Nelson v. Florida Parole Comm'n, Case No. 5:09cv218/RS/EMT

CourtU.S. District Court — Northern District of Florida
Writing for the CourtELIZABETH M. TIMOTHY
PartiesOSCAR DOUGLAS NELSON, JR., Petitioner, v. FLORIDA PAROLE COMMISSION, et al., Respondents.
Decision Date03 October 2011
Docket NumberCase No. 5:09cv218/RS/EMT

OSCAR DOUGLAS NELSON, JR., Petitioner,
v.
FLORIDA PAROLE COMMISSION, et al., Respondents.

Case No. 5:09cv218/RS/EMT

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA PANAMA CITY DIVISION

Dated: October 3, 2011


REPORT AND RECOMMENDATION

This cause is before the court on Petitioner's petition for writ of habeas corpus filed under 28 U.S.C. § 2254 (doc. 1). The Florida Parole Commission ("Parole Commission") filed an answer and relevant portions of the state court record (doc. 15). Petitioner filed a reply (doc. 19).1

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, 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 established by the state court record (see doc. 15, exhibits).2 Petitioner's history with the Parole Commission began with

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his commitment to the Florida Department of Corrections ("FDOC") for robbery in 1972 (Ex. A). He was sentenced to life in prison (id.). Petitioner's first grant of parole was on July 31, 1979, subject to terms and conditions of parole for life (Ex. B at 30-31). On July 10, 1991, the Parole Commission issued an order finding Petitioner guilty of violating the terms and conditions of his parole, but the Commission restored him to supervision (id. at 32). On July 7, 1993, the Parole Commission issued an order finding Petitioner guilty of violating the terms and conditions of his parole and revoked his parole (id. at 34). Petitioner was ordered into the custody of the FDOC (id. at 34-36).

On August 14, 2001, Petitioner was released on parole subject to terms and conditions of parole for life (Ex. B at 37-38). On August 23, 2007, the Parole Commission issued a Warrant for Retaking Parole Releasee, based upon Petitioner's arrest for battery-domestic violence (Ex. C at 40-43). On August 29, 2007, Petitioner was served with a Notice of Preliminary Hearing, advising him that he was charged with violating the conditions of his parole as follows:

Violated Condition 7 by failing to obey all laws, ordinances or statutory conditions of Parole, in that on or about August 15, 2007, in Hillsborough County, Florida, he did unlawfully touch, strike or cause bodily harm to Danielle Yvonne Flowers, against the will of said victim.

(Ex. D at 47-48). A preliminary hearing was held on October 26, 2007 (see id. at 52-57). The parole examiner found probable cause that a violation of supervision occurred, and recommended a final hearing (id. at 57-69).

A final revocation hearing was held on January 17, 2008 (see Ex. D at 76-82). The hearing examiner found Petitioner guilty of a willful and substantial violation of Condition 7, as described supra, and recommended revocation of Petitioner's parole and his return to prison (id.). The Parole Commission revoked Petitioner's parole based upon the determination of the hearing examiner that he violated condition 7 of his parole by "failing to obey all laws, ordinances or statutory conditions of Parole, in that on or about August 15, 2007, in Hillsborough County, Florida, he did unlawfully touch, strike or cause bodily harm to Danielle Yvonne Flowers, against the will of said victim" (Ex. E). This revocation is the subject of the instant federal habeas action.

Petitioner sought review of the Parole Commission's decision in the Florida courts by filing a petition for writ of habeas corpus in the Circuit Court in and for Gulf County, Florida, Case No.

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08-229-CA (Ex. F). On October 6, 2008, the state court denied the petition (Ex. L). Petitioner sought review of the decision by filing a petition for writ of certiorari in the Florida First District Court of Appeal, Case No. 1D08-5144 ("First DCA") (Ex. M). The First DCA denied the petition on the merits on April 6, 2009, with the mandate issuing May 22, 2009 (Exs. Q, T). Nelson v. Florida Parole Comm'n, 7 So. 3d 1102 (Fla. 1st DCA 2009) (Table).

Petitioner filed the instant federal habeas action on June 23, 2009 (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
(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).3 The appropriate test was described by Justice O'Connor as follows:

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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. 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] reme Court and nevertheless arrives at a result different from [Supreme Court] precedent.'" Lockyer, 538 U.S. at 73 (quoting Williams, 529 U.S. at 405-06). The Supreme Court has clarified that "[a]voiding these pitfalls does not require citation to our cases—indeed, it does not even require awareness of our cases, so long as neither the reasoning nor the result of the state-court decision contradicts them."

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Early v. Packer, 537 U.S. 3, 8, 123 S. Ct. 362, 365, 154 L. Ed. 2d 263 (2002) (quoting Williams, 529 U.S. at 405-06). If the State court decision is found in either respect to be contrary, the district court must independently consider the merits of the petitioner's claim.

If on the other hand, the State court applied the correct Supreme Court precedent and the facts of the Supreme Court cases and the petitioner's case are not materially indistinguishable, the court must go to the third step and determine whether the State court "unreasonably applied" the...

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