Diaz v. Fla. Comm'n On Offender Review, Case No.: 4:15cv35/MW/EMT

CourtUnited States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Florida
Writing for the CourtELIZABETH M. TIMOTHY CHIEF UNITED STATES MAGISTRATE JUDGE
Decision Date10 August 2015
PartiesMANUEL DIAZ, Petitioner, v. FLORIDA COMMISSION ON OFFENDER REVIEW, et al., Respondents.
Docket NumberCase No.: 4:15cv35/MW/EMT

MANUEL DIAZ, Petitioner,
v.
FLORIDA COMMISSION ON OFFENDER REVIEW, et al., Respondents.

Case No.: 4:15cv35/MW/EMT

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

August 10, 2015


REPORT AND RECOMMENDATION

This cause is before the court on Petitioner's petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 (doc. 1). Respondent Florida Commission on Offender Review ("FCOR")1 filed an answer (doc. 8).2 Petitioner filed a reply (doc. 10).

The case was referred to the undersigned for the issuance of all preliminary orders and any recommendations to the district court regarding dispositive matters. See N.D. Fla. Loc. R. 72.2(B); see also 28 U.S.C. § 636(b)(1)(B), (C) and Fed. R. Civ. P. 72(b). After careful consideration of all issues raised by Petitioner, it is the opinion of the undersigned that no evidentiary hearing is required for the disposition of this matter, Rules Governing Section 2254 Cases 8(a). It is further the opinion of the undersigned that the pleadings and attachments before the court show that Petitioner is not entitled to relief.

I. BACKGROUND AND PROCEDURAL HISTORY

The relevant aspects of the procedural background of this case are undisputed (see doc. 10 at 1) and established by the state court record (see doc. 8).3 On March 21, 1995, the Circuit Court

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in and for Leon County, Florida, issued a judgment and sentence in Case No. 92-2940-CFA, adjudicating Petitioner guilty of robbery with a gun, attempted second degree murder, and aggravated battery with a deadly weapon, and sentencing him to thirty-seven years in prison on the robbery count, fifteen years in prison on the attempted second degree murder count, and fifteen years in prison on the aggravated battery count (see Ex. 3, sub-exhibit A).

On April 25, 2010, the FCOR issued an order that Petitioner be released on to conditional release supervision until February 13, 2031 (see Ex. 3, sub-exhibit B). On November 18, 2011, Petitioner was arrested for possession of cocaine and paraphernalia (see Ex. 3, sub-exhibit C). On November 21, 2011, the FCOR issued a warrant for Petitioner's arrest for violating the conditions of his supervision (see id.). On January 5, 2012, Petitioner was notified that the alleged violations of his supervision were as follows:

1. Violated Condition 4(b) by using or possessing narcotics, drugs, or marijuana, unless prescribed by a physician, in that on or about November 18, 2011, he did use and/or possess cocaine, not prescribed by a physician.

2. Violated Condition 7 by failing to obey all laws, ordinances or statutory conditions of Conditional Release, in that on or about November 18, 2011, in Dade County, Florida, he did unlawfully possess/constructively possess a controlled substance, to wit: cocaine.

3. Violated Condition 7 by failing to obey all laws, ordinances or statutory conditions of Conditional Release, in that on or about November 18, 2011, in Dade County, Florida, he did unlawfully use or possess with intent to use, drug paraphernalia, to prepare, test, store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human body a controlled substance.

4. Violated Special Condition 16 which states, "You shall have a mandatory curfew where you shall be confined to your residence during the hours from 10:00 p.m. to 6:00 a.m., except for work, treatment needs and religious and additional activities as verified and approved by your Conditional Release Supervisor," in that on November 18, 2011, at approximately 12:27 a.m, he was not confined to his approved residence, as evidenced by his arrest in Dade County, Florida, Case #F11-30013 [sic].

(see doc. 8 at 3; Ex. 1, sub-exhibit A at A11; Ex. 3, sub-exhibit H).

A revocation hearing was held on January 20, 2012, and February 24, 2012 (Ex. 3, sub-exhibit I). The parole examiner found Petitioner guilty of wilfully and substantially violating the

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terms and conditions of his conditional release as alleged in #2 and #4 supra (he unlawfully possessed or constructively possessed cocaine, and he violated his curfew) (id.). The examiner recommended that Petitioner's supervision be revoked (id.). On April 18, 2012, the FCOR revoked Petitioner's conditional release, effective November 18, 2011, based upon the hearing examiner's determination that Petitioner violated the conditions of his supervision as stated in the hearing report (Ex. 3, sub-exhibit J). The FPC ordered Petitioner returned to FDOC custody and denied Petitioner credit for time on conditional release (id.).

On June 19, 2013, Petitioner filed a counseled petition for writ of habeas corpus in the Circuit Court in and for Leon County, Florida, Case No. 2013-CA-172 (Ex. 1). On October 24, 2013, the state circuit court denied the petition (Ex. 5). On November 20, 2013, Petitioner filed a petition for writ of certiorari in the Florida First District Court of Appeal ("First DCA"), Case No. 1D13-5754, seeking review of the lower court's decision (Ex. 6). On April 2, 2014, the First DCA denied the petition on the merits (Ex. 10). Diaz v. Fla. Parole Comm'n, 136 So. 3d 1217 (Fla. 1st DCA 2014) (Table). The mandate issued April 24, 2014 (id.).

Petitioner filed the instant federal habeas action on January 20, 2015 (doc. 1).

II. STANDARD OF REVIEW

Section 2254(a) of Title 28 provides that "a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court" upon a showing that his custody is in violation of the Constitution or laws of the United States. As the instant petition was filed after April 24, 1996, it is subject to the more deferential standard for habeas review of state court decisions under § 2254 as brought about by the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA). Pub.L. 104-132, § 104, 110 Stat. 1214, 1218-19. In relevant part, section 2254(d) now provides:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

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(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C.A. § 2254 (2002).

The United States Supreme Court explained the framework for § 2254 review in Williams v. Taylor, 529 U.S. 362, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000).4 The appropriate test was described by Justice O'Connor as follows:

In sum, § 2254(d)(1) places a new constraint on the power of a federal habeas court to grant a state prisoner's application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court. Under § 2254(d)(1), the writ may issue only if one of the following two conditions is satisfied—the state court adjudication resulted in a decision that (1) "was contrary to . . . clearly established Federal law, as determined by the Supreme Court of the United States," or (2) "involved an unreasonable application of . . . clearly established Federal law, as determined by the Supreme Court of the United States." Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.

Id., 529 U.S. at 412-13 (O'Connor, J., concurring); Ramdass v. Angelone, 530 U.S. 156, 120 S. Ct. 2113, 2119-20, 147 L. Ed. 2d 125 (2000). In employing this test, the Supreme Court has instructed that on any issue raised in a federal habeas petition upon which there has been an adjudication on the merits in a formal State court proceeding, the federal court should first ascertain the "clearly established Federal law," namely, "the governing legal principle or principles set forth by the Supreme Court at the time the state court render[ed] its decision." Lockyer v. Andrade, 538 U.S. 63, 71-72, 123 S. Ct. 1166, 155 L. Ed. 2d 144 (2003). The law is "clearly established" if Supreme Court precedent at the time "would have compelled a particular result in the case." Neelley v.

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Nagle, 138 F.3d 917, 923 (11th Cir. 1998), overruled on other grounds by Parker v. Head, 244 F.3d 813, 835 (11th Cir. 2001).

Next, the court must determine whether the State court adjudication is contrary to the clearly established Supreme Court case law, either because "'the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases' or because 'the state court confronts a set of facts that are materially indistinguishable from a decision of th[e] [Supreme] Court and nevertheless arrives at a...

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