ORDER and REPORT AND RECOMMENDATION Before the court is an amended petition for writ of habeas corpus filed under 28 U.S.C. § 2254. (Doc. 4). Respondent filed an answer, submitting relevant portions of the state court record. (Doc. 12). Petitioner replied. (Doc. 15). The matter is referred to the undersigned magistrate judge for report and recommendation pursuant to 28 U.S.C. § 636 and N.D. Fla. Loc. R. 72.2(B). After careful consideration of all issues raised by petitioner, the undersigned concludes that no evidentiary hearing is required for the disposition of this matter. Rule 8(a)of the Rules Governing Section 2254 Cases in the United States District Courts. The undersigned further concludes that the pleadings and attachments before the court show that petitioner is not entitled to habeas relief, and that the amended petition should be denied.
BACKGROUND AND PROCEDURAL HISTORY On November 29, 1976, petitioner was convicted of first degree murder (a capital felony) in Polk County Circuit Court Case No. 76-CF-846, and sentenced to life imprisonment with a 25-year mandatory minimum. (Doc. 12, Ex. A).2 That same date, petitioner was convicted of aggravated assault in Polk County Circuit Court Case No. 76-CF-847, and sentenced to a concurrent 5-year sentence. (Ex. A). Petitioner did not appeal from the judgment. (Doc. 4, p. 1).
Petitioner was paroled on June 19, 2001. (Ex. D). In 2009, petitioner was found guilty of violating his parole by committing a battery. The Commission declined to revoke petitioner's supervision and instead restored him to supervision upon amended terms and conditions. (Ex. E).
On or about June 23, 2011, petitioner was charged with violating two conditions of his parole: (1) posting bail or accepting pretrial release without first securing the permission of his parole officer and (2) failing to obey all laws,ordinances or statutory conditions of parole by unlawfully touching or striking another person (petitioner's brother) against the victim's will. (Ex. F). Petitioner waived his right to a preliminary parole hearing. (Ex. F6). In preparation for the final parole revocation hearing, petitioner was provided notice of the charges and of his rights in the proceedings. (Ex. F7-9). Petitioner requested a final violation hearing, agreed to telephonic testimony, waived his right to be represented by counsel, indicated his intention to deny the first charged violation, and indicated his intention to acknowledge the second violation as true. (Ex. F8). Petitioner also requested three witnesses to appear at his hearing. (Id.).
Petitioner's final revocation hearing was held on August 25, 2011. (Ex. F10-F14). Petitioner was found not guilty of the first violation of accepting bail or pretrial release without permission, but was found guilty of the second violation of failing to obey all laws, ordinances or statutory conditions of parole by unlawfully touching or striking another. (Ex. F13). Petitioner's parole was revoked by Commission decision dated September 28, 2011. (Ex. F16). Petitioner sought state judicial review of the parole revocation by filing a petition for writ of habeas corpus in the Taylor County Circuit Court on May 3, 2013.3 (Ex. I). The state circuit court denied relief. (Ex. J). Petitioner sought further review by filing a petition for writof certiorari in the Florida First District Court of Appeal (First DCA). (Ex. K). The First DCA summarily denied the petition, per curiam and without a written opinion. Courtney v. Fla. Parole Comm'n, 127 So. 3d 505 (Fla. 1st DCA 2013) (Table) (copy at Ex. M). The mandate issued December 17, 2013. (Id.).
On March 28, 2012, the Commission established petitioner's new Presumptive Parole Release Date (PPRD) as follows:
| Level 6 for a Capital Felony |
| Matrix Time Range of 180-240 |
| Set at the top (240 months)
|
Aggravating factors assessed included the following:
| (1) The scored offense involved the use of a |
| firearm: to wit, a .32 caliber pistol. |
| (2) Multiple separate offenses in Case #76-847, |
| Aggravated Assault. (Previously set)
|
| (3) The inmate's behavior involved excessive |
| alcohol use on the day of the scored offense, per the |
| Admission and Classification Summary. |
| (4) Applicant[']s continued pattern of aggressive or |
| assaultive behavior, as well on parole supervision is |
| a negative indicant of parole prognosis. |
(Ex. G). The Commission added the aggravation months (192) to the Matrix Time Range months (240) and applied that total to the Time Begins Date of September 5, 1985, to derive a new PPRD of September 5, 2021. (Id.). The Commission also decided to schedule petitioner's next interview date within seven years, pursuant to Fla. Stat. § 947.174, based on his murder conviction and the finding that it was not reasonable to expect he would be granted parole during the following years due to the following: (1) the offense involved the use of a firearm; to wit, a .32 caliber pistol; (2) petitioner was a parole violator; and (3) any release may cause unreasonable risk to others. (Ex. G).
Petitioner sought administrative review of his PPRD; however, his request for review was rejected as insufficient under Fla. Stat. § 947.173(1), because petitioner's request failed to "address with individual particularities the action taken by the Commission. . . ." (Ex. H). Petitioner was given the opportunity to submit another request for review on or before June 29, 2012. (Id.). Petitioner did not submit another request for review. On May 30, 2013, petitioner challenged the establishment of his PPRD on ex post facto grounds in a habeas corpus petition filed in the Leon County Circuit Court. (Ex. N). The state circuit court construed the petition as a mandamus petition and denied relief on the grounds that petitioner failed to exhaust his administrative remedies and, alternatively, that the ex post facto claim was without merit. (Ex. Q). Petitioner appealed. The First DCA summarily affirmed, per curiam and without a written opinion. Courtney v. Fla. Comm'n on Offender Review, 152 So. 3d 567 (Fla. 1st DCA 2014) (Table) (copy at Ex. U). The mandate issued December 23, 2014. (Id.).
Petitioner filed his original federal habeas petition on January 15, 2015, (doc. 1), which he later amended (doc. 4). The amended petition presents two claims: a challenge to the September 28, 2011 parole revocation, and a challenge to the March 28, 2012 setting of petitioner's PPRD. Respondent asserts that petitioner is not entitled to habeas relief on either of his claims because his challenge to his parole revocation is untimely, raises purely state law issues, and is without merit. Respondent asserts that petitioner's challenge to the establishment of his PPRD is procedurally defaulted and without merit. (Doc. 12). Petitioner's reply addresses only the merits of the parole revocation claim. (Doc. 15).
Ground One "The Parole Commission knew that the police report was base[d] on false information. See 'Exhibits B, E'. The revocation of petitioner['s] parole was base[d] on the false police report." (Doc. 4, p. 5).
Petitioner challenges the September 28, 2011 revocation of his parole on three grounds: (1) it was based on an arrest report the Commission knew to be false; (2) it was based on hearsay; and (3) it was based on a violation that was not proven to be willful and substantial. (Doc. 4). Respondent's first defense, which is dispositive of the claim, is that this claim is time-barred. (Doc. 12, p. 15).
The AEDPA imposes a one-year statute of limitations on petitions filed pursuant to § 2254. 28 U.S.C. § 2244(d)(1). Under Brown v. Barrow, 512 F.3d 1304 (11th Cir. 2008), the one-year limitation period for petitioner to challenge the revocation of his parole ran from the date of the Commission's decision, i.e., "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence." 28 U.S.C. § 2244(d)(1)(D); see Brown, 512 F.3d at 1307 n.1 ("We join our sister circuits in deciding that subsection D, and not subsection A, applies in this circumstance [where a § 2254 petition challenges the decision of a state parole board].");4 Hawes v. Howerton, 335 F. App'x 882, 884 (11th Cir. 2009) (following Brown). The limitations period is tolled for the "time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." 28 U.S.C. § 2244(d)(2).
The Commission revoked petitioner's parole and notified him of its decision on September 28, 2011. The limitations period began to run the following day, on September 29, 2011. See San Martin v. McNeil, 633 F.3d 1257, 1266 (11th Cir. 2011) ("AEDPA's one-year limitation period beings to run from the day after the day of the event that triggers the period); Chambers v. Fla. Parole Comm'n, 257 F.App'x 258, 259-260 (11th Cir. 2007) (holding that statute of limitations on habeas petitioner's challenge to parole revocation began running, at the latest, on the day after the entry of the order revoking his parole). The limitations period expired one year later on October 1, 2012.5 Petitioner's original federal habeas petition was not filed until January 15, 2015, over two years after the limitations period expired. Petitioner's May 3, 2013, state habeas petition did not statutorily toll the limitations period, because the limitations period had already expired. Hutchinson v. Florida, 677 F.3d 1097, 1098 (11th Cir. 2012) ("In order for that § 2244(d)(2) statutory tolling to apply, the petitioner must file his state collateral petition before...
