GAINES v. SECRETARY FLORIDA DEPARTMENT OF CORRECTIONS et al

Filing 27

ORDER DENYING THE 7 PETITION AND DENYING A CERTIFICATE OF APPEALABILITY - The 25 report and recommendation is accepted. The clerk must enter judgment stating, "The petition is denied with prejudice." A certificate o f appealability is granted on this issue only: whether Mr. Gaines's claim that the state violated his plea agreement has properly been denied without an evidentiary hearing. The clerk must close the file. Signed by JUDGE ROBERT L HINKLE on 3/28/2018. (vkm)

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION

TOMMY LEE GAINES,
Petitioner,
v.

CASE NO. 4:14cv588-RH/GRJ

FLORIDA COMMISSION ON
OFFENDER REVIEW et al.,
Respondents.
__________________________________/

ORDER DENYING THE PETITION AND
DENYING A CERTIFICATE OF APPEALABILITY

By petition for a writ of habeas corpus under 28 U.S.C. § 2254, Tommy Lee
Gaines challenges the implementation of his state-court sentence. The petition is
before the court on the magistrate judge’s report and recommendation, ECF No.
25, and the objections, ECF No. 26. I have reviewed de novo the issues raised by
the objections. The report and recommendation correctly concludes that the
petition should be denied.
Mr. Gaines pleaded guilty. The state court imposed a 30-year habitualoffender sentence. As authorized by state law, Mr. Gaines was placed on
community release, but his community release was revoked and he was returned to
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custody because he committed a new offense, thus violating his conditions of
release. Florida law afforded Mr. Gaines the right to a hearing on whether he in
fact committed the new offense, but Mr. Gaines waived his right to a hearing. As
authorized by Florida law, Mr. Gaines did not receive credit on his 30-year
sentence for time on community release, and his previously accrued gain time was
revoked.
There is nothing inherently unconstitutional about a state conditional-release
program of this kind. A state could choose to require a 30-year sentence to be
served all at once, with no break, but a state also could choose, as Florida has done,
to release a defendant meeting specified criteria early, on the understanding that, if
the defendant commits a new offense, the defendant will have to serve the rest of
the sentence. A state could choose to provide gain time for prisoners whose contact
warrants it and to vest the gain time once earned, precluding later forfeiture, but a
state also could choose, as Florida has done, to provide gain time but to make it
subject to forfeiture if the defendant commits a new offense.
Ex post facto principles apply to unfavorable changes after the date of an
offense, but Mr. Gaines makes no claim that the governing law changed after his
offense. A defendant has a right to procedural due process, including, in
appropriate circumstances, an evidentiary hearing, but Mr. Gaines waived his right
to a hearing. A state must comply with a plea agreement on which a guilty plea is

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based, see, e.g., Santobello v. New York, 404 U.S. 257 (1971), but Mr. Gaines has
not shown that his plea agreement purported to countermand state law on gain time
or conditional release, and his unsupported contrary conclusion makes no sense.
The bottom line is this. Mr. Gaines received a proper 30-year sentence that
fully complied with his plea agreement. When the proper time arrived under
Florida law, Mr. Gaines was released from prison and placed on community
release. This would have been a favorable development for Mr. Gaines, but he
committed a new offense. Or so the state alleged. Mr. Gaines could have required
the state to prove it, but he chose not to do so. He went back to prison, precisely in
compliance with Florida law.
To be sure, Mr. Gaines disagrees with this reading of state law. But as
properly set out in the report and recommendation, a violation of state law, even if
it occurred, would not entitle him to relief and this federal habeas proceeding.
Rule 11 of the Rules Governing § 2254 Cases requires a district court to
“issue or deny a certificate of appealability when it enters a final order adverse to
the applicant.” Under 28 U.S.C. § 2253(c)(2), a certificate of appealability may
issue “only if the applicant has made a substantial showing of the denial of a
constitutional right.” See Miller-El v. Cockrell, 537 U.S. 322, 335-38 (2003); Slack
v. McDaniel, 529 U.S. 473, 483-84 (2000); Barefoot v. Estelle, 463 U.S. 880, 893
n.4 (1983); see also Williams v. Taylor, 529 U.S. 362, 402-13 (2000) (setting out

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the standards applicable to a § 2254 petition on the merits). As the Court said in
Slack:
To obtain a COA under § 2253(c), a habeas prisoner must make a
substantial showing of the denial of a constitutional right, a
demonstration that, under Barefoot, includes showing that
reasonable jurists could debate whether (or, for that matter, agree
that) the petition should have been resolved in a different manner
or that the issues presented were “ ‘adequate to deserve
encouragement to proceed further.’ ”
529 U.S. at 483-84 (quoting Barefoot, 463 U.S. at 893 n.4). Further, to obtain a
certificate of appealability when dismissal is based on procedural grounds, a
petitioner must show, “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.” Id. at 484.
Mr. Gaines has not made the required showing. This order denies a
certificate of appealability.
For these reasons and those set out in the report and recommendation,
IT IS ORDERED:
1. The report and recommendation is accepted.
2. The clerk must enter judgment stating, “The petition is denied with
prejudice.”

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3. A certificate of appealability is granted on this issue only: whether Mr.
Gaines’s claim that the state violated his plea agreement has properly been denied
without an evidentiary hearing.
4. The clerk must close the file.
SO ORDERED on March 28, 2018.
s/Robert L. Hinkle
United States District Judge

Case No. 4:14cv588-RH/GRJ