Collins v. Hendrickson, No. 8:02 CV 1438 T 27MSS.

CourtUnited States District Courts. 11th Circuit. United States District Court of Middle District of Florida
Writing for the CourtWhittemore
Citation371 F.Supp.2d 1326
Docket NumberNo. 8:02 CV 1438 T 27MSS.
Decision Date26 January 2005
PartiesAnthony COLLINS, Plaintiff, v. Brian K. HENDRICKSON; et al., Defendants.
371 F.Supp.2d 1326
Anthony COLLINS, Plaintiff,
v.
Brian K. HENDRICKSON; et al., Defendants.
No. 8:02 CV 1438 T 27MSS.
United States District Court, M.D. Florida, Tampa Division.
January 26, 2005.

Anthony Collins, Lake Butler, FL, pro se.

Beverly Brewster, Judy A. Bone, General Counsel's Office, Department of Corrections, Bradley R. Bischoff, Office of the Attorney General, Tallahassee, FL, for Defendants.

ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS

WHITTEMORE, District Judge.


BEFORE THE COURT is Petitioner's pro se Amended Petition for Writ of Habeas Corpus. filed pursuant to 28 U.S.C. § 2254 (Dkt. 13). Upon consideration, the Petition for Writ of Habeas Corpus is GRANTED. The Florida Parole Commission is accordingly ORDERED to forthwith release Petitioner ANTHONY COLLINS, a/k/a EDWARD KING, DC # 072597, under the terms and conditions of its July 9, 1991 Control Release Agreement.

This cause was referred to the Honorable Mary S. Scriven. United States Magistrate Judge. (Dkt. 58). Judge Scriven, in a thoughtful, well reasoned and detailed

Page 1327

analysis of the factual and procedural history relevant to Petitioner's claims and after correctly applying federal law, has rendered her Report and Recommendation, concluding that the Florida Parole Commission ("FPC"), in its July 26, 2000 revocation of Petitioner's Control Release, failed to comply with the procedures mandated by Fla. Stat. § 947.141(4) for revocation of Control Release, violating Petitioner's 14th Amendment due process rights, as recognized by Florida and federal law.1

On July 9, 1991, Petitioner, while serving concurrent 20 and 15 year sentences for strong armed robbery, armed robbery, armed burglary and aggravated battery, was granted control release pursuant to a Florida law authorizing the early release of Florida inmates to control the rising prison population. The FPC administered the program, acting as the Control Release Authority. See Fla. Stat. § 947.146.2 In 1994, Petitioner was arrested for violation of the conditions of his release. After a hearing, he was restored to supervision. (Dkt. 7, Ex. E). In July, 1999. Petitioner had an argument with his girlfriend, resulting in his arrest on and conviction of domestic battery. As a result, the FPC issued an arrest warrant and, based upon Petitioner's conviction, revoked his supervision, notwithstanding the hearing officer's recommendation that Petitioner be restored to supervision (Dkt. 7, Ex. H).

After Petitioner successfully moved to vacate his un-counseled guilty plea to the domestic battery charge, the FPC vacated its earlier revocation order and restored Petitioner to supervision. (Dkt. 7, Ex. I). The next day, however, the FPC issued an arrest warrant based on Petitioner's "behavior", rather than his domestic violence conviction. (Dkt. 7, Ex. J). While Petitioner's revocation proceeding was pending, the State Attorney nolle prossed the domestic battery charge. (Dkt. 39). A revocation hearing was conducted by Parole Examiner Cooper on June 13, 2000. P.E. Cooper found Petitioner not guilty and recommended that Petitioner be released on control release supervision. (Dkt. 1, Ex. F at 8).

On July 26, 2000, in the decision Judge Scriven found violated Petitioner's 14th Amendment due process rights, the FPC revoked Petitioner's supervision and returned him to custody, effectively rejecting P.E. Cooper's factual finding that Petitioner did not violate the conditions of his release in the incident involving his girlfriend. (Dkt. 7, Ex. L).3

A parolee enjoys a liberty interest protected by the 14th Amendment's due process clause. Ellard v. Alabama Bd. of Pardons and Paroles, 824 F.2d 937, 942 (11th Cir.1987), cert. denied, 485 U.S. 981, 108 S.Ct. 1280, 99 L.Ed.2d 491 (1988) (quoting Morrissey v. Brewer, 408 U.S. 471, 482, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)) ("Once an individual has been released into society under the constraints of

Page 1328

either parole or probation, however, the resulting freedom, `although indeterminate, includes many of the core values of unqualified liberty' and thus inherently `falls within the protection of the Fourteenth Amendment.'") The parolee's due process rights are implemented when that liberty interest is subject to revocation. Id. In Florida, revocation hearings are governed by due process considerations. See Gillard v. State, 827 So.2d 316 (Fla. 1st DCA 2002) (citing Morrissey, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)).

As the Magistrate Judge correctly observed, Fla. Stat. § 947.141 places substantive limitations on the FPC when it is deciding whether to revoke a person's supervision. In sum, the FPC must make its decision based on the factual findings of its authorized representative, the hearing examiner. The FPC cannot disregard a hearing examiner's factual findings and substitute its own, where the hearing examiner's findings are supported by competent, substantial evidence and it is a "departure from the essential requirements of law" for a court to affirm a decision of the FPC under those circumstances. Tedder v. Florida Parole Commission, 842 So.2d 1022 (Fla. 1st DCA 2003)4; see also, Mabrey v. Florida Parole Commission, 858 So.2d 1176, 1183 (Fla. 2d DCA 2003): Merritt v. Crosby, 893 So.2d 598, (Fla. 1st DCA 2005)("As we explained in Tedder v. Florida Parole Commission, (citation omitted), the Parole Commission is not at liberty to reweigh the evidence considered by the hearing examiner in order to find a violation where the examiner's finding to the contrary is supported by competent, substantial evidence.")

The Magistrate Judge correctly recognized that liberty interests can arise from state law where, as here, a statute places substantive limitations on official discretion. (Dkt. 70, p. 33: citing Ellard, 824 F.2d at 942). It follows that the limitations placed on the FPC's discretion in § 947.141 give rise to due process protections to parolees such as Petitioner who are facing revocation. In Ellard, the Eleventh Circuit observed:

"As the Supreme Court has made clear, where a claimed liberty interest does not arise from the due process clause itself, `[t]he ground for any constitutional claim, if any, must be found in statutes or other rules defining the obligations of the authority charged with exercising' the claimed liberty interest. The due process clause, in short, prohibits the states from negating by their actions rights that they have conferred by their words. The states, of course, may elect not to confer rights, such as parole, that are not inherent in the Constitution. But once a state does choose to confer such a right, the prisoner's interest has `real substance,' and the right can be revoked only under the limitations imposed

Page 1329

by the Due Process Clause." (citations omitted).

Ellard, 824 F.2d at 943.

The Magistrate Judge correctly concluded that Petitioner's due process rights were violated when the FPC, contrary to the mandate of Fla. Stat. § 947.141, effectively rejected P.E. Cooper's factual findings in favor of Petitioner and substituted its own findings, rather than making its determination "based upon the findings of fact presented by ... the authorized representative", where the findings of P.E. Cooper were supported by competent, substantial evidence. Further, the Magistrate Judge correctly concluded that the state court's decision denying Petitioner relief was "contrary to, or involved an unreasonable application of federal law," 28 U.S.C. § 2254(d)(1). Finally, the Magistrate Judge correctly concluded that the "FPC's action was contrary to state law and to `clearly established Federal law, as determined by the Supreme Court of the United States.'" (Dkt. 70, p. 38).

Accordingly, it is

ORDERED AND ADJUDGED:

1. The Magistrate Judge's Report and Recommendation is approved and adopted in all respects and made a part of this order for all purposes, including appeal.

2. Petitioner's Amended Petition for Writ of Habeas Corpus (Dkt. 13) is GRANTED. The State of Florida, acting through the Florida Parole Commission and the Florida Department of Corrections, is ORDERED to forthwith release Petitioner ANTHONY COLLINS, a/k/a EDWARD KING, DC # 072597 under the terms and conditions of its July 9, 1991 Control Release Agreement, subject to any lawful detainers, if any.

3. The Clerk is directed to close this case and deny any pending motions as moot.

Anthony Collins, a/k/a Edward King, Petitioner,

v.

Brian K. Hendrickson, Charles J. Crist, Jr.,1 and Florida Parole Commission, Respondents.

REPORT AND RECOMMENDATION

---------------

Notes:

1. Neither party filed objections to the Report and Recommendation.

2. As The Magistrate Judge observed, when he was released to control release, Petitioner's tentative release date, based on accumulated gain time, was April 13, 1996. "Plainly put, Petitioner's remaining sentence had been reduced to less than five years." (Dkt. 70, p. 5).

3. The Florida Department of Corrections thereafter forfeited 4.210 days of Petitioner's gain time. (Dkt. 10, Ex. H, Ex. 3). On Petitioner's claim that this was an unconstitutional ex post facto application of Florida law, the state court concluded that Petitioner had waived that claim. Judge Scriven correctly concluded that the state court's decision was not contrary to and did not involve an unreasonable application of clearly established federal law, that it was not based on an unreasonable determination of facts, and that the state court's factual determination was entitled to a presumption of correctness. (Dkt. 70. p. 26-28).

4. In Tedder, a case involving a FPC revocation decision, the court quoted from Heifetz v. Dep't of Bus. Reg., 475 So.2d 1277, 1281 (Fla. 1st DCA 1985):

Factual issues susceptible of ordinary methods of proof that are not infused with policy considerations are the prerogative of the hearing officer as the finder of fact.... It is the hearing officer's function to consider all the...

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3 practice notes
  • Brown v. McNeil, Case No. 3:05-cv-86-32TEM.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • May 14, 2008
    ...be supported by finding that probationer has violated a condition of probation "in a material respect"); Collins v. Hendrickson, 371 F.Supp.2d 1326, 1328 (M.D.Fla.2005) (granting habeas petition where revocation of petitioner's control release supervision violated due process when Florida P......
  • 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
    ...be supported by finding that probationer has violated a condition of probation "in a material respect"); Collins v. Hendrickson, 371 F.Supp.2d 1326, 1328 (M.D. Fla. 2005)(granting habeas petition where revocation of petitioner's control release supervision violated due process when FPC fail......
  • Yahweh v. U.S. Parole Com'n, No. 01 2848 CIV.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • April 25, 2006
    ...when holding parolee in custody for 31 days before granting hearing regarding parolee's parole revocation); Collins v. Hendrickson, 371 F.Supp.2d 1326, 1328 (M.D.Fla.2005) ("The parolee's due process rights are implemented when that liberty interest is subject to In fact, in Benny, the Nint......
3 cases
  • Brown v. McNeil, Case No. 3:05-cv-86-32TEM.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • May 14, 2008
    ...be supported by finding that probationer has violated a condition of probation "in a material respect"); Collins v. Hendrickson, 371 F.Supp.2d 1326, 1328 (M.D.Fla.2005) (granting habeas petition where revocation of petitioner's control release supervision violated due process when Florida P......
  • 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
    ...be supported by finding that probationer has violated a condition of probation "in a material respect"); Collins v. Hendrickson, 371 F.Supp.2d 1326, 1328 (M.D. Fla. 2005)(granting habeas petition where revocation of petitioner's control release supervision violated due process when FPC fail......
  • Yahweh v. U.S. Parole Com'n, No. 01 2848 CIV.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • April 25, 2006
    ...when holding parolee in custody for 31 days before granting hearing regarding parolee's parole revocation); Collins v. Hendrickson, 371 F.Supp.2d 1326, 1328 (M.D.Fla.2005) ("The parolee's due process rights are implemented when that liberty interest is subject to In fact, in Benny, the Nint......

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