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DUR_AND EDWARD MURRELL _ mr

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 OTI'IER _GROUNDS

»In May of 2015, Appellant, Durand Edward Murrell, then a prisoner at
the Nor_thpoint 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 robberj, 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 caijacking._

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 Half`vvay
House. On September 12, 2012, Appellant was released from federal
supervision Appellant immediately reported to his local Probation and Parole
Off`ice 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 1993 state convictions were
void, the Court of Appeals believed a habeas corpus petition was improper. ln
further support of its affirmance, the Court of Appeals relied on the current
version of KRS 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. Comrnonwealth 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.” lt 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.
Torcia, 12th ed. 1976)).
Ji¢dgment 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 l
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 prisoner 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, Marcurn 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 turn 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 of jurisdiction 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

to be applied retroactively. See Commonwealth Dept. ongriculture 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.”).
F`urthermore, Appellant argues that if we elect to permit KRS 439.340(2) to be
applied retrospectively, his constitutional right to be free from the application
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
F`orfeiture Ru le

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. Raybom, 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 lVlr. Schumaker to a federal detainer. Id. at
215. After serving his federal sentence, Mr. Schumal<er returned to Kentucky
and was placed on active state parole. Id. Subsequently, Mr. Schumal<er
returned to prison due to a violation of his parole. Id. ll/lr. Schumaker

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

The Court explained that KRS 440.330 vested exclusive authority in the
Governor-l 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).

ln 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:

r

[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 2lst
Century.

Icl. (internal citations omitted).

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 Hdle,
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:
’I`irnothy G. Arnold

Department of Public Advocacy
COUNSEL FOR APPELLEE:

Andy Beshear
Attorney General of Kentucky

Courtney J. Hightower
Assistant Attorney General

