Brown v. McNeil, Case No. 3:05-cv-86-32TEM.

CourtUnited States District Courts. 11th Circuit. United States District Court of Middle District of Florida
Writing for the CourtTimothy J. Corrigan
Citation591 F.Supp.2d 1245
PartiesBernard BROWN, Sr., Petitioner, v. Walter A. McNEIL,<SMALL><SUP>1</SUP></SMALL> et al., Respondents.
Decision Date14 May 2008
Docket NumberCase No. 3:05-cv-86-32TEM.
591 F.Supp.2d 1245
Bernard BROWN, Sr., Petitioner,
v.
Walter A. McNEIL,1 et al., Respondents.
Case No. 3:05-cv-86-32TEM.
United States District Court, M.D. Florida, Jacksonville Division.
May 14, 2008.

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COPYRIGHT MATERIAL OMITTED

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Bernard Brown, Sr., Jasper, FL, pro se.

ORDER

TIMOTHY J. CORRIGAN, District Judge.


I. Status

Petitioner Bernard Brown, Sr., an inmate of the Florida penal system proceeding pro se, initiated this action by filing a Petition for Writ of Habeas Corpus (Doc. # 1) (hereinafter Petition) pursuant to 28 U.S.C. § 2241 and 28 U.S.C. § 2254 on January 24, 2005.2 Petitioner challenges the revocation of his conditional release supervision and argues that "[t]he [circuit] court created a manifest injustice by ignoring and failing to review competent substantial evidence via sworn testimony that Brown's violations of conditional release supervision were not willful or arbitrary." Petition at 6. Petitioner requests that this Court review the record of the revocation hearing. Id. He concludes that "the testimony given at the hearing completely exonerates him and even in light of his admiss[i]on of guilt will prove his admitted violations were not willful or arbitrary ...." Id.

The Florida Parole Commission filed a Response to Petition (Doc. # 8) (hereinafter Response) with exhibits in support of the Response.3 Petitioner was instructed on how to properly respond. See Court's Order to Show Cause and Notice to Petitioner (Doc. # 6). Petitioner has replied. See Petitioner's Reply to Respondents' Response to Petition (Doc. # 12); Notice of Pertinent Authority for Consideration in Habeas Corpus Proceeding (Doc. # 18). On March 30, 2007, this Court ordered the Respondents to supplement the record with a complete transcript of the May 2, 2003, hearing. See Court's Order (Doc. # 13). Respondents, on June 5, 2007, filed the transcript of the May 2, 2003, conditional release violation hearing. See Respondents' Notice of Filing Transcript (Doc. # 16), attached Transcript of the

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May 2, 2003, conditional release hearing (hereinafter Tr.). This case is now ripe for review.

II. Procedural History

On April 17, 1989, Petitioner Brown was sentenced to two concurrent thirty-year terms of incarceration for two counts of attempted sexual battery on a child under twelve years of age in Columbia County Case No. 89-181. Ex. A. Petitioner was also sentenced, upon violation of probation, to concurrent ten-year terms of incarceration for unarmed robbery in Columbia County Case No. 85-44 and armed robbery in Columbia County Case No. 87-531. Ex. B; Ex. C. Petitioner was further sentenced to fifteen-year terms of incarceration for robbery in Columbia County Case Nos. 89-80 and 89-123, to run consecutively to each other, but to run concurrently with his other sentences. Ex. D; Ex. E.

On February 7, 2002, having reached his release date, Petitioner Brown was released to conditional release supervision in accordance with Fla. Stat. § 947.1405, subject to terms and conditions, until January 26, 2019 (the maximum supervision date). Ex. F. On March 6, 2003, the Florida Parole Commission issued a Warrant for Retaking Conditional Releasee, stating:

TO ANY OFFICER authorized to serve criminal process and all peace officers of this State:

Having reasonable cause to believe that Bernard Brown, a prisoner of the State of Florida, was released from the Department of Corrections, for the offense of Robbery No Firearm or Deadly Weapon, and Attempted Sexual Battery By An Adult, and now in the legal custody of the Florida Parole Commission, has violated the terms and conditions of his/her Conditional Release or has lapsed into criminal ways by:

Violated Condition 7 by failing to obey all laws, ordinances or statutory conditions of Conditional Release in that on or about February 8, 2003, in Columbia County, Florida, he did unlawfully possess, and or constructively possess drug paraphernalia, to-wit: a Cocoa [sic] Cola can with a pinhole on one side containing cocaine residue.

Violated Condition 7 by failing to obey all laws, ordinances or statutory conditions of Conditional Release in that he did willfully fail to comply with Florida Statutes 948.09 (Formerly 945.30) and as of February 11, 2003, he did fail to make $50.00 per month cost of supervision payments, and is $312.41 in arrears.

Violated Special Condition 15 which states, "You shall have a mandatory curfew where you shall be confined to your residence during the hours from 7:00 p.m. to 6:00 a.m., except for work/treatment purposes as authorized by your Conditional Release Supervisor," and this he failed to do by remaining away from his residence on February 28[4], 2003, at approximately 4:18 a.m.

Now, therefore, pursuant to the provisions of Chapter 947, Florida Statutes, I hereby order that said prisoner be retaken and detained for a violation hearing as provided in said Chapter, and I hereby authorize and require you to so retake him/her and for so doing, this shall be your sufficient warrant.

Ex. G.

On April 1, 2003, Petitioner was arrested on the March 6, 2003 warrant and was taken to the Columbia County Jail. On April 7, 2003, Joseph Reese, a Florida

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Parole Commission hearing officer, conducted an initial interview with Petitioner at the jail and gave him notice of his upcoming conditional release violation hearing. At the May 2, 2003, violation hearing, the hearing officer informed Petitioner of his rights.5

Mr. Reese: When I interviewed you on April 7, 2003, you indicated that you did not have an attorney to represent you during the hearing?

Inmate Brown: Yes.

Mr. Reese: Do you still want to proceed without an attorney?

Inmate Brown: Yes.[6]

Mr. Reese: Okay, I will go over your rights one more time. You are entitled to appear and speak on your own behalf, and present documents at the Conditional Release Violation hearing. You have a right to present evidence on your own behalf, which includes the right to obtain witnesses to appear on your behalf, and request the Commission [to] issue subpoenas to those witnesses. You are entitled to have evidence that will be disclosed to you prior to the hearing. You have the right to examine evidence used against you, and to confront and cross examine adverse witnesses that testified against you at your violation hearing. You have the right to be represented by council [sic] and under certain circum-stances[,] council [sic] may be appointed for you if you are indigent. Appointed council [sic] will be considered under the standards set forth by the United States Supreme Court decision of Gagnon/Scar[p]elli[7] (inaudible) Rule 2322.014 Florida Administrative Code. You have a right to receive 14 days advance written notice of the hearing or you may waive any and all of the above stated rights, or you may waive your right to a violation hearing. Do you have any questions about your rights before we proceed with the hearing?

Inmate Brown: No sir.

Mr. Reese: The hearing is held pursuant to Florida Statute 947.141, this is a final revocation hearing, but as I have explained to you[,] the final decision is made by the Commissioners in Tallahassee. It is really my responsibility to conduct the hearing and make a recommendation, but they make the final decision.[8] Mr. Hogan [probation officer] can make a recommendation for the record also if he wants to. This is an administrative hearing; it is not really a criminal trial, so the rules of evidence applied in a criminal proceeding will not necessarily apply during this hearing. At this time, Mr. Hogan is in attendance, myself Joseph Reese, Parole Examiner, the releasee Bernard Brown, and Parole

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and Probation Officer who is in training, and her name is Adrian Dulapree. What I am going to do Mr. Brown is read each one of these violations to you again and then you can enter you[r] plea for the record.

Tr. at 1-2. Petitioner acknowledged that he understood the above-described rights. Id.

The hearing transcript reflects that Petitioner pled not guilty to the first violation (failure to obey all laws by unlawful possession of drug paraphernalia). However, the transcript contains a number of "inaudibles," instances where the court reporter was apparently not able to discern what was being said on the audiotape of the hearing.9 Unfortunately, two of these "inaudible" moments occur when Petitioner was asked to offer his plea to the second violation (failure to pay the costs of supervision) and to the third violation (failure to comply with the mandatory curfew). Id. at 2-3, 6. The transcript reflects that after Petitioner offered his [inaudible] response as to his plea regarding the second violation, Petitioner and the hearing officer engaged in a discussion as to whether Petitioner's violation of that charge was merely technical, whether it perhaps involved mitigating factors, and whether he could "plead no contest." Id. at 2. Moving on to the plea as to the third violation (regarding the curfew), the transcript reveals that after Petitioner's [inaudible] response, the hearing officer discussed whether the two arresting officers who were scheduled to testify had been located, and took a brief recess. Id. at 3. Once back on the record, the hearing officer stated that Petitioner had pled no contest to both the second and third violations. Id. He then engaged in further discussion with Petitioner regarding whether Petitioner was intending to change his plea from no contest to guilty as to the second violation. Unfortunately, Petitioner's response as to whether this was his intent is again "inaudible." Id. The hearing officer then read Petitioner the charges forming the third violation and asked Petitioner whether he wanted to change his plea. Id. at 3-4. Here too, Petitioner's response is "inaudible." Id. at 4.

After Petitioner entered his pleas, which the hearing officer's Summary10 reported were pleas of "not guilty" as to...

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2 practice notes
  • Smith v. Florida Parole & Prob. Comm'n, Case No. 2:10-cv-668-FtM-36DNF
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • December 16, 2011
    ...liberties must also be afforded to a Florida prisoner while on "conditional release." See Brown v. McNeil, Case No. 3:05-cv-86-32TEM, 591 F.Supp.2d 1245, 1259-1260 (M.D. Fla. May 14, 2008)(citing cases and explaining that Florida's Conditional Release program is a "probation-type program.")......
  • Schmidt v. Bondi, CASE NO. 5:12-cv-00226-MP-EMT
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Florida
    • October 1, 2012
    ...imposed by the sentencing court." Instead, the Court agrees with the following language from our sister court in Brown v. McNeil, 591 F.Supp.2d 1245, 1259 (M.D. Fla. 2008), which considered whether the revocation of conditional release should be governed by the same standards as revocation ......
2 cases
  • Smith v. Florida Parole & Prob. Comm'n, Case No. 2:10-cv-668-FtM-36DNF
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • December 16, 2011
    ...liberties must also be afforded to a Florida prisoner while on "conditional release." See Brown v. McNeil, Case No. 3:05-cv-86-32TEM, 591 F.Supp.2d 1245, 1259-1260 (M.D. Fla. May 14, 2008)(citing cases and explaining that Florida's Conditional Release program is a "probation-type program.")......
  • Schmidt v. Bondi, CASE NO. 5:12-cv-00226-MP-EMT
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Florida
    • October 1, 2012
    ...imposed by the sentencing court." Instead, the Court agrees with the following language from our sister court in Brown v. McNeil, 591 F.Supp.2d 1245, 1259 (M.D. Fla. 2008), which considered whether the revocation of conditional release should be governed by the same standards as revocation ......

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