United States District Court, N.D. Florida, Pensacola Division
REPORT AND RECOMMENDATION
ELIZABETH M. TIMOTHY CHIEF UNITED STATES MAGISTRATE JUDGE.
cause is before the court on Petitioner's petition for
writ of habeas corpus filed pursuant to 28 U.S.C. § 2254
(ECF No. 1). Petitioner's habeas claims concern state
court proceedings in which Petitioner sought review of the
revocation of his conditional release supervision by
Respondent Florida Commission on Offender Review
(“FCOR”), formerly the Florida Parole Commission.
The FCOR filed a Response to the § 2254 petition, with
relevant portions of the state court record (ECF No.
At the court's direction, the FDOC filed supplemental
argument on the issue of exhaustion/procedural default
(see ECF Nos. 17, 20). Petitioner filed a reply to
the FCOR's Response and supplemental argument
(see ECF No. 26).
case was referred to the undersigned for the issuance of all
preliminary orders and any recommendations to the district
court regarding dispositive matters. See N.D. Fla.
Loc. R. 72.2(B); see also 28 U.S.C. §
636(b)(1)(B), (C) and Fed.R.Civ.P. 72(b). After careful
consideration of all issues raised by the parties, it is the
opinion of the undersigned that no evidentiary hearing is
required for the disposition of this matter, Rule 8(a), Rules
Governing Section 2254 Cases. It is further the opinion of
the undersigned that the pleadings and attachments before the
court show that Petitioner is not entitled to relief.
BACKGROUND AND PROCEDURAL HISTORY
was convicted by a jury in the Circuit Court in and for
Orange County, Florida, No. CR92-266, of one count of sexual
battery (see ECF No. 12 at 10-13). On September 18,
1992, the court sentenced Petitioner as a habitual violent
felony offender to thirty (30) years in prison, with a
15-year minimum mandatory and pre-sentence jail credit of 209
April 30, 2012, Petitioner was released from FDOC custody on
conditional release supervision, administered by the FCOR,
with his supervision to expire on February 14, 2022 (ECF No.
13, Ex. 5, attached Ex. B).
April 8, 2016, the FCOR issued a warrant for Petitioner's
arrest for violating the terms of his conditional release,
specifically, Condition 7 of the Certificate of Conditional
Release and Terms and Conditions of Supervision, which
required Petitioner to obey all laws (ECF No. 13, Ex. 5,
attached Exs. C, D). The alleged violation was based upon
Petitioner's leaving the scene of an accident causing
property damage in Floyd County, Georgia on October 5, 2015,
for which he was charged with misdemeanor hit and run
(see id.). On June 10, 2016, Petitioner waived his
right to a violation hearing and his right to be represented
by an attorney (see ECF No. 13, Ex. 5, attached Exs.
D, F). On July 13, 2016, the FCOR revoked Petitioner's
conditional release supervision, effective May 4, 2016, and
ordered him returned to FDOC custody to serve the remainder
of his sentence (ECF No. 13, Ex. 5, attached Ex. E; ECF No.
12, attached Affidavit of Stacey Haynes). The FCOR
considered, but denied, an award of credit for the time
Petitioner was out of FDOC custody on conditional release
supervision (from April 30, 2010, to May 4, 2016) (ECF No.
13, Ex. 5, attached Ex. E).
October 25, 2016, Petitioner filed a petition for writ of
habeas corpus in the Circuit Court in and for Santa Rosa
County, Florida (the county where Petitioner was
incarcerated), where the court assigned No. 2016-CA-844 (ECF
No. 13, Ex. 1). Petitioner filed a motion for appointment of
“appellate” counsel (ECF No. 13, Ex. 2). The FCOR
filed a Response to the state habeas petition (ECF No. 13,
Ex. 5). Petitioner filed a Reply and a Supplemental Reply
(ECF No. 13, Exs. 6, 11). On March 3, 2017, the state circuit
court denied the habeas petition and denied all pending
motions as moot (ECF No. 13, Ex. 11). Petitioner
“appealed” the decision to the Florida First
District Court of Appeal (“First DCA”), No.
1D17-1089 (ECF No. 13, Ex. 12). Petitioner filed a motion for
appointment of counsel (see ECF No. 13, Ex. 14). The
First DCA noted that the order which Petitioner sought to
appeal appeared to be reviewable by petition for writ of
certiorari rather than by appeal, and directed Petitioner to
file a petition for writ of certiorari (see id.).
The court also denied Petitioner's motion for appointment
of counsel (see id.). Petitioner filed a petition
for writ of certiorari on May 15, 2017 (ECF No. 13, Ex. 15).
The First DCA denied the petition per curiam without written
opinion on October 19, 2017 (ECF No. 13, Ex. 20). Freeman
v. Fla. Comm'n on Offender Review, 236 So.3d 341
(Fla. 1st DCA 2017) (Table). The mandate issued November 16,
2017 (see id.).
filed the instant federal habeas action on January 8, 2018
(ECF No. 1).
STANDARD OF REVIEW
courts may grant habeas corpus relief for persons in state
custody pursuant to 28 U.S.C. § 2254. Section 2254(d)
provides, in relevant part:
(d) An application for a writ of habeas
corpus on behalf of a person in custody pursuant to the
judgment of a State court shall not be granted with respect
to any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim-
(1) resulted in a decision that was contrary
to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court
of the United States; or
(2) resulted in a decision that was based on
an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
28 U.S.C. § 2254(d).
United States Supreme Court explained the framework for
§ 2254 review in Williams v. Taylor, 529 U.S.
362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). The appropriate
test was described by Justice O'Connor as follows:
Under the “contrary to” clause, a federal habeas
court may grant the writ if the state court arrives at a
conclusion opposite to that reached by this court on a
question of law or if the state court decides a case
differently than this Court has on a set of materially
indistinguishable facts. Under the “unreasonable
application” clause, a federal habeas court may grant
the writ if the state court identifies the correct governing
legal principle from this Court's decisions but
unreasonably applies that principle to the facts of the
Id., 529 U.S. at 412-13 (O'Connor, J.,
the Williams framework, on any issue presented in a
federal habeas petition upon which there has been an
adjudication on the merits in a state court proceeding, the
federal court must first ascertain the “clearly
established Federal law, ” namely, “the governing
legal principle or principles set forth by the Supreme Court
at the time the state court render[ed] its decision.”
Lockyer v. Andrade, 538 U.S. 63, 71-72, 123 S.Ct.
1166, 155 L.Ed.2d 144 (2003). The law is “clearly
established” only when a Supreme Court holding at the
time of the state court decision embodies the legal principle
at issue. See Thaler v. Haynes, 559 U.S. 43, 47, 130
S.Ct. 1171, 175 L.Ed.2d 1003 (2010); Woods v.
Donald, ___U.S. ___, 135 S.Ct. 1372, 1376, 191 L.Ed.2d
464 (2015) (“We have explained that clearly established
Federal law for purposes of § 2254(d)(1) includes only
the holdings, as opposed to the dicta, of this Court's
decisions.” (internal quotation marks and citation
identifying the governing legal principle(s), the federal
court determines whether the state court adjudication is
contrary to the clearly established Supreme Court case law.
The adjudication is not contrary to Supreme Court precedent
merely because it fails to cite to that precedent. Rather,
the adjudication is “contrary” only if either the
reasoning or the result contradicts the relevant Supreme
Court holdings. Early v. Packer, 537 U.S. 3, 8, 123
S.Ct. 362, 154 L.Ed.2d 263 (2002) (“Avoiding th[e]
pitfalls [of § 2254(d)(1)] does not require citation to
our cases-indeed, it does not even require awareness of our
cases, so long as neither the reasoning nor the result of the
state-court decision contradicts them.”). Where there
is no Supreme Court precedent on point, the state court's
conclusion cannot be contrary to clearly established federal
law. See Woods, 135 S.Ct. at 1377 (holding, as to
claim that counsel was per se ineffective in being absent
from the courtroom for ten minutes during testimony
concerning other defendants: “Because none of our cases
confront the specific question presented by this case, the
state court's decision could not be contrary to any
holding from this Court.” (internal quotation marks and
citation omitted)). If the state court decision is contrary
to clearly established federal law, the federal habeas court
must independently consider the merits of the
petitioner's claim. See Panetti v. Quarterman,
551 U.S. 930, 954, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007).
“contrary to” clause is not satisfied, the
federal habeas court next determines whether the state court
“unreasonably applied” the governing legal
principles set forth in the Supreme Court's holdings. The
federal court defers to the state court's reasoning
unless the state court's application of the legal
principle(s) was “objectively unreasonable” in
light of the record before the state court.
Williams, 529 U.S. at 409; see Holland v.
Jackson, 542 U.S. 649, 652, 124 S.Ct. 2736, 159 L.Ed.2d
683 (2004) (per curiam). In applying this standard, the
Supreme Court has emphasized:
When reviewing state criminal convictions on collateral
review, federal judges are required to afford state courts
due respect by overturning their decisions only when there
could be no reasonable dispute that they were wrong. Federal
habeas review thus exists as “a guard against extreme
malfunctions in the state criminal justice systems, not a
substitute for ordinary error correction through
appeal.” Harrington, supra, at
102-103, 131 S.Ct. 770 (internal quotation marks omitted).
Woods, 135 S.Ct. at 1376 (quoting Harrington v.
Richter, 562 U.S. 86, 131 S.Ct. 770, 178 L.Ed.2d 624
2254(d) also allows federal habeas relief for a claim
adjudicated on the merits in state court where that
adjudication “resulted in a decision that was based on
an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” 28
U.S.C. § 2254(d)(2). The “unreasonable
determination of the facts” standard is implicated only
to the extent the validity of the state court's ultimate
conclusion is premised on an unreasonable fact finding.
See Gill v. Mecusker, 633 F.3d 1272, 1292 (11th Cir.
2011). As with the “unreasonable application”
clause, the federal court applies an objective test.
Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct.
1029, 154 L.Ed.2d 931 (2003) (holding that a state court
decision based on a factual determination “will not be
overturned on factual grounds unless objectively unreasonable
in light of the evidence presented in the state court
proceeding.”). Federal courts “may not
characterize . . . state-court factual determinations as
unreasonable merely because we would have reached a different
conclusion in the first instance.” Brumfield v.
Cain, ___U.S. ___, 135 S.Ct. 2269, 2277, 192 L.Ed.2d 356
(2015) (quotation marks omitted).
performing review under § 2254(d), the federal court
presumes that all factual determinations made by the state
court are correct. 28 U.S.C. § 2254(e)(1). The
petitioner bears “the burden of rebutting the
presumption of correctness by clear and convincing
the federal habeas court finds that the petitioner satisfied
§ 2254(d), does the court take the final step of
conducting an independent review of the merits of the
petitioner's claims. See Panetti, 551 U.S. at
954. Even then, the writ will not issue unless the petitioner
shows that he is in custody “in violation of the
Constitution or laws and treaties of the United
States.” 28 U.S.C. § 2254(a). “If this
standard is difficult to meet, that is because it was meant
to be.” Richter, 562 U.S. at 102.
this framework, the court will review Petitioner's claim.
presents one claim in his § 2254 petition:
Ground One: “Petitioner is illegally detained
without due process of law and was denied counsel at trial and
(ECF No. 1 at 5). Petitioner's claim has several
sub-claims, including an ADA claim, a substantive due
process/sufficiency of the evidence claim under the Fifth and
Fourteenth Amendments, a procedural due process claim under
the Fifth and Fourteenth Amendments, and a right-to-counsel
claim under the Sixth and Fourteenth Amendments (id.
at 5-9). The court will address each sub-claim in turn.
claims that the revocation violated his rights under the
Americans with Disabilities Act (“ADA”) (ECF No.
1 at 9). The FCOR contends Petitioner's ADA claim is
unexhausted and without merit (ECF No. 13 at 4-5, 6-7).
habeas petition is the appropriate vehicle to bring
challenges to the validity of a conviction and sentence.
Petitioner's claim that the FCOR discriminated against
him during the revocation proceeding because of his physical,
mental, and intellectual disabilities is properly raised and
remedied through an independent civil cause of action, not a
habeas proceeding. See, e.g., Gorrell v.
Hastings, 541 Fed.Appx. 943, 945 (11th Cir. 2013)
(unpublished but recognized as persuasive authority)
(inmate's challenge to disciplinary proceeding, which
resulted in loss of good-conduct time, on the ground that
prison officials unlawfully took disciplinary action against
him on the basis of his disability, in violation of the ADA,
was not properly raised in habeas corpus action).
Petitioner did not exhaust an ADA claim in the state courts.
It is a long-standing prerequisite to the filing of a federal
habeas corpus petition that the petitioner exhaust available
state court remedies, 28 U.S.C. § 2254(b)(1),
thereby giving the State the “‘opportunity to
pass upon and correct' alleged violations of its
prisoners' federal rights.” Duncan v.
Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 130 L.Ed.2d 865
(1995) (quoting Picard v. Connor, 404 U.S. 270, 275,
92 S.Ct. 509, 30 L.Ed.2d 438 (1971) (citation omitted)). To
satisfy the exhaustion requirement, the petitioner must
“fairly present” his claim in each appropriate
state court, alerting that court to the federal nature of the
claim. Duncan, 513 U.S. at 365-66;
O'Sullivan v. Boerckel, 526 U.S. 838, 845, 119
S.Ct. 1728, 144 L.Ed.2d 1 (1999); Picard, 404 U.S.
issue that was not properly presented to the state court and
which can no longer be litigated under state procedural rules
is considered procedurally defaulted, that is, procedurally
barred from federal review. See Bailey v. Nagle, 172
F.3d 1299, 1302-03 (11th Cir. 1999). Under such
circumstances, the federal court must determine whether any
future attempt to exhaust state remedies would be futile
under the state's procedural default doctrine.
Id. at 1303.
Petitioner asserted an ADA claim in his state habeas petition
(see ECF No. 13, Ex. 1 at 11). However, he did not
present the claim to the First DCA in his petition for
certiorari (see ECF No. 13, Ex. 15). Petitioner may
not seek a second review of the circuit court's order
denying his state habeas petition. Therefore,
Petitioner's ADA claim is unexhausted and procedurally
overcome a procedural default, the petitioner must show cause
for the default and prejudice resulting therefrom, or that
the federal court's failure to reach the merits of the
claim would result in a fundamental miscarriage of justice.
Tower v. Phillips, 7 F.3d 206, 210 (11th Cir. 1993);
Parker v. Dugger, 876 F.2d 1470 (11th Cir. 1990),
rev'd on other grounds, 498 U.S. 308, 111 S.Ct.
731, 112 L.Ed.2d 812 (1991). “For cause to exist, an
external impediment, whether it be governmental interference
or the reasonable unavailability of the factual basis for the
claim, must have prevented petitioner from raising the
claim.” McCleskey v. Zant, 499 U.S. 467, 497,
111 S.Ct. 1454, 113 L.Ed.2d 517 (1991) (quoting Murray v.
Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d
Petitioner's reply, he appears to argue that Investigator
Braxton caused any procedural default, because Braxton
“made the presenting of the claims almost
impossible” by interfering with Petitioner's
constitutional right to counsel (ECF No. 26 at 7-8).
Petitioner's “cause” argument fails, because
Petitioner presented his ADA claim to the state circuit court
(in his state habeas petition) after Investigator
Braxton's alleged interference with Petitioner's
right to counsel. Since Braxton's conduct obviously did
not interfere with Petitioner's presenting his ADA claim
to the state circuit court, and Petitioner does not allege
any intervening conduct between the state circuit court
proceedings and the review proceeding in the First DCA (where
the procedural default occurred), Petitioner cannot show that
Braxton caused Petitioner's failure to present the ADA
claim to the First DCA.
failure to complete one round of state court review of his
ADA claim, and Petitioner's failure to show he is
entitled to federal review of his ADA claim through any
recognized exception to the procedural bar, renders his claim
procedurally barred in this federal habeas proceeding.
Sufficiency of the Evidence/Substantive Due Process
alleges the Florida statutes governing conditional release
supervision provide for the revocation of conditional release
upon a releasee's arrest for a felony, not a misdemeanor,
see Florida Statutes §§ 947.1405, 947.141,
947.146(10) (ECF No. 1 at 5-6). Petitioner alleges he was
arrested for allegedly committing a misdemeanor offense in
Georgia (id.). Petitioner contends his arrest for a
misdemeanor offense was not a sufficient basis for the
FCOR's revocation decision under Florida's statutory
provisions governing the Conditional Release program
(id. at 5).
contends this is a purely state law issue which is not
cognizable as a basis for federal habeas relief (ECF No. 13
Petitioner's state habeas petition, he argued that his
arrest for a misdemeanor did not constitute a valid basis to
revoke his conditional release, because Florida Statutes
§ 947.141 authorized the FCOR to revoke conditional
release supervision upon the releasee's arrest on only a
felony charge (see ECF No. 13, Ex. 1 at 8).
Petitioner admitted he was charged with a misdemeanor offense
of leaving the scene of an accident on October 5, 2015; that
he was arrested for the charge and bonded out the next day;
and that a jury trial was scheduled in the State of Georgia,
County of Floyd, No. 16CR009998-JFL001, on September 9, 2016
(see ECF No. 13, Ex. 1 and attached Ex. E at 8-9).
Petitioner alleged he had not admitted guilt to the charge,
and that he maintained his innocence (see Id. at
the FCOR's response to the state habeas petition, the
FCOR filed a copy of the Certificate of Conditional Release
and Terms and Conditions of Supervision provides, amended on
February 26, 2014 (prior to the conduct which formed the
basis for the revocation) (ECF No. 13, Ex. 5, attached
Exhibit B). According to the Certificate, Condition 7