision.

      On October 24, 2013, after obtaining new criminal charges, the KPB

revoked Appellant's parole. Appellant filed a petition for writ of habeas corpus

in the Boyle Circuit Court after exhausting possible administrative remedies.

Appellant's_sole ground for his petition was that DOC permanently surrendered

jurisdiction over his sentence when it transferred custody to Federal

authorities in 2001. Appellee, referring the trial court to Commonwealth v.

Marcum, 873 S.W.2d 207 (Ky. 1994), argued that a writ of habeas corpus is

only appropriate if the judgment of conviction under which the prisoner is held

is void ab initio. Furthermore, Appellee cited the current version of Kentucky

Revised Statute ("KRS") 439.340(2) to support his claim that DOC retained

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jurisdiction over Appellant's sentence. On June 18, 2015, the Boyle Circuit

Court accepted Appellee's arguments and issued an order denying Appellant's

petition.

    · On January 16, 2016, the Court of Appeals affirmed the trial court's

ruling. First, the Court of Appeals cited Marcum, and held that "[h]abeas

corpus relief is available only for a prisoner who can establish that the

judgment by which he is being detained is void ab initio." (Emphasis added).

Due to Appellant's inability to demonstrate that his 19.93 state convictions were

void, the Court of Appeals believed a habeas corpus petition was improper. In

further support of its affirmance, the Court of Appeals relied on the current

version ofKRS 439.340(2), which states that paroling a prisoner to another

jurisdiction via detainer "shall not constitute a relinquishment of jurisdiction

over the prisoner ...." This Court granted discretionary review.

      The facts in this case are not in dispute. For that reason, this Court will

. conduct a de novo review of the circuit court's legal conclusions in denying

Appellant's petition for writ of habeas corpus. Commonwealth v. Gaddie, 239

S.W.3d 59, 61 (Ky. 2007).

      A writ of habeas corpus is guaranteed by Section 16 of our Kentucky

Constitution. The right is codified in KRS 419.020, which reads that "[t]he writ

of habeas corpus shall be issued upon petition on behalf of anyone showing by

affidavit probable cause that he is being detained without lawful authority or is

being imprisoned when by law he is entitled to bail." It is important to note at

this point in our review that Appellant was granted parole in October of 2016.

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Our analysis, however, does not change. This Court previously acknowledged

that the "restraints of parole" are substantial enough "to require the court to

consider the merits of the habeas corpus petition." Walters v. Smith, 599

S.W.2d 164, 165 (Ky. 1980) (citing 4 Wharton's Criminal Procedure§ 650 (C.

Torda, 12th ed. 1976)).

Judgment void ab initio

      This Court will first address the trial court's ruling that Appellant's

petition must fail as he did not attack his underlying convictions. The Court of

Appeals upheld this ruling and stated that "[h]abeas corpus relief is available

only for a prisoner who can establish that the judgment by which he is being

detained is void ab initio." (Emphasis added). We disagree with both lower

courts. Limiting habeas corpus relief to only those individuals being detained

by a judgment that is void ab initio is a complete misinterpretation of the law..

Our predecessor Court explained that the "primary purpose" of habeas corpus

relief is to "determine the legality of the restraint under which a person is held."

Walters, 599 S.W.2d at 165 (citing Vickery v. Lady, 264 S.W.2d 683 (Ky. 1953)).

In doing so, this Court has afforded habeas relief to individuals whose

underlying judgment is perfectly valid. Brock v. Sowders, 610 S.W.2d 591 (Ky.
                                                                      '
1980) (habeas relief is appropriate where petitioner is serving sentence in the

wrong jurisdiction); Hardy v. Howard, 458 S.W.2d 764 (Ky. 1970) (petitioner

was entitled to release after being held beyond the satisfaction of his sentence).

      Moreover, the lower courts' reliance on Marcum, to support their

proposition is erroneous. In Marcum, the Court held that generally when a

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prisoner attacks "a judgment which he believes to be defective for one reason or

another," an RCr 11.42 procedure will provide that J?risoner with an adequate

remedy. Marcum, 873 S.W.2d. at 211-12. However, the Court clarified that

habeas relief is more appropriate for "prisoner[s] who can establish in a

summary procedure that the judgment by which he [or she] is detained is void

ab initio." Id. at 212. This holding has proven to be misinterpreted. Therefore,

to clarify, Marcum established that proving a judgment is void ab initio is but

one ground for habeas relief; it is not the only ground. Other means of

demonstrating that a prisoner's detention is illegal may also suffice in

obtaining a writ of habeas corpus-e.g. when a prisoner is being held beyond

his or her lawful sentence.

KRS 439.340(2)

      In regards to the lower courts' second justification for denying

Appellant's petition, we tum to KRS 439.340(2). This statutory subsection

states, in pertinent part, the following:

      [T]he board may grant parole to any prisoner wanted as a fugitive
      by any other jurisdiction, and the prisoner shall be released to the
      detainer from that jurisdiction. Such parole shall not constitute a
      relinquishment ofjurisdiction over the prisoner, and the board.in all
      cases expressly reserves the right to return the prisoner to
      confinement in a correctional institution of the Commonwealth if
      the prisoner violates the terms of his or her parole.

(Emphasis added). The concern we have with the lower courts' reliance on KRS

439.340(2) is that the emphasized language was not included in the statute

until 2002, a year after the KPB paroled Appellant to his federal detainer.

Moreover, as Appellant points out, the statute's language fails to state that it is

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to be applied retroactively. See Commonwealth Dept. of Agriculture v. Vinson,

30 S.W.3d 162, 168 (Ky. 2000) ("[T]here is a strong presumption that statutes

operate prospectively and that retroactive application of statutes will be

approved only if it is absolutely certain the legislature intended such a result.").

Furthermore, Appellant argues that if we elect to permit KRS 439 .340(2) to be

applied retrospectively, his constitutional right to be free from the ai:plication

of an ex post facto law will have been violated. See U.S. Const. art I, § 10, cl.

1., § 9, cl. 3, Ky. Const.§ 19(1). After careful consideration, this Court declines

the opportunity to address the statute's retroactive application because our

case law on this issue is dispositive.

Forfeiture Rule

      Since its inception in 1961, the Commonwealth utilized the "forfeiture

rule" when determining if the state relinquished jurisdiction over a parolee who

was surrendered to another jurisdiction. See Jones v. Rayborn, 346 S.W.2d

743 (Ky. 1961). The best illustration of the forfeiture rule as it relates to the

facts currently before us can be found in Thomas v. Schumaker, 360 S.W.2d

215 (Ky. 1962), overruled by Commonwealth v. Hale, 96 S.W.3d 24, 34 (Ky.

2003). In Thomas, the KPB paroled Mr. Schumaker to a federal detainer. Id. at

215. After serving his federal sentence, Mr. Schumaker returned to Kentucky

and was placed on active state parole. Id. Subsequently, Mr. Schumaker

returned to prison due to a violation of his parole. Id. Mr. Schumaker

obtained a writ of habeas corpus and the Court affirmed. Id. at 216.
                   I




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      The Court explained that KRS 440.330 vested exclusive authority in the

Governor. to surrender "persons under state custody to the authorities of other ·

jurisdictions ... ." Id. In other words, an unauthorized transfer of custody

constituted a relinquishment of jurisdiction. Id. Consequently, since the KPB

lacked either statutory authority or the approval of the Governor, it completely

relinquished jurisdiction when it paroled Mr. Schumaker to his federal

detainer. Id. In practical effect, the forfeiture rule holds that "an unauthorized

transfer of custody constitutes a de facto commutation of sentence because no

mechanism exists for Kentucky to reclaim custody ...." Commonwealth v.

Hale, 96 S.W.3d 24, 34-35 (Ky. 2003).

      In 2003, however, this Court overruled Thomas in Hale,     96 S.W.3d at 37.
In that case, Hale sought habeas relief based on the forfeiture rule. Like

Appellant, Hale argued that the Commonwealth forfeited its right to enforce

further fulfilment of his state sentence after it relinquished custody to federal

authorities. The Court denied Hale relief and determined that the forfeiture

rule is flawed and obsolete. Id. In repudiating the forfeiture rule, the Court

stated the following:

      [T]his harsh remedy ... is a relic that has outlived its usefulness.
      While the forfeiture rule may have had a place as a prophylactic
      measure designed to prevent regression in the midst of a
      paradigmatic change in correctional philosophy, we can discern no
      similarly compelling reason for a forfeiture rule in the 21st
      Century.

Id. (internal citations omitted).




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       While neither the trial court, nor the Court of Appeals discussed Hale, we

find it apparent that Appellant's petition is meritless in light of our

abandonment of the forfeiture rule. Common sense also dictates this holding.

Indeed, federal authorities may dismiss a pending charge or reduce an imposed

sentence, but the prisoner still remains subject to his or her Kentucky parole.

                                  .
There is no relinquishment of jurisdiction. Thusly, in accordance with Hale,
   '



DOC did not forfeit its right to require Appellant to satisfy the remainder of his

sentence upon his return to the Commonwealth.

                                      Conclusion

       For the aforementioned reasons, the Court hereby affirms the Court of

Appeals' affirmance of the Boyle Circuit Court's denial of Appellant's petition

for a writ of habeas corpus.

       All sitting. All concur.


COUNSEL FOR APPELLANT:

Timothy G. Arnold
Department of Public Advocacy


COUNSEL FOR APPELLEE:

Andy Beshear
Attorney General of Kentucky

Courtney J. High tower
Assistant Attorney General




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