Robinson v. Florida Parole Commission

Filing 29

OPINION AND ORDER denying 1 Petition for writ of habeas corpus for the reasons set forth herein. The Clerk shall enter judgment accordingly and close the file. A certificate of appealability and leave to appeal in forma pauperis are denied. Signed by Judge John E. Steele on 8/15/2011. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
DANNY ROBINSON,
Petitioner,
vs.

Case No.

2:09-cv-379-FtM-29SPC

FLORIDA PAROLE COMMISSION,
Respondent.
___________________________________
OPINION AND ORDER
I. Status
This matter comes before the Court upon the pro se Petition
for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. #1,
“Petition”), filed by Petitioner Danny Robinson (“Petitioner” or
“Robinson”).

The Petition challenges Robinson's revocation of

Conditional Release1 supervision by the Florida Parole Commission
(“Respondent” or “FPC”), on August 8, 2007, for which Petitioner
was sentenced to an eight-year term of imprisonment.
1.

Petition at

The Petition raises the following four grounds for relief:
(1) Robinson's due process rights were violated because
the FPC applied additional terms and conditions upon
Robinson after he was released. (Petition at 5)

“Conditional Release . . . is not an early release program.
Conditional Release is an extra post-prison probation type
program.” Evans v. Singletary, 737 So. 2d 505 (Fla. 1999)(emphasis
in original). “[I]nstead of going free as other offenders would do
. . . these offenders are placed on supervision for the amount of
time equal to the gain time they have accrued. If they violate
their supervision, gain time is forfeited and the inmate is
returned to prison to continue serving the sentence(s).” Id.
1

(2) Robinson's right to freedom of religion was violated
because the FPC discriminated against religious activity
or prohibited conduct undertaken for religious purposes.
(Petition at 6)
(3) The State erred by not allowing Robinson
supplemental revocation hearing. (Petition at 8)

a

(4) Robinson's due process rights were violated because
the FPC parole examiner did not make factual findings
that the violations were willful. (Petition at 9-10)
Respondent

filed

a

response

to

the

Petition

Response) with exhibits in support (Resp. Exhs. A-HH).

(Doc.

#17,

Petitioner

filed a reply to the Response (Doc. #22) with exhibits in support
(Pet.

Exhs.

A-E).

Upon

consideration

of

the

Petition,

the

Response, the Reply, and the State-court record, the Court finds
that the Petition is due to be denied.2
II. Relevant Procedural History
Respondent concedes that the Petition is timely filed and the
grounds asserted were exhausted.

Response at 10-11.

Respondent

asserts that the four grounds raised in the Petition, although
clothed in terms of federal law, raise only issues of State law;
and, thus are barred from habeas review.

Id. at 12.

In the

alternative, the Respondent argues that, based upon the record, the
Petition should be denied on its merits.

Id. at 13-19.

The Court finds that an evidentiary hearing is not necessary
because it can resolve the Petition on the basis of the record.
Rule 8, Rules Governing Habeas Corpus Petitioner Under Section
2254.
2

-2-

A.

Conviction and Revocation

On August 23, 1999, Robinson was convicted of Robbery and
Aggravated Assault after a jury returned a verdict of guilty in the
Twentieth Judicial Circuit Court, Hendry County (case no. 93-221).
Resp.

Exhs.

A.

On

September

30,

2004,

Petitioner

signed

a

“Temporary” Certificate of Conditional Release. Resp. Exhs. B. On
October 1, 2004, Robinson was released on conditional release, and
on

December

2,

2004,

Robinson

signed

the

“Certificate

of

Conditional Release” that set forth the “Terms and Conditions of
Supervision.”

Resp. Exhs. 4 (“Certificate”).

The Certificate

contained the following “Special” condition of release:
YOU SHALL HAVE A MANDATORY CURFEW WHERE YOU SHALL BE
CONFINED TO YOUR RESIDENCE DURING THE HOURS FROM 7 PM TO
7 AM, EXCEPT FOR WORK TREATMENT PURPOSES AS AUTHORIZED BY
YOUR CONDITIONAL RELEASE SUPERVISOR.
Id. at 64 (uppercase font in original).

On March 17, 2005, the FPC

issued a warrant to retake Robinson based upon an alleged violation
of the aforementioned Special condition - - violating the mandatory
curfew.

Resp. Exhs. D.

In particular, the Warrant for Retaking

Conditional Releasee stated that “on March 14, 2005, at 8:45 p.m.,
Robinson was away from his approved residence.”

Id. at 68.

On March 23, 2005, Robinson was interviewed and executed a
revocation hearing waiver. Resp. Exhs. E.

The hearing examiner,

relying upon the evidence of the March 15, 2005 violation report,
found

Robinson

guilty

of

violating

curfew,

and

restoration on conditional release on March 24, 2005.
-3-

recommended
Id. at 72.

On April 20, 2005, the FPC reinstated Robinson on conditional
release.

Resp.

Exhs. F.

On June 18, 2007, the FPC issued a second warrant to retake
Robinson.

Resp. Exhs. G.

Again, Robinson was alleged to have

violated the condition of curfew when, on June 15, 2007, at 7:37
p.m., Robinson was not confined in his approved residence.

Id. at

79.
According to reports received from the Collier County
Sheriff's Office, on June 15, 2007, Deputy Hinchcliffe
responded to 911 New Market Rd. Immokalee Florida in
reference to a disturbance. Upon arrival at 07:37 PM
Deputy Hinchcliffe made contact with [Robinson]. Contact
was made with [Richard Goguen, Robinson's parole
officer], who instructed the deputy to arrest [Robinson]
for Violation of Condition[al] Release due to curfew
violation.
Id. at 81.
On June 21, 2007, Robinson was interviewed and waived his
revocation violation hearing. The hearing examiner, relying on the
June

18,

2007

violation

report,

found

Robinson

guilty

and

recommended revocation of conditional release on June 25, 2007.
Resp. Exhs. H. Following the June 25, 2007 hearing, the Commission
received a letter, postmarked June 28, 2007, from Robinson stating
in pertinent part that:
I stop [sic] to pickup other worshipers on my way to
church service no crimes commit [sic] - a case of being
at the wrong place - at the wrong time, on Friday night
June 15, 2006 at 7:37 p.m. on my way to church.
Resp. Exhs. I.

The FPC revoked Robinson's conditional release on

August 8, 2007, effective June 15, 2007.
-4-

Resp. Exhs. J.

B.
1.

State Procedural History
Writ of Mandamus

On September 25, 2007, Robinson filed a notice of appeal with
the FPC, and filed a petition for writ of mandamus in the Second
Judicial Circuit Court, Leon County, Florida.

Resp.

Exhs. K.

In

his petition, Robinson contended that: (1) his supervising officer,
Richard Goguen, had authorized Robinson to attend church services
on Tuesday, Friday, and Sunday evenings from 8:00 p.m. until 10:30
p.m.; (2) that the revocation denied Robinson his “Constitutional
Right to Religious Freedom”; and, (3) that the revocation violated
“due process” and the “ex post facto law . . . prohibited by the
U.S. Constitution” because his October 1, 2004 conditional release
plan did not include a curfew provision.

Id. at 1-6.

The circuit court directed the FPC to show cause why the
petition should not be granted.

Resp. Exhs. L.

The FPC filed a

“Response to Court's Order to Show Cause and Motion for Remand” on
January 16, 2008.

Resp. Exhs. M.

The FPC construed the petition

as alleging that the “Commission erred in failing to make factual
finding that [Robinson's] violation was willful and substantial”
and sought remand “for clarification by the Hearing Examiner as to
whether [Robinson's] violation was willful and substantial.”
at 33.

Id.

The circuit court granted remand for a determination of

whether Robinson's conduct constituted a “willful violation of a
substantial condition.”

Resp. Exhs. N at 1.

-5-

On February 28, 2008, the Hearing Examiner reviewed the record
and determined that the violation was willful, stating:
In regards to violating Condition 19, the inmate was not
confined to his approved residence between the hours of
7:00 p.m. and 7:00 a.m. on June 15, 2007. I find the
violation to be willful and substantial based on the
Department of Corrections Violation Report dated June 18,
2007, prepared by Correctional Probation Officer Richard
Goguen. Per the violation report, the inmate was not at
his approved residence but was at 911 West New Market
Road, Immokalee, Florida, on June 15, 2007, at
approximately 8:05 p.m., and did not have the permission
of Correctional Probation Officer Richard Goguen, to be
at this residence after 7:00 p.m. Correctional Probation
Officer Richard Goguen was advised that the inmate was at
this location by Deputy Hinchcliffe of the Collier County
Sheriff's Office who had responded to the residence at
7:37 p.m. in reference to a disturbance. Correctional
Probation Officer Richard Goguen instructed the deputy to
arrest the inmate on the curfew violation. In addition
the inmate has a history of violating his curfew, and
based on the prior curfew violation, which also occurred
under the supervision of Correctional Probation Officer
Richard Goguen, the inmate is fully aware of the rules
and consequences for not complying with his curfew.
Resp. Exhs. O at 151.
Hearing

Examiner's

On March 12, 2008, the FPC adopted the

finding

and

reaffirmed

the

revocation

of

Petitioner's supervision. Id. at 154.
Subsequently, the FPC filed a “Notice of Compliance with
Remand and Response” on March 21, 2008.
O.

See generally Resp. Exhs.

Robinson filed a reply to the FPC's response with exhibits.

Resp. Exhs. P.3

On June 5, 2008, the Leon County circuit court,

According to the Respondent, “the record indicates that the
Petitioner next filed a Motion for Leave for Supplemental Pleading
on April 25, 2008" but the FPC was not provided with a copy of the
pleading.
Response at 5, n. 3. Nonetheless, the circuit court
denied Petitioner's motion to supplement the record. Resp. Exh. Q
3

(continued...)
-6-

acting

in

its

appellate

capacity,4

Petitioner relief. Resp. Exhs. Q.

entered

an

order

denying

In pertinent part, the circuit

court held:
The petitioner challenges the revocation of his
conditional release for violation of condition 19, a
mandatory curfew, on several grounds. He alleges that
the curfew condition was illegal and invalid because 1)
his offense did not qualify him for a curfew condition;
2) the curfew condition was not imposed until two months
after his release on conditional release, and thus the
condition was an illegal ex post facto punishment; and 3)
the curfew illegally interfered with petitioner's
exercise of his religion because his violation of the
curfew occurred while he was attending to church
business. The petitioner further argues that he should
be reinstated to conditional release because he committed
no crimes while on conditional release.
The Commission had statutory authority to impose the
special
condition
of
the
curfew
under
section
947.1405(6), Florida Statutes.
The special condition
curfew was not dependent upon the nature of petitioner's
offense nor is the date of his offense an issue. The
Commission was authorized to impose “any special
conditions it considers warranted from its review of the
release plan and recommendation.”
§ 47.1405(6), Fla.
Stat. Section 947.1405(6) has been in effect since 1988,
and so it was in effect in 1993 when the petitioner
committed the crimes for which he is currently
incarcerated.
The specification of the special curfew condition shortly
after the petitioner's release on conditional release is
not an ex post facto or due process violation.
The
petitioner was notified prior to his conditional release
that the Commission might impose additional conditions
and that he would be informed of such special conditions.

3

(...continued)

at 1.
See Rule 9.100(f), Florida Rules of Appellate Procedure, and
Sheley v. Florida Parole Comm’n, 703 So. 2d 1202 (Fla. 1st DCA
1997).
4

-7-

Commission's
Response
filed
1/16/2008,
Specifically the petitioner was informed:

Ex.

B.

In addition to the standard conditions of
Conditional release enumerated on pages 2 and
3 of this notification, the Commission may
also establish certain special conditions of
release. All the terms and conditions of your
conditional
release,
both
standard
and
special, will be contained in your certificate
of release and will be forwarded to your
conditional
release
supervisor who will
instruct you accordingly.
Id. Certificate of Conditional Release & Terms &
conditions of Supervision dated and signed by petitioner
on 9/30/2004. Accordingly, the petitioner knew that
additional special conditions were forthcoming upon his
release on October 1, 2004. The petitioner was informed
of the curfew special condition and acknowledged the
condition on December 2, 2004.
Commission's Response
filed 1/16/08, Ex. B.
Even if the notice signed by the petitioner on December
2, 2004 left any doubt about the curfew condition in
petitioner's mind, the petitioner violated the curfew
condition on March 14, 2005 and he was found by the
Commission to have violated the condition.
The
Commission determined that petitioner's conditional
release should not be revoked for that violation, but
this incident certainly brought the curfew condition and
the possibility of its enforcement to petitioner's
attention.
Commission's Ex. F to Response filed
1/16/2008 - Commission Order entered 4/20/2005. At this
point, the petitioner cannot credibly assert that he was
unaware of the curfew condition or that he was in any way
prejudiced by the specification of this condition two
months after his initial conditional release. The timing
of the Commission's specification of the curfew condition
could have had no effect on the petitioner's second
violation of the curfew condition on June 15, 2007.
The petitioner's argument that the curfew condition was
an invalid restriction on his exercise of his religion
because he was conducting church business after the
curfew hours is simply ridiculous.
Even if the
supervising officer had given the petitioner permission
to attend church services beyond the curfew hours, which
-8-

is a question of fact not determined by the hearing
officer, the petitioner does not dispute that he was not
at a church service. The petitioner was at a residence
at 8:05 p.m. when the supervising officer was contacted
by a police officer who had arrived at the residence in
response to a disturbance call. Commission's Ex. G to
Response filed 1/16/2008. Permission to attend church
services does not extend to permission to collect church
funds and engage in an altercation with the church
bookkeeper at a separate location. The Florida Supreme
Court has held that “a substantial burden on the free
exercise of religion is one that either compels the
religious adherent to engage in conduct that his religion
forbids or forbids him to engage in conduct that his
religion requires.” Warner v. City of Boca Raton, 887
So. 2d 1023, 1033 (Fla. 2004). The petitioner makes no
allegation that the curfew condition compelled him to
engage in conduct his religion forbids or forbade him to
engage in conduct his religion required.
He simply
opposes the restrictions on his schedule and activities
resulting from the curfew and does not wish to comply
with the condition.
Finally, the court finds that the petitioner's crime-free
record while on conditional release does not preclude
revocation for violation of the curfew condition by the
Commission. The petitioner did not contest the charge
that he was neither at home or at the church building at
8:05 p.m. on the night of June 15, 2007.
Letter
submitted to Commission from Petitioner, Ex. I to
Commission's Response.
The petitioner waived his
violation of conditional release hearing, and the
revocation was based upon the Department of Corrections'
Violation Report dated June 18, 2007 submitted by
Correctional
Probation
Officer
Richard
Goguen.
Commission's Ex. J to Response. The court finds that the
petitioner's admission of the facts supporting the curfew
violation is sufficient factual support for the
Commission's revocation. Russell v. Florida Parole
Commission, 946 So. 2d 32 (Fla. 1st DCA 2006); Sylvis v.
State, 916 So. 2d 915, 918 (Fla. 5th DCA 2005).
Revocation in this circumstance is not an abuse of
discretion. Lacking an abuse of discretion, this Court
will not re-consider the Commission's action. Tedder v.
Florida Parole Commission, 842 S.2d 1022 (Fla. 1st DCA,
2003).

-9-

Based on Matais v. Florida Parole Commission, 944 S.2d
1182, 1183 (Fla. 1 st DCA 2006), this case was remanded
to the Commission for a factual determination by the
Parole Commission as to whether the curfew violation was
a willful violation of a substantial condition. This was
required even though the petitioner waived his revocation
hearing and admitted the facts of his actions which
constituted the violation. See Johnson v. Florida Parole
Commission, 958 So.2d 1109 (Fla. 1st DCA 2007); Harris v.
Florida Parole Commission, _ So. 2d _, 33 Fla. L. Weekly
D1268, 2008 WL 1968308 (Fla. 1st DCA May 8, 2008). In
response to the Court's Order, the Commission reported to
the court that on February 28,2008, the Parole Examiner
determined that the violation was, in fact, willful. On
March 12, 2008, the Commission adopted the Parole
Examiner's finding and reaffirmed the revocation of
Conditional Release supervision.
The Petitioner has not established either that the
Commission abused its discretion or failed to perform a
required ministerial duty.
Id. at 2-6.
Robinson appealed the circuit court's June 5, 2008 order
denying his writ of mandamus and certiorari, Resp. Exhs. R, and the
court directed the FPC to respond.
a response.

Resp. Exhs. V.

Resp. Exhs. U.5

The FPC filed

Robinson filed a “Judicial Notice”

with exhibits, a “Reply” with exhibits, Resp. Exhs. W, and a motion
to supplement Reply.

Resp. Exhs. X.

On October 30, 2008, the

appellate court, issued a per curia opinion, denying Robinson's
petition for writ of certiorari “on the merits.”
Robinson's motion for rehearing was denied.

Resp. Exhs. Y.

Resp. Exhs. Z, AA.

Robinson also filed a petition for writ of certiorari with the
appellate court, Resp. Exhs. S.
The appellate court converted
Robinson appeal into the petition for writ of certiorari. Resp.
Exhs. T.
5

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2.

Petition for Writ of Habeas Corpus

On October 31, 2007, Robinson filed a petition for writ of
habeas corpus in the circuit court for Twentieth Judicial Circuit
Court, Glades County, Florida.

Resp. Exhs. BB.

The State

petition alleged two grounds for relief: (1) the FPC violated
Robinson's due process rights where the violation of conditional
release was not willful or substantial; and (2) the FPC violated
Robinson's ex post facto and due process rights under Florida law
because Robinson was not interviewed within 180 days of his release
for purposes of detailing the conditions of his release. Id. at 3,
5.
The circuit court issued a show cause order to the FPC, and
the FPC moved for dismissal based upon Robinson's prior filing of
his mandamus action with the Second Circuit in Leon County. Resp.
Exhs. CC.

The Twentieth Judicial Circuit rejected the FPC's

argument, and the FPC filed a response on the merits.
DD.

Robinson filed a reply.
On

May

7,

2008,

the

Resp. Exhs.

Resp. Exhs. EE.
Twentieth

Judicial

Robinson's petition for writ of habeas corpus.

Circuit

denied

Resp. Exhs. FF.

The court found that the facts as alleged in the State petition
“are not supported by the evidence below.”

Id.

The court, noting

that Robinson had attached various documents to support his factual
allegations, found that the documents had not been submitted to the
parole board, but were all dated after the date that Robinson's

-11-

conditional release had been revoked.

Id. at 2.

Further, because

the evidence was not submitted to the parole board and because
Robinson had waived his right to a hearing, the court determined
that it could not “consider any evidence attached to [Robinson's]
motion.”

Id.
III.

Robinson

filed

his

Applicable Law
Petition

after

April

24,

1996,

the

effective date of the Antiterrorism and Effective Death Penalty Act
of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (1996).
Consequently, post-AEDPA law governs this action.
Quarterman, 127 S. Ct. 1654, 1664 (2007);

Abdul-Kabir v.

Penry v. Johnson, 532

U.S. 782, 792 (2001); Davis v. Jones, 506 F.3d 1325, 1331, n.9
(11th Cir. 2007). Under AEDPA, the standard of review “is ‘greatly
circumscribed

and

highly

deferential

to

the

state

Crawford v. Head, 311 F.3d 1288, 1295 (11th Cir. 2002).”

courts.’
Stewart

v. Sec’y Dep’t of Corr., 476 F.3d 1193, 1208 (11th Cir. 2007).

See

also Parker v. Sec’y Dep’t of Corr., 331 F.3d 764 (11th Cir. 2003).
AEDPA altered the federal court’s role in reviewing state prisoner
applications in order to “prevent federal habeas 'retrials' and to
ensure that state-court convictions are given effect to the extent
possible under law.”

Bell v. Cone, 535 U.S. 685, 693 (2002).

Further, a federal court only may entertain an application for
a writ of habeas corpus from a state prisoner who claims his
custody violates the “Constitution or the laws or treaties of the

-12-

United States.”

Wilson v. Corcoran, 562 U.S. ___, 131 S. Ct. 13,

15 (2010)(per curia)(quoting 28 U.S.C. § 2254(a)).

“The writ of

habeas corpus was not enacted to enforce State-created rights.”
Cabberiza v. Moore, 217 F.3d 1329, 1333 (11th Cir. 2000)(citation
and quotation marks omitted); Estelle v. McGuire, 502 U.S. 62, 68
(1991); Carrizales v. Wainwright, 699 F.2d 1053, 1055 (11th Cir.
1983).

In particular, “[a] state's interpretation of its own laws

or rules provides no basis for federal habeas corpus relief, since
no question of a constitutional nature is involved.” McCullough v.
Singletary, 967 F.2d 530, 535 (11th Cir. 1992). “Federal courts
entertaining petitions for writs of habeas corpus must follow the
state court's interpretation of a state law absent a constitutional
violation.”

Hunt v. Tucker, 93 F.3d 735, 737 (11th Cir. 1996).

Similarly, a claim that petitioner’s federal rights have been
violated because state officials failed to correctly apply state
law is merely a state law claim “couched in terms” of a federal
claim, and fails to state a claim upon which relief may be granted
by habeas corpus.

Branan v. Booth, 861 F.2d 1507, 1508 (11th Cir.

1989).
Habeas relief may not be granted with respect to a claim
adjudicated on the merits in state court 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
-13-

(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).

See Brown v. Payton, 544 U.S. 133, 141

(2005); Price v. Vincent, 538 U.S. 634, 638-39 (2003).

A state

court’s summary rejection of a claim, even without explanation,
qualifies

as

deference.

an

adjudication

on

the

merits

which

warrants

Ferguson, 527 F.3d at 1146; Wright v. Sec’y Dep’t of

Corr., 278 F.3d 1245, 1253-54 (11th Cir. 2002).

See also Peoples

v. Campbell, 377 F.3d 1208, 1227 (11th Cir. 2004), cert. denied,
545 U.S. 1142 (2005).
IV.

Findings of Fact and Conclusions of Law

“There is no right under the Federal Constitution to be
conditionally released before the expiration of a valid sentence,
and

the

States

prisoners.”

are

under

no

duty

to

offer

parole

to

their

Swarthout v. Cooke, ___ U.S. ___, 131 S. Ct. 859, 862

(Jan. 24, 2011)(citing Greenholtz v. Inmates of Neb. Penal and
Correctional Complex, 442 U.S. 1, 7, (1979)).

“When, however, a

State creates a liberty interest, the Due Process Clause requires
fair procedures for its vindication-and federal courts will review
the application of those constitutionally required procedures.”
Swarthout, 131 S.Ct. at 862.
The following minimum requirements of due process must be
provided in a parole revocation proceeding:
(a) written notice of the claimed violations of parole;
(b) disclosure to the parolee of evidence against him;
(c) opportunity to be heard in person and to present
witnesses and documentary evidence; (d) the right to
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confront and cross-examine adverse witnesses ...; (e) a
‘neutral and detached’ hearing body such as a traditional
parole board, members of which need not be judicial
officers or lawyers; and (f) a written statement by the
factfinders as to the evidence relied on and reasons for
revoking parole.
Morrissey v. Brewer, 408 U.S. 471, 488–89 (1972).

However “a mere

error of state law is not a denial of due process.”

Swarthout v.

Cook, 131 S.Ct. at 863 (quoting Engle v. Isaac, 456 U.S. 107, 121
n. 21 (1982)).
Ground 1 Presents An Issue of State Law Only
In Ground 1, Petitioner argues that his Fifth and Fourteenth
Amendment

rights

were

violated

because

the

FPC

“applied

new

conditions 63 days after Petitioner's release.” Petition at 5. In
support, Petitioner refers the Court to “F.S. 947.1405" and the
“Fla. Admin. Code.”

Id.

Essentially, Petitioner is challenging the authority of the
FPC to impose conditions on his release.
establishes the authority of the FPC.

Fla. Stat. § 947.1405

Thus, Ground 1, although

couched in terms of a federal due process violation, raises only an
issue of State law.

Consequently, Ground 1 does not raise a

federal issue cognizable on habeas review.
Grounds 1, 2, 3 and 4 are Without Merit
Alternatively, to the extent that Petitioner is attempting to
assert an ex post facto violation, such claim is wholly without
merit.

As noted by the circuit court, Florida's Conditional

Release Statute, Fla. Stat. § 947.1405 was enacted well before
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Petitioner committed the underlying offenses for which he was
convicted.6
In Ground 2, Petitioner submits that the special condition
establishing curfew violated his First Amendment Free Exercise
rights. Petition at 6.

Petitioner was found to have violated the

special condition establishing curfew:
You Shall Have a Mandatory Curfew Where You Shall Be
Confined to Your Residence During the Hours from 7 Pm to
7 Am, Except for Work Treatment Purposes as Authorized by
Your Conditional Release Supervisor.
The

Leon

County

circuit

court

found

Amendment “is simply ridiculous.”

that

Petitioner's

Resp. Exhs. Q at 4.

First

The Court

agrees.
The Free Exercise Clause of the First Amendment to the United
States Constitution, which is applied to the States through the
Fourteenth Amendment, see Cantwell v. Connecticut, 310 U.S. 296,
303 (1940), provides:
Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof . . .
.
U.S. Const. Amend. I.

“At a minimum, the protections of the Free

Exercise Clause pertain if the law at issue discriminates against
some or all religious beliefs or regulates or prohibits conduct
Article I, Section 10, of the U.S. Constitution prohibits
states from enacting ex post facto laws. Under the ex post facto
clause a state may not retroactively apply any law that “inflicts
a greater punishment, than the law annexed tot he crime, when
committed.” Calder v. Bull, 3 U.S. 386 (1789). Florida enacted
the Conditional Release Statute in 1988. Petitioner committed the
offenses that resulted in his conviction in 1993.
6

-16-

because it is undertaken for religious reasons.”

Church of Lukumi

Babalu Ave v. City of Hialeah, 508 U.S. 520, 532 (1993).

If a law

is neutral and generally applicable, it does not violate the Free
Exercise Clause, even if the law has an incidental effect on a
religious group or practice.

Id. at 531.

To determine neutrality

and general applicability, the Court looks at the purpose or object
of the law, by viewing its text.

Id. at 532.

Here, the curfew condition is neutral on its face.
there is no First Amendment violation.

Thus,

Further, as noted by the

circuit court, Petitioner was not at church at the time of his
violation.

Thus, the Court finds Petitioner has failed to sustain

his burden under 28 U.S.C. § 2254(d), and Ground 2 as without
merit.
In Ground 3, Petitioner faults the Second Judicial
Court

in

Leon

County

revocation hearing.”

for

not

affording

Petition at 8.

him

“a

Circuit

supplemental

To the extent discernable,

Petitioner contends that the State court erred in failing to afford
him a supplemental hearing at which he could have introduced
additional evidence that was not previously provided to the hearing
examiner or presented to the FPC.

The State's adherence to its

procedural processes as set forth in its own statutes does not
implicate federal due process issues.
1551, 1560 (11th Cir. 1991).

Tejada v. Dugger, 941 F.2d

Nothing in the Florida statutes

entitle

Petitioner to a revocation hearing before the circuit

court.

Indeed, such a right is not mandated or envisioned by
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federal law. See Morrissey v. Brewer, 408 U.S. at 484 (recognizing
that in a parole revocation, federal law requires only “an informal
hearing structured to assure that the finding of a parole violation
will be based on verified facts and that the exercise of discretion
will

ne

informed

behavior.”).

by

an

accurate

knowledge

of

the

parolee's

Consequently, Ground 3 fails to raise a federal

habeas issue.
In Ground 4, Petitioner claims that his due process rights
were violated because the hearing examiner did not determine that
the violation was willful.

Petition at 9-10.

The Court finds the

Ground 4 is without merit as the record amply supports the state
court's

finding

that

Petitioner's

due

process

rights

under

Morrissey, 408 U.S. at 489, were fulfilled.
Here, Petitioner received written notice of the violation.
Petitioner was afforded the opportunity to submit evidence and
produce witnesses, but waived his right to a hearing. Upon remand,
see Resp. Exhs. N at 1, the Hearing Examiner reviewed the record
and provided a written statement that the violation was willful and
substantial.
upon

the

Resp. Exhs. O at 151.

Violation

Report

prepared

The Hearing Examiner relied
by

Petitioner's

Probation

Officer, Richard Goguen. According to Mr. Goguen's Report, on June
15, 2007, at approximately 8:05 p.m., Petitioner was not at his
approved residence but was at 911 West New Market Road, Immokalee,
Florida, and did not have the permission of Mr. Goguen to be at
this residence after 7:00 p.m.

Deputy Hinchcliffe of the Collier
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County Sheriffs s Office, who had responded to a disturbance call
made at 7:37 p.m. from the residence, advised Mr. Goguen that
Petitioner was at the residence.

The Hearing Examiner also relied

upon the fact that Petitioner had a prior curfew violation.
Petitioner was aware of the condition of curfew.

Thus,

The FPC adopted

the Hearing Examiner's finding and reaffirmed the revocation of
Petitioner's supervision. Id. at 154.
Consequently, contrary to Petitioner's assertion, the Hearing
Examiner did determine that Petitioner's violation was willful.
Consequently, Petitioner has failed to show that the State court's
rejection

of

unreasonable

his

due

process

application

of,

claim

federal

was
law,

contrary
or

an

to,

or

an

unreasonable

determination of the facts as presented to the State court.

Thus,

the Court denies Petitioner relief on Ground 2 as without merit.
Therefore, it is now
ORDERED AND ADJUDGED:
1.

The Petition for Writ of Habeas Corpus (Doc. #1) is

DENIED for the reasons set forth herein.
2.

The Clerk of the Court shall enter judgment accordingly;

terminate any pending motions; and, close this file.
CERTIFICATE OF APPEALABILITY AND
LEAVE TO APPEAL IN FORMA PAUPERIS DENIED
IT IS FURTHER ORDERED that Petitioner is not entitled to a
certificate of appealability.

A prisoner seeking to appeal a

district court's final order denying his petition for writ of
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habeas corpus has no absolute entitlement to appeal but must obtain
a certificate of appealability (“COA”).

28 U.S.C. § 2253(c)(1);

Harbison v. Bell, 556 U.S. 180, 129 S. Ct. 1481, 1485 (2009).

“A

[COA] may issue . . . only if the applicant has made a substantial
showing of the denial of a constitutional right.”
2253(c)(2).

28 U.S.C. §

To make such a showing, petitioner “must demonstrate

that reasonable jurists would find the district court’s assessment
of the constitutional claims debatable or wrong,” Tennard v.
Dretke, 542 U.S. 274, 282 (2004) or, that “the issues presented
were

adequate

to

deserve

encouragement

to

proceed

further.”

Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). Petitioner has
not made the requisite showing in these circumstances.
Finally, because Petitioner is not entitled to a certificate
of appealability, he is not entitled to appeal in forma pauperis.
DONE AND ORDERED in Fort Myers, Florida, on this
of August, 2011.

SA: hmk
Copies: All Parties of Record

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day