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Connie E. Mcdaniel v. Secretary

December 13, 2011

CONNIE E. MCDANIEL, PETITIONER,
v.
SECRETARY, DEPARTMENT OF CORRECTIONS, SHERIFF GRADY JUDD, RESPONDENTS.



ORDER

This cause is before the Court on Petitioner Connie McDaniel's timely-filed 28 U.S.C. § 2254 petition for writ of habeas corpus. McDaniel seeks an order from this Court directing the state trial court to award jail credit on her sentence imposed upon revocation of her community control in case no. CF09-7302- XX, which arises out of the Tenth Judicial Circuit, Polk County, Florida. McDaniel does not attack her convictions or the revocation of her community control.

A review of the record demonstrates that, for the following reasons, the petition must be denied.

BACKGROUND

On November 17, 2009, McDaniel entered a nolo contendere plea to possession of methamphetamine and possession of drug paraphernalia as charged in case no. CF09-7302-XX. She also pled nolo contendere to possession of drug paraphernalia in case no. CF09-5130-XX. (Resp. Ex. 1, felony plea form). In return, the state nolle prossed a felony count, possession of methamphetamine, in case no. CF09-5130XX. In accordance with her plea terms, McDaniel was adjudicated guilty of the offenses to which she plead no contest and was placed on 24 months probation for possession of methamphetamine in case no. CF09-7302-XX. Concurrent probationary terms of 12 months were imposed on the misdemeanor counts. McDaniel did not appeal her original judgment. (Resp. Ex. 2).

At McDaniel's request, her terms of supervision were modified by court order on July 9, 2010. (Resp. Ex. 3). Subsequently, McDaniel was arrested for violating probation by committing a new offense. On December 20, 2010, she admitted violating the terms of supervision. Revoking probation, the state trial court placed McDaniel on 18 months community control. (Resp. Ex. 6). McDaniel did not appeal the orders revoking probation and imposing community control. (Resp. Exs. 7, 8)

Again, McDaniel was arrested for violating community control. She admitted the violation on April 15, 2011. Community control was revoked, and she was sentenced to 364 days in the Polk County Jail. She did not appeal the order of revocation dated May 3, 2011, nunc pro tunc to April 15, 2011. (Resp. Ex. 11).

On April 25, 2011, McDaniel filed an undated pro se motion for jail credit. (Resp. Ex. 12). On April 27, 2011, the state trial court entered an order granting additional jail credit. (Resp. Ex. 13). McDaniel filed pro se motions for mitigation and reduction of sentence and to correct sentence under Fla.R.Crim.P. 3.800(c) and 3.800(a) respectively, each dated May 24, 2001. On June 6, 2011, the motions were denied in separate orders. (Resp. Exs. 14-17).*fn1

McDaniel filed another pro se motion for additional jail credit dated June 9, 2011. The motion was denied on June 21, 2011. That same day, McDaniel constructively filed the instant 28 U.S.C. § 2254 petition for writ of habeas corpus. McDaniel was released from incarceration on September 14, 2011.

SECRETARY, DEPARTMENT OF CORRECTIONS NOT A PROPER RESPONDENT

The Secretary is not a proper respondent because McDaniel is not, nor ever was, in the Department's custody on her state court judgment. The respondent in a habeas action is "the state officer having custody of the applicant" if the applicant is in custody. Rule 2 of the Rules Governing Section 2254 Cases in the United States District Courts. "The proper person to be served in the usual case is either the warden of the institution in which the petitioner is incarcerated . . . or the chief officer in charge of state penal institutions." Rule 2, advisory committee's notes. See Rumsfeld v. Padilla, 542 U.S. 426 (2004).

At the time McDaniel filed her federal petition, Sheriff Grady Judd was her custodian. Upon revocation of community control, she was sentenced to 364 days in jail, with credit for time served. She has since been released. Because she has been released, the State of Florida is now the proper respondent in this cause.

DISCUSSION

PRESENT PETITION IS MOOT None of McDaniel's grounds presents a live controversy. In ground one, McDaniel attacks the state trial court's award of jail credit. In addition, she asserts that the jail classification personnel did not apply the credit the state trial court awarded her.

In ground two, McDaniel claims, in constitutional terms, that she is serving time "twice" on her case. She contends that she has not been credited ...


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