Suggs v. Fla. Parole Comm'n, CASE NO. 14-60310-Civ-GAYLES

CourtUnited States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
Writing for the CourtMAGISTRATE JUDGE P.A. WHITE
PartiesEUGENE SUGGS, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
Docket NumberCASE NO. 14-60310-Civ-GAYLES
Decision Date02 December 2014

EUGENE SUGGS, Petitioner,
v.
FLORIDA PAROLE COMMISSION, Respondent.

CASE NO. 14-60310-Civ-GAYLES

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

December 2, 2014


MAGISTRATE JUDGE P.A. WHITE

REPORT OF MAGISTRATE JUDGE

I. Introduction

Eugene Suggs, a state prisoner confined at Dade Correctional Institution, Florida City, Florida, has filed a pro se petition for writ of habeas corpus challenging the Florida Parole Commission's revocation of his conditional release supervision, and his subsequent confinement.

This Cause has been referred to the undersigned for consideration and report pursuant to 28 U.S.C. §636(b)(1)(B) and Rules 8 and 10 of the Rules Governing Section 2241 Cases in the United States District Courts.

For its consideration of this petition (DE#1), the Court has the response with multiple exhibits from the Florida Parole Commission (DE#8) to this court's order to show cause, and the petitioner's reply thereto (DE#11).

II. Procedural History

The pertinent procedural history of this case is as follows. Petitioner has a long incarcerative history that began with a 1974

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armed robbery conviction, entered in Broward County Circuit Court, for which he was sentenced to 20 years in prison.1 He was next convicted in 1986 for resisting an officer with violence in Broward County Circuit Court, case no. 86-06224, and sentenced to a total of 1 year and 1 day in prison. In 1987, he was convicted of aggravated battery, shooting or throwing a deadly missile into a building or vehicle, and felon in possession of a firearm, in Broward County Circuit Court, case no. 87-08124, and sentenced to a total of 5 years and 6 months in prison. Finally, in 1996 petitioner was convicted for second degree murder and sentenced to 22 years in prison, in Broward County Circuit Court, case no. 93-10611. (DE#8:Ex.A).

On May 17, 2004, petitioner was first granted conditional release as to the 1996 second degree murder conviction referenced above. See Florida Parole Commission Certificate of Conditional Release and Terms and Conditions of Supervision. (DE#8:Ex.B5-B9). Petitioner was instructed as to the various terms and conditions of conditional release on that date, but he refused to execute the form, as noticed by the witness who executed the form. (Id.:B8-B9). Petitioner should have remained on conditional release supervision until June 13, 2015. (Id:B2,B5).

However, on September 8, 2005, petitioner violated the terms of his conditional release by not complying with his mandatory curfew which required that he be confined to his residence from the hours of 7:00 p.m. to 7:00 a.m., except for work/treatment purposes. (DE#8:Ex.C1). As a result, on September 13, 2005, a Violation Report was issued charging petitioner with violating the terms of his conditional release supervision. (Id.). A Warrant was

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issued, directing that petitioner be taken into custody and detained for a violation hearing. (Id.:C3).

On October 20, 2005, a conditional release hearing was held, at which time it was determined that petitioner was ineligible for release on his own recognizance based on his conditional release violation. (Id.:C4-C5). At that time, petitioner was advised of, but waived his right to be represented by an attorney, and admitted to violation of the mandatory curfew condition of his release supervision. (See DE#8:Ex.C6-Conditional Release Violation Hearing Worksheet). At that hearing, exhibits were introduced, which included the certificate of conditional release, the September 15, 2005 warrant, and the September 13, 2005 violation report. (Id.:C7). No direct testimony was taken due to the petitioner's admission of guilt as to the charged violation. (Id.:C7,C11).

Regarding mitigating circumstances, petitioner stated he was not feeling well, and left the residence to go to Walgreen's to purchase medicine. (Id.:C8). He claims his former girlfriend, Andrea Rolle, lied about his whereabouts at the time. (Id.). When asked why Andrea had not gone out to purchase petitioner's medication, petitioner explained that they were in a fight, and she would have refused to go. (Id.). He also stated he did not keep the receipt for the purchase he made that day. (Id.). When given an opportunity to provide the examiner with a final statement, petitioner responded by challenging the amount of time he had already served, and added that the imposition of a curfew was unfair as it limited his employment opportunities. (Id.).

At the conclusion of the hearing, the parole examiner recommended that the petitioner's conditional release be revoked, given petitioner's own admission that he violated condition 19 of

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the terms of his conditional release regarding his curfew, showed no remorse, nor did he accept responsibility for his actions. (Id.:C6-C7,C9-C10).

On December 14, 2005, a Revocation of Conditional Release Order was entered by the Florida Parole Commission, finding that petitioner had violated Special Condition 19, concerning mandatory curfew, on September 8, 2005 at 8:45 p.m. The order directed that petitioner be returned to the Florida Department of Corrections ("FDOC") to remain until completion of his sentence or until further order of the Parole Commission. (Id.:C16). The FDOC Corrections Offender Network, on-line database reveals petitioner was received in-custody on November 2, 2005.

Petitioner then filed a petition for writ of mandamus with the Leon County Circuit Court, challenging the structure of his sentence upon revocation of his conditional release supervision, in terms of the gain time initially awarded, then forfeited, and the lack of street time credit. By lengthy, detailed order entered on September 23, 2009, the trial court denied the mandamus petition, finding the FDOC had properly applied the correct amount of basic gain time to petitioner's conditional release supervision, further declaring that the amount of forfeited gain time was also accurately calculated. (DE#8:Ex.D). The court also found petitioner was not entitled street time credit. (Id.). Certiorari review was subsequently per curiam denied on the merits by the Florida First District Court of Appeal on January 12, 2011. (Id.).

Meanwhile, on June 5, 2012, the petitioner once again became eligible for conditional release. (DE#8:Ex.E). As a result, on July 24, 2012, petitioner was granted conditional release as to the 1996 second degree murder conviction referenced above. See Florida

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Parole Commission Certificate of Conditional Release and Terms and Conditions of Supervision entered August 20, 2012. (DE#8:Ex.E). Petitioner was instructed as to the various terms and conditions of conditional release on that date, and executed the Certificate, acknowledging receipt of the reporting instructions, terms and standard conditions of release, along with the special conditions of release. (Id.:E5-E8).

On October 28, 2012, petitioner again violated the terms of his conditional release by not complying with his mandatory curfew which required that he be confined to his residence from the hours of 7:00 p.m. to 7:00 a.m., except for work/treatment purposes. (DE#8:Ex.F1). On October 29, 2012, petitioner left his probation officer a message regarding the curfew violation, stating that he had been at home, in the backyard, with his dog. (Id.:F2). Nevertheless, on October 31, 2012, a Violation Report was issued charging petitioner with violating the terms of his conditional release supervision. (Id.). A Warrant was issued, directing that petitioner be taken into custody and detained for a violation hearing. (Id.:F4).

On January 8, 2013, a conditional release hearing was held, at which time it was determined that petitioner was ineligible for release on his own recognizance based on his conditional release violation. (Id.:G1-G2). At that time, petitioner was advised of, and requested, but was denied the right to have an attorney appointed. (Id.:G8). At the hearing exhibits were introduced, which included the certificate of conditional release, warrant, violation report, and denial of appointment of counsel. (Id.). Testimony was taken from the petitioner, the petitioner's mother-Evelyn Suggs, the petitioner's nephew-Brian Keith Smith, and Mechelle Campbell-the FDOC Probation Specialist. (Id.:G10-G11).

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Petitioner testified that on the date and time of the charged violation he had been outside in his backyard playing with his dog when Probation Specialist Campbell came by the house. Petitioner explained that when he came back inside, his mother told him that Campbell had come by. (Id.:G10). As a result, he tried calling her on the phone, but could not "get through" to leave a message because it kept repeating "sorry, goodbye." (Id.). When questioned by the examiner, petitioner stated that his mother would not have been able to see the entire backyard from the back door. He states his mother would have been required to either go outside or possibly look through his bedroom window to see that he was in an area of the backyard not visible from the back door. (Id.).

Probation Specialist Campbell testified that she was in charge of supervising petitioner, and as such, on October 28th, 2012, at 9:39 p.m., she went to petitioner's residence. (Id.:G10). As she was pulling up, she observed a grey, Ford F150 truck leaving the residence, and believed, although she could not state for certain, that the...

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