ORDERS:
ORDER
I. STATEMENT OF CASE
This matter is before the Administrative Law Judge Division ("Division") pursuant to the appeal of Edward Duelley, an
inmate incarcerated with the Department of Corrections ("Department") continuously since 1995. Duelley filed a
grievance challenging the calculation of his sentence with the Department on August 26, 1996, and received the Regional
Director's decision on September 19, 1996. Apparently, Duelley then filed an Application for Post-Conviction Relief in
1999, which he ultimately appealed to the South Carolina Supreme Court, which remanded it to the Department pursuant to
Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742 (2000). (1) On August 7, 2000, Duelley filed this appeal.
II. BACKGROUND
In 1980, Duelley was convicted of armed robbery and sentenced to thirty-five years. In May 1986, Duelley escaped from
Goodman Correctional Institution. In October 1986, Duelley was arrested in Tennesee, where he was convicted of armed
robbery and bank robbery and sentenced to federal prison. After several detainers, including an escape detainer, were filed
against him by the State of South Carolina, Duelley filed an Interstate Agreement of Detainer requesting a speedy trial on
the escape detainer. According to Bureau of Prisons documents, Duelley's federal sentence ran concurrently with a 38
year sentence for State of Tennessee charges of armed robbery and bank robbery. In addition, the Bureau of Prisons
documents indicate that Duelley had a detainer with the Department to serve the remainder of a thirty-five year sentence.
After completing his federal sentences in 1995, Duelley was extradited to South Carolina to complete the thirty-five year
sentence he began in 1980. In 1996, Circuit Judge Gary Clary issued an Order expunging Duelley's record of the escape
charge for violation of the speedy trial rule. Also in 1996, Duelley initiated a grievance that his sentence was calculated
without giving him credit for his federal sentence and has appealed the Department's final decision to the Division. In this
appeal, Duelley argues that the Department is punishing for a crime he was never convicted of and that he is entitled to
have his original 1980 sentence credited for service of his federal sentence. Duelley argues that, if given proper credit for
service of that federal sentence, his max-out date expired in 1998.
III. ANALYSIS
The Division's jurisdiction to hear this matter is derived entirely from the decision of the South Carolina Supreme Court in
Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742 (2000). On September 5, 2001, the Division issued an En Banc Order
in McNeil v. South Carolina Department of Corrections, 00-ALJ-04-00336-AP (September 5, 2001), interpreting the
breadth of its jurisdiction pursuant to Al-Shabazz. The decision holds that the Division's appellate jurisdiction in inmate
appeals is limited to two types of cases: (1) cases in which an inmate contends that prison officials have erroneously
calculated his sentence, sentence-related credits, or custody status; and (2) cases in which the Department has taken an
inmate's created liberty interest as punishment in a major disciplinary hearing.
In this case, Duelley alleges that he is entitled to have his thirty-five year sentence credited for service of his federal
sentence and that his record should be expunged of the escape charge. With regard to the calculation of his sentence, I find
that this tribunal has jurisdiction to hear Duelley's appeal.
As in all cases subject to appellate review by the Division, the standard of review in these inmate grievance cases is limited
to the record presented. An Administrative Law Judge may not substitute his judgment for that of an agency unless the
agency's determination is affected by error of law or is clearly erroneous in view of the reliable, probative, and substantial
evidence in the whole record. S.C. Code Ann. § 1-23-380(A)(6) (Supp. 1999); Al-Shabazz, 338 S.C. at 380, 527 S.E.2d at
756; Lark v. Bi-Lo, Inc., 276 S.C. 130, 276 S.E.2d 304 (1981). Moreover, to afford "meaningful judicial review," the
Administrative Law Judge must "adequately explain" his decision by "documenting the findings of fact" and basing his
decision on "reliable, probative, and substantial evidence on the whole record." Al-Shabazz, 338 S.C. at 380, 527 S.E.2d at
756. In a miscalculated sentence case, the grievance procedure established by the Department, in which an inmate has the
opportunity to raise the matter to prison officials and in which a reviewable record is created, satisfies the requirements of
due process. Al-Shabazz, 338 S.C. at 375, 527 S.E.2d at 753. I find that the Department afforded Duelley all process that
was due in these circumstances. Duelley raised the issue of his sentence calculation by filing a grievance, in which he
stated his belief that he should be given credit for serving his federal sentence. After verifying Duelley's sentence
calculation, the Warden responded by explaining that Duelley's time spent outside of the South Carolina Prison system was
"dead time" for which he could not be given credit. Duelley was then permitted to appeal the Warden's decision to the
Department level. Afterwards, Duelley applied for Post-Conviction Relief and appealed that decision. After his appeal of
his PCR application was remanded to the Department, the Department informed Duelley that he could appeal the
Department's final decision to the Division. As such, I find that the Department complied with the minimal due process
required in this case.
Moreover, I find that there is substantial evidence that the Department correctly calculated Duelley's sentence when it
refused to credit him with service of his federal sentence. In his brief, Duelley argues that the Supreme Court's decision in
Robinson v. State, 329 S.C. 65, 495 S.E.2d 433 (1998), supports his position. In Robinson, a convicted felon out on appeal
bond left the state and, after his conviction was affirmed, was arrested and convicted of gang-related federal charges in
Chicago, his federal sentence to run concurrently with his state sentence. While incarcerated in federal prison, Robinson
filed a PCR application seeking credit in South Carolina for time served in federal custody. The Court held that, for
purposes of calculating credit for time served, persons released on appeal bond commence service of their sentences when
they submit to the custody of the Department. Clearly, this holding does not apply to Duelley, who had not been released
on appeal bond but had escaped.
However, in dicta, the Robinson Court also stated that
[a] convict may also receive credit for time served in another jurisdiction by notifying the [Department] that he is unable to
personally submit to South Carolina custody to commence the service of his sentence. Upon such notification, the
[Department] will place a detainer on the convict. While the convict is subject to a South Carolina detainer, he is
constructively in South Carolina custody. As a result, a convict will receive credit for time spent in another jurisdiction
while subject to a South Carolina detainer.
329 S.C. at 71, 495 S.E.2d at 436-37.
Duelley argues that this passage requires the Department to credit him for the years he spent in federal custody because he
was subject to a South Carolina detainer and had submitted to its jurisdiction by filing an Interstate Agreement of Detainer
requesting a speedy trial. However, the facts of Robinson are clearly distinguishable from the facts present in this case.
First, unlike Robinson, Duelley was not out on appeal but had escaped from South Carolina custody. Second, Duelley, as
an escapee, was not commencing his sentence but completing his sentence. Most importantly, however, unlike Robinson's,
Duelley's federal sentences ran concurrently only with each other; they did not run concurrent with his state sentence.
In short, it is clear that Robinson would apply only when a convicted felon who is absent with leave from the Department is
later convicted of criminal charges in another jurisdiction and is given a sentence to run concurrently with his state
sentence. Here, Duelley fails to meet two of these requirements; he was neither absent with leave nor did he receive a
federal sentence to run concurrently with his state sentence. Consequently, Duelley did not resume serving his South
Carolina sentence until he was returned to state custody in February 1995. Contrary to Duelley's beliefs, the resumption of
his original thirty-five year sentence is not punishment for his 1986 escape. Instead, the resumption of his original, thirty-five year sentence is justice for his 1980 commission of armed robbery. That Duelley took an unauthorized hiatus while
serving that 1980 sentence is of no consequence in this instance.
IV. ORDER
IT IS THEREFORE ORDERED that the Final Decision of the Department is AFFIRMED;
IT IS FURTHER ORDERED that Duelley's appeal is DISMISSED.
AND IT IS SO ORDERED.
____________________________________
C. DUKES SCOTT
ADMINISTRATIVE LAW JUDGE
November 6, 2001
Columbia, South Carolina
1. In addition, Duelley filed Motions for Writ of Mandamus and Habeus Corpus regarding the same issue on January 25,
2000, which Circuit Court Judge Thomas W. Cooper granted on April 18, 2001. However, by Order to Stay dated June 14,
2001, Judge Cooper stayed Duelley's Writs pending a final order of the Division. |
