United States District Court, N.D. Florida, Tallahassee Division
REPORT AND RECOMMENDATION
CHARLES J. KAHN, JR. UNITED STATES MAGISTRATE JUDGE
the court is a petition for writ of habeas corpus filed under
28 U.S.C. § 2254. (Doc. 1). Respondent moves to dismiss
the petition for petitioner's failure to exhaust state
court remedies. (Doc. 8). Petitioner opposes the motion.
(Doc. 10). The matter is referred to the undersigned
Magistrate Judge for report and recommendation pursuant to 28
U.S.C. § 636 and N.D. Fla. Loc. R. 72.2(B). After
careful consideration, the undersigned concludes that no
evidentiary hearing is required for the disposition of this
matter. Rule 8(a) of the Rules Governing Section 2254 Cases
in the United States District Courts. The undersigned further
concludes that the pleadings and attachments before the court
show that petitioner failed to exhaust state remedies and
that his petition should be dismissed without prejudice.
FACTS AND PROCEDURAL HISTORY
is an inmate of the Florida penal system currently confined
at Wakulla Correctional Institution in Crawfordville,
Florida. (Doc. 1, p. 1). Petitioner is serving a 45-year term
of imprisonment for sexual battery imposed by the Broward
County Circuit Court in 1982, followed by a consecutive
2-year term of imprisonment for escape imposed in 1983.
(Id., pp. 1-2). Petitioner's present habeas
petition challenges the Florida Department of
Corrections' (FDC) refusal to apply
“awarded/recorded/pending” incentive gain time to
his Tentative Release Date (TRD). (Id., pp. 9, 19).
7, 2016, petitioner filed a petition in the Wakulla County
Circuit Court seeking a writ of habeas corpus, or, in the
alternative, a writ of mandamus commanding the FDC to apply
incentive gain time to his TRD. (Doc. 8, App. at
1-9). The petition was assigned No. 2016-120-CA.
(Id.). On July 19, 2016, the Wakulla County Circuit
Court found that petitioner failed to allege a plausible
claim for habeas relief (i.e., entitlement to immediate
release), deemed the petition a mandamus petition, and
transferred the petition to the Leon County Circuit Court.
(Id. at 10-11). Petitioner appealed the transfer
order to the Florida First District Court of Appeal (First
DCA), and the appeal was assigned No. 1D16-3509.
(Id. at 36). On December 29, 2016, the First DCA
designated the appeal as an appeal from a non-final order,
and ordered briefing. (Id.). After briefing
(id. at 37-53, 54-68, 69-84), the First DCA affirmed
per curiam without opinion. See Meyers v. Fla. Dep't
of Corr. Sec'y, Julie L. Jones, 227 So.3d 571 (Fla.
1st DCA 2017) (Table) (copy at Doc. 8, App. at 85). The
mandate issued July 6, 2017. (Doc. 8, App. at 87). On
November 6, 2017, petitioner filed a motion in the First DCA
seeking an extension of time to move for rehearing.
(Id. at 88-91). The First DCA denied an extension on
November 8, 2017. (Id. at 92).
asserts that the state courts have not addressed the merits
of petitioner's gain time claim, and that he still has a
remedy available to him in the Leon County Circuit Court.
Accordingly, respondent contends, petitioner's federal
habeas petition should be dismissed without prejudice for him
to finish exhausting state remedies. (Doc. 8). Petitioner
responds that a miscarriage of justice will occur if this
court does not address his claim on the merits and instead
requires exhaustion. (Doc. 10). Petitioner asserts:
“Keeping an honorably discharged military veteran, with
numerous disabilities, unconstitutionally imprisoned, because
he fails to comprehend the complexities of law, under the
guise of justice, is unjust.” (Id., p. 1).
petitioner is in custody pursuant to a state court judgment,
his habeas petition is governed by 28 U.S.C. §§
2241 and 2254, including § 2254's attendant
restrictions. See Medberry v. Crosby, 351 F.3d 1049,
1062 (11th Cir. 2003) (“[I]f a state prisoner is
‘in custody pursuant to the judgment of a State court,
' his petition is subject to § 2254.”
(quoting 28 U.S.C. § 2254(a))). Section 2254(b)
requires a state prisoner to exhaust all available state
court remedies before filing a § 2254 petition.
See 28 U.S.C. § 2254(b)(1). Section 2254(c)
provides: “An applicant shall not be deemed to have
exhausted the remedies available in the courts of the State,
within the meaning of this section, if he has the right under
the law of the State to raise, by any available procedure,
the question presented.” Id.; see also
Picard v. Connor, 404 U.S. 270, 275 (1971) (holding that
the exhaustion requirement is “designed to give the
State an initial opportunity to pass upon and correct alleged
violations of its prisoners' federal rights.”
(internal quotation marks and citation omitted));
O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)
(holding that “state prisoners must give the state
courts one full opportunity to resolve any constitutional
issues by invoking one complete round of the State's
established appellate review process.”). If a
petitioner fails to exhaust state remedies, the district
court should dismiss the petition without prejudice to allow
for exhaustion. See Rose v. Lundy, 455 U.S. 509,
Florida, judicial review of agency action by the FDC
involving gain time credits and calculation of a release date
is available by petition for extraordinary relief (mandamus
or habeas corpus) in the circuit court. See Williams v.
Moore, 752 So.2d 574, 575 (Fla. 2000); Harvard v.
Singletary, 733 So.2d 1020, 1021-22 (Fla. 1999). Review
of the circuit court's decision is available by petition
for writ of certiorari in the appropriate district court of
appeal. See Sheley v. Fla. Parole Comm'n, 720
So.2d 216 (Fla. 1998); see also Fla. R. App. P.
9.030(b)(2); Fla. R. App. P. 9.100.
record establishes, and petitioner does not dispute, that he
has not completed the process of exhausting state court
remedies and that those remedies remain available to him.
Petitioner's argument that it is “unjust” to
require him to satisfy the exhaustion requirement is
unavailing. See Lundy, 455 U.S. at 520 (“Just
as pro se petitioners have managed to use the
federal habeas machinery, so too should they be able to
master this straightforward exhaustion requirement.”).
Petitioner's § 2254 petition should be dismissed
without prejudice to allow him to return to state court to
exhaust Florida's judicial review process.
11(a) of the Rules Governing Section 2254 Cases in the United
States District Courts provides: “[t]he district court
must issue or deny a certificate of appealability when it
enters a final order adverse to the applicant.” If a
certificate is issued, “the court must state the
specific issue or issues that satisfy the showing required by
28 U.S.C. § 2253(c)(2).” 28 U.S.C. § 2254
Rule 11(a). A timely notice of appeal must still be filed,
even if the court issues a certificate of appealability.
See 28 U.S.C. § 2254 Rule 11(b).
2253(c) permits the issuance of a COA only where a petitioner
has made a ‘substantial showing of the denial of a
constitutional right.'” Miller-El, 537
U.S. 322, 336 (2003) (quoting 28 U.S.C. §
2253(c)). “At the COA stage, the only question is
whether the applicant has shown that ‘jurists of reason
could disagree with the district court's resolution of
his constitutional claims or that jurists could conclude the
issues presented are adequate to deserve encouragement to
proceed further.'” Buck v. Davis, 580 U.S.
-, 137 S.Ct. 759, 774 (2017) (quoting Miller-El, 537
U.S. at 327). “When the district court denies a habeas
petition on procedural grounds without reaching the
prisoner's underlying constitutional claim, a COA should
issue when the prisoner shows, at least, that jurists of
reason would find it debatable whether the petition states a
valid claim of the denial of a constitutional right
and that jurists of reason would find it debatable
whether the district court was correct in its procedural
ruling.” Slack v. McDaniel, 529 U.S. 473, 484
(2000) (emphasis added). The petitioner here cannot make the
requisite showing. Accordingly, the court should deny a
certificate of appealability in its final order.
second sentence of Rule 11(a) provides: “Before
entering the final order, the court may direct the parties to
submit arguments on whether a certificate should
issue.” 28 U.S.C. § 2254 Rule 11(a). If there is
an objection to this recommendation by either party, that
party may bring such argument to the ...