Gonzalez v. State Of Florida et al

Filing 19

ORDER OF DISMISSAL dismissing Florida Attorney General as a named respondent; dismissing 1 Petition for habeas corpus without prejudice because the Court no longer has jurisdiction to consider it. Alternatively, the case is dismissed without prejudice for petitioner's failure to notify the Court of his current address. The Clerk shall enter judgment accordingly and close the case. Signed by Judge John E. Steele on 4/13/2015. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MARCELINO GONZALEZ,
Petitioner,
v.

Case No: 2:13-cv-267-FtM-29DNF

STATE OF FLORIDA and FLORIDA
ATTORNEY GENERAL,
Respondents. 1
ORDER OF DISMISSAL
This matter is before the Court on a petition for habeas
corpus relief, filed pursuant to 28 U.S.C. § 2254 (Doc. 1, filed
Apr. 8, 2013).

Petitioner, proceeding pro se, asserts that he is

entitled to thirteen years’ credit on his fifteen-year sentence
for trafficking in cocaine. Id. at 4.
argues

that

he

was

mistakenly

Specifically, Petitioner

released

from

Department

of

Corrections (“DOC”) custody before commencement of his sentence
and remained at large for thirteen years prior to recapture. Id.
Petitioner asserts that his sentence continued to run while he was
at liberty, and he is now serving a sentence beyond his original
release date. Id. at 2.

1

When the petitioner is incarcerated and challenges his
present physical confinement “the proper respondent is the warden
of the facility where the prisoner is being held, not the Attorney
General or some other remote supervisory official.” Rumsfeld v.
Padilla, 542 U.S. 426, 436 (2004)(citations omitted). In Florida,
the proper respondent in this action is the Secretary of the
Florida Department of Corrections.
Therefore, the Florida
Attorney General will be dismissed from this action.

Upon review of the record the Court concludes that this case
must be dismissed as moot.

Alternatively, the case is dismissed

due to Petitioner's failure to update his address with the Court.
I.

Background and Procedural History
On June 15, 1989, Petitioner was arrested and charged with

trafficking in a controlled substance in Collier County, Florida
(App.

at

53-54,

281). 2

Petitioner

was

released

on

his

own

recognizance, but did not appear at subsequent hearings, and a
bench warrant was issued for his arrest. Id.

He was arrested on

the bench warrant more than five years later. Id.
On April 23, 1996, Petitioner pleaded guilty to trafficking
in cocaine and received a fifteen-year prison sentence (App. at
53-54, 285).

Prior to being sent to the Florida Department of

Corrections to begin his fifteen-year sentence, Petitioner was
taken

to

Hillsborough

County

to

face

redeliver a hired vehicle (App. at 55).

charges

for

failure

to

He was sentenced to time

served in that case, and Hillsborough County mistakenly released
him on June 6, 1996 due to the Department of Corrections’ failure
to file a detainer (App. at 48, 54, 286).
Thirteen years later, Petitioner was arrested in New York for
using his brother’s Metro Card to ride the subway (App. at 53).

2

Citations to the appendix is to the one filed by Respondents
on October 11, 2013 (Doc. 14-1; Doc. 14-2; Doc. 14-3).
- 2 -

Petitioner was returned to Florida in 2009 and began service of
his fifteen year sentence (App. at 48, 54, 286).
On June 21, 2010, Petitioner filed a pro se petition for writ
of habeas corpus in Liberty County, Florida in which he asserted
that he should receive credit towards his fifteen year sentence
for the thirteen years spent at liberty because it was not his
fault that Hillsborough County Jail mistakenly released him (App.
at 6-20).
The

Department

Institution

to

of

conduct

Corrections
an

“out

asked

time

Liberty

Correctional

investigation”

Petitioner could give his side of the story (App. 27 -29).

so

that

At the

hearing, Petitioner explained that he went to the Hillsborough
County Courthouse for charges of failure to redeliver a hired
vehicle.

The judge gave him credit for time served, and upon his

return to the jail, he was mistakenly released (App. at 51).
Petitioner was asked whether he thought he was supposed to be
released and he replied, “no.” (App. at 51).

He also admitted

that he did not think he had served his sentence, was not entitled
to release, and made no effort to contact the Florida Department
of Corrections to clarify his status. Id. at 53.
The

hearing

officer

determined

that

Petitioner

was

not

entitled to out-time credit because he “was aware of the error and
made

no

attempt

to

notify

the

releasing

Department of Corrections (App. at 51-55).

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authority”

or

the

The DOC agreed and

denied Petitioner credit for the time he spent out of custody after
the mistaken release (App. at 48-50).
On

September

23,

2010,

the

DOC

filed

a

response

to

Petitioner's state habeas petition and argued that, under Florida
law, he was not entitled to credit for time spent out of custody
(App. at 33-77).

Petitioner filed a reply in which he asserted,

for the first time, that he actually had “contacted the Florida
Department of Corrections regarding his status and had been told
no record existed of his sentence.
birth

and

address

where

he

could

He provided his name, date of
be

located.

Moreover,

he

contacted the Collier County Jail with his address for the return
of his GED certificate.” (App. at 117).
The circuit court denied Petitioner's state petition for writ
of habeas corpus (App. at 168-75).

The court recognized that an

offender who is forced to interrupt his sentence due to no fault
on his part may be entitled to credit for time spent out of prison
following the interruption of his sentence. Id. at 171 (citing
White v. Pearlman, 42 F.2d 788, 789 (10th Cir. 1930)).

However,

the court further recognized that “[a]n offender who consents or
otherwise

acquiesces

to

interruption

in

his

sentence

is

not

entitled to credit for time spent out of custody because he is not
without fault.” (App. at 71).

The court concluded:

Unlike the inmate in Pearlman, Petitioner
Gonzalez has provided no indication whatsoever
that he was forced to leave.
Gonzalez knew
he had been lawfully sentenced to serve 15
years and had not yet arrived at prison. He
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freely admitted that he knew he was being
released in error, yet he walked out of the
Hillsborough County jail without objection.
Gonzalez had 13 years to notify an authority
of his mistaken release, but he failed to do
so. Since Petitioner Gonzalez acquiesced to
the interruption of his sentence, he is not
entitled to the relief he seeks.
. . .
A prisoner like Gonzalez, who knows he is
being released in error and offers no
objection to the release, is seeking to
capitalize on the error, and thus cannot
thereafter claim he has been harmed.
(App. at 171-73). Petitioner appealed the circuit court’s ruling,
and the First District Court of Appeal treated his appeal as a
petition for writ of certiorari and ordered a response from the
DOC (App. 190-206).

In his reply to the response, Petitioner

argued, for the first time, that he does not speak English and it
was the language barrier that caused the “fundamental miscarriage
of justice” at issue (App. at 249-63).

On July 11, 2012, the

First District denied the petition on the merits in an unelaborated
decision. Id. at 265.
Petitioner filed the instant petition on April 8, 2013 (Doc.
1).

He makes four general arguments in the petition.

He asserts

that: (1) he is entitled to credit for time served out of custody
because it was not his fault that he was released in error; (2) he
was not at fault for the error because he did not understand
English and was not provided a translator during his conviction
proceedings;

(3)

he

was

entitled

- 5 -

to

a

translator

during

the

Department of Correction’s investigation of the release; and (4)
his constitutional right against self-incrimination was violated
by Florida’s rule that a person released in error must alert
authorities to the erroneous release (Doc. 1 at 4-12).

He seeks

immediate release from DOC custody. Id. at 12.
Respondent filed a response on October 11, 2013, arguing that
Petitioner failed to exhaust the last three claims (Doc. 14 at
16).

Respondent also contends that Petitioner is not entitled to

credit for the thirteen years spent at liberty because he knew he
was on his way to prison to serve a 15-year sentence, and he knew
that the Hillsborough County authorities mistakenly released him.
Id. at 29.
On October 28, 2013, Petitioner asked for an extension of
time to reply to the response (Doc. 15).

Petitioner noted that

he was due to be released from the DOC on November 3, 2013, and
needed an extension of time to file a reply in order to find an
attorney and to “[adjust] to society.” Id. at 2.

Petitioner

provided a Brooklyn, New York address as his residence after
November 3, 2013. Id.

Despite being granted an extension of time

to file a reply, none was filed (Doc. 16).
On November 3, 2013, Petitioner notified the Court that he
had been released from prison, but had been taken into Immigration
and Customs Enforcement (“ICE”) custody and was being held at the
Wakulla

County

Jail

in

Crawfordville,

Florida

(Doc.

17).

Petitioner filed no other changes of address with this Court
- 6 -

despite orders from this Court on April 9, 2013 and June 27, 2013
requiring him to keep the court apprised of his current address at
all times (Doc. 4 at 2; Doc. 10 at 4).

On June 27, 2013, Petitioner

was cautioned that his failure to update his address with the Court
could result in the dismissal of this action (Doc. 10 at 4).
On March 13, 2015, this Court ordered Petitioner to show cause
why the instant petition should not be dismissed as moot (Doc.
18). 3

In the order, the Court noted that Petitioner challenged

only his continued detention, and did not challenge his underlying
conviction. Id.

In an abundance of caution, the Clerk mailed the

order to show cause to both the Wakulla County Jail address and
the New York address previously provided by Petitioner on October
28, 2013.

On March 19, 2015, the Wakulla County Jail returned the

order with a note that Petitioner was no longer being held there.
The order sent to the New York address has not been returned to
the Court.

Petitioner did not respond to the order to show cause

and has still not filed an updated address.

A search of the

Florida DOC website indicates that Petitioner was released from
their custody on November 3, 2013. 4

3

Although neither party has urged that Petitioner's release
from DOC custody has rendered this case moot, “resolution of the
question is essential [if this court is] to function within [its]
constitutional sphere of authority.” North Carolina v. Rice, 404
U.S. 244, 246 (1971); see discussion infra Part II (Discussion).
4

See http://www.dc.state.fl.us/InmateReleases
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II.

Discussion
A.

This case is subject to dismissal because the Court has
no jurisdiction to consider it

Article III, § 2 of the United States Constitution requires
the existence of a case or controversy through all stages of
federal judicial proceedings. This means that, throughout the
litigation, the petitioner “must have suffered, or be threatened
with, an actual injury traceable to the defendant and likely to be
redressed

by

a

favorable

judicial

decision[.]”

Lewis

v.

Continental Bank Corp., 494 U.S. 472, 477 (1990); Preiser v.
Newkirk, 422 U.S. 395, 401 (1975).
power

to

decide

questions

that

A federal court lacks the

cannot

affect

the

rights

of

litigants before it. Powell v. McCormack, 395 U.S. 486, 496 (1969)
(“[A] case is moot when the issues presented are no longer ‘live’
or

the

parties

lack

a

legally

cognizable

interest

in

the

outcome.”); Soliman v. United States ex rel. INS, 296 F.3d 1237,
1242 (11th Cir. 2002) (“[A] case is moot when it no longer presents
a live controversy with respect to which the court can give
meaningful relief.”).

A case that is moot must be dismissed for

lack of jurisdiction. Id.
In the habeas context, a prisoner's “challenge to the validity
of

his

conviction

always

satisfies

the

case-or-controversy

requirement, because the incarceration (or the restriction imposed
by the terms of the parole) constitutes a concrete injury, caused
by

the

conviction

and

redressable

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by

invalidation

of

the

conviction.” Spencer v. Kemma, 523 U.S. 1, 7 (1998).
sentence

has

expired,

however,

some

continuing

Once a

injury,

also

referred to as a “collateral consequence,” must exist for the
action to continue. Id.

The Supreme Court was previously willing

to presume that such collateral consequences remain after the
expiration of a petitioner's sentence where it is the legality of
the conviction that is challenged. Carafas v. LaVallee, 391 U.S.
234, 237–238 (1968); Sibron v. New York, 392 U.S. 40, 55 (1968).
However, where a petitioner is challenging only the legality of
his or her sentence, this presumption no longer applies. Lane v.
Williams, 455 U.S. 624, 632–33 (1982) (declining to extend the
presumption

of

collateral

consequences

in

the

context

of

a

challenge to a mandatory parole violator term when, during the
pendency of the litigation, the term expired); Spencer, 523 U.S.
at

14

(“declin[ing]

to

presume

that

collateral

consequences

adequate to meet Article III's injury-in-fact requirement resulted
from petitioner's parole revocation” once that term expired).
Here, Petitioner does not challenge his conviction or the
length of his sentence as it was originally imposed. Petitioner
questions only the DOC’s execution of his sentence – specifically,
whether

his

sentence.

“out-time”

should

be

counted

against

his

total

As relief, Petitioner requests that the Court order his

immediate release from DOC custody (Doc. 1 at 12).

The record

establishes that Petitioner has already been released from DOC
custody (Doc. 17; discussion supra Part I (Background)).
- 9 -

Although

it appears that Petitioner may currently be in custody of ICE (Doc.
17), the petition does not challenge the validity or reasonableness
of the ICE detainer, nor does Petitioner seek release from ICE
custody or argue that there are any immigration consequences to
the DOC’s sentence calculation.

A pronouncement by this Court

concerning Petitioner's § 2254 allegations could not now affect
his rights, and he no longer has a personal stake in the outcome;
accordingly,

this

case

is

moot.

See

Rice,

404

U.S.

at

248

(remanding case to court of appeals to consider mootness issue
because the petitioner’s sole clam related to a sentence he had
completely served); see also United States ex rel. Graham v. United
States

Parole

Comm'n,

732

F.2d

849,

850

(11th

Cir.

1984)

(dismissing habeas petition as moot where petitioner ultimately
sought release on parole and was released during pendency of habeas
action); Hernandez v. Wainwright, 796 F.2d 389, 390 (11th Cir.
1986) (habeas petition moot where petitioner attacked state's
calculation of gain time credits, and petitioner was no longer in
custody); United States v. Goss, 96 F. App'x 365 (6th Cir. 2004)
(defendant's objections to sentencing calculation were moot once
he had served his sentence); Walton v. Holinka, No. Civ. 07-2121
MJD/FLN, 2008 WL 495523, at *1 (D. Minn. Feb. 21, 2008) (“Where
the habeas petition only challenges the continued detention, there
is no actual case or controversy for the court to decide because
the petitioner is no longer being detained and any order from the

- 10 -

court requiring release of such a petitioner would not have any
effect.”).
B.

The petition is subject to dismissal due to Petitioner's
failure to update his current address

On April 9, 2013 and June 27, 2013, Petitioner was ordered to
keep the court apprised of his current address at all times (Doc.
4 at 2; Doc. 10 at 4).

He was cautioned that his failure to do

so could result in the dismissal of this case without further
notice (Doc. 10 at 4).

On November 14, 2013, Petitioner informed

the Court that he was being held at the Wakulla County Jail, 15
Oak Street, Crawfordville, Florida 32327 (Doc. 17).

Subsequently,

the Court sent mail to Petitioner on March 19, 2015 which was
returned as undeliverable because Petitioner was no longer at the
Wakulla County Jail.

Petitioner has filed no further updates with

this Court.
Accordingly,

this

case

is

subject

to

dismissal

due

to

Petitioner's failure to notify the Court of his current address.
III. Conclusion
Petitioner's only objective in bringing this habeas action
was to be released from DOC custody based upon his assertion that
the DOC had erroneously concluded that he was not entitled to
credit

against

his

sentence

for

time

spent

out

of

custody.

Petitioner has since been released from DOC custody, and there is
no longer a case or controversy to litigate.

- 11 -

Therefore his habeas

claims are moot, and this Court lacks jurisdiction to consider
them.
Alternatively, this case is subject to dismissal due to
Petitioner's failure to notify the Court of his current address.
Accordingly, it is hereby ORDERED AND ADJUDGED as follows:
1.

The Florida Attorney General is DISMISSED as a named

Respondent.
2.

The 28 U.S.C. § 2254 petition for habeas corpus relief

filed by Marcelino Gonzalez (Doc. 1) is DISMISSED without prejudice
because this Court no longer has jurisdiction to consider it.
Alternatively, the case is dismissed without prejudice due to
Petitioner's failure to notify the Court of his current address.
3.

The Clerk of Court is directed to terminate any pending

motions, enter judgment accordingly, and close this case.
DONE and ORDERED in Fort Myers, Florida on this
of April, 2015.

SA: OrlP-4
Copies: Marcelino Gonzalez
Counsel of Record

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13th

day