Tooma v. Florida Parole Com'n

• Decision Date: 10 April 2009
• Docket Number: No. 08-CIV-22024.,08-CIV-22024.
• Citation: 612 F.Supp.2d 1255
• Parties: Joseph TOOMA, Plaintiff, v. FLORIDA PAROLE COMMISSION, Defendant.
• Court: U.S. District Court — Southern District of Florida

612 F.Supp.2d 1255

Joseph TOOMA, Plaintiff, v. FLORIDA PAROLE COMMISSION, Defendant.

No. 08-CIV-22024.

United States District Court, S.D. Florida.

April 10, 2009.

Joseph Tooma, Miami, FL, pro se.

Kim Michelle Fluharty, Florida Department of Financial Services, Theodore Allen Avellone, Florida Parole Commission, Tallahassee, FL, for Defendant.

ORDER

WILLIAM M. HOEVELER, District Judge.

THIS CAUSE comes before the Court upon the plaintiff's objections to the Final Report of the Magistrate Judge, recommending dismissal of the plaintiffs complaint. The Court has reviewed the Report, plaintiffs objections, and pertinent portions of the record. For the reasons that follow, the Magistrate's Report is ADOPTED, as modified by this order.

Background

Joseph Tooma is a Florida inmate serving a life sentence. His "Presumptive Parole Release Date" (PPRD) was November 21, 2007. On August 14, 2007, the Florida Parole Commission received a letter from the Chief Judge of Florida's Ninth Judicial Circuit objecting to Tooma's parole. On November 14, 2007, the Parole Commission decided not to authorize parole and extended Tooma's PPRD by four years, based on the judicial objection. Tooma filed this pro se complaint under the Civil Rights Act, 42 U.S.C. § 1983, on July 17, 2008, challenging the constitutionality of the procedures used in determining his parole eligibility. Tooma contends that the Florida statute requiring the Commission to solicit "ex parte" input from the sentencing judge violates due process, because Tooma was not given an opportunity to rebut the judge's comments, and constitutes ex post facto punishment, because the procedure did not exist when Tooma committed the crime.¹ As relief, Tooma seeks greater transparency in the parole decision-making process and an injunction requiring the Parole Commission to reconsider his parole eligibility without relying on the judicial objection.

Although Tooma filed this lawsuit under 42 U.S.C. § 1983, the Magistrate Judge concluded that Tooma is seeking only habeas corpus-type relief and converted the complaint to a petition under 28 U.S.C. § 2241. In his objections, Tooma claims that the Magistrate Judge erred in construing his complaint as a habeas corpus petition, based on the holding of Wilkinson v. Dotson, 544 U.S. 74, 125 S.Ct. 1242, 161 L.Ed.2d 253 (2005).

I.

The Supreme Court instructs that a civil rights action under § 1983 is an appropriate vehicle to challenge the conditions of confinement, but not the fact or duration of confinement. Preiser v. Rodriguez, 411 U.S. 475, 498-99, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). To challenge the fact or duration of confinement, a state prisoner must seek either the appropriate relief in state court or habeas corpus relief under 28 U.S.C. § 2241. If the state prisoner is "in custody pursuant to the judgment of a State court," his habeas petition is subject to the additional requirements of 28 U.S.C. § 2254. See Medberry v. Crosby, 351 F.3d 1049 (11th Cir.2003).

Following the Supreme Court's decision in Wilkinson v. Dotson, 544 U.S. 74, 125 S.Ct. 1242, 161 L.Ed.2d 253 (2005), courts have considered whether inmate challenges to parole proceedings are properly taken up under § 1983 or the habeas corpus statutes. In Wilkinson, the inmate filed a § 1983 action to challenge the state procedures used to deny him parole. He claimed the Ohio Parole Board used an improper set of guidelines in its decision making. Wilkinson, 544 U.S. at 76-77, 125 S.Ct. 1242. The Wilkinson Court held that the prisoner could pursue the claim under § 1983 because success for the inmate "means at most a new parole hearing at which Ohio parole authorities may, in their discretion, decline to shorten his prison term." Id. at 82, 125 S.Ct. 1242. Tooma likewise challenges the procedures used by the Florida Parole Commission to deny his parole. He claims that the Commission's reliance on the objection from a state court judge was unconstitutional and he wants his parole eligibility reevaluated.

II.

Florida law provides that "once set, presumptive parole release dates be modified only for good cause in exceptional circumstances." Fla. Stat. § 947.173(3). If an inmate's institutional conduct has been satisfactory, several factors may nevertheless constitute "new information and good cause in exceptional circumstances" to extend the inmate's PPRD. Fla. Stat. § 947.1745. In Tooma's case, the Parole Commission's November 15, 2007 denial of parole form lists two pieces of "New Information" as a basis for modifying the PPRD: Tooma's unsatisfactory parole release plan and an objection from the state judge.²

If an inmate's parole release plan is unsatisfactory, the Commission may extend his PPRD by up to a year. Fla. Stat. § 947.1745(2). On the other hand, if there is an objection to parole by the sentencing judge (or the designee of the Chief Judge of the appropriate Florida Circuit Court, if the sentencing judge is no longer serving), the Commission "may schedule a subsequent review within 2 years, extending the presumptive parole release date beyond that time." Fla. Stat. § 947.1745(6). The Commission scheduled Tooma's next review for June 2009 and re-set his PPRD to November 2012. Although the Commission's only stated basis for extending Tooma's PPRD by four years was the judge's objection, the invalidity of the judicial comment statute would not necessarily spell earlier release for Tooma. Nothing would prevent the Parole Commission, upon rehearing the case, from relying on "Unsatisfactory Institutional Conduct" or "Fail[ure] to make a positive finding as required by s. 947.18" as alternative reasons for extending Tooma's PPRD by the same duration.³ Thus, even if Tooma prevailed in his constitutional challenge, the Commission could, in its discretion, reach the very same result simply by finding Tooma unsuitable for parole.

Despite certain comments in Tooma's legal memoranda suggesting that he believes he is entitled to earlier parole no matter what, the only relief he actually seeks in his complaint is more transparency in the Commission's decision-making process and to be evaluated under the parole eligibility procedures that existed when he was convicted, regardless of the outcome. This does not lie at "the core of habeas corpus," and may be brought in a § 1983 action. Preiser, 411 U.S. at 489, 93 S.Ct. 1827; Wilkinson, 125 S.Ct. at 1248. Courts have held that § 1983 is the proper statutory vehicle to assert similar challenges to parole procedures. See Thomas v. McDonough, 228 Fed.Appx. 931 (11th Cir.2007) (ex post facto challenge to Florida law extending the time between parole reviews); Brown v. Johnson, 169 Fed. Appx. 155 (4th Cir.2006) (claim that parole was denied based on improper standard of review); see also Craft v. David, 2008 WL 681031 (N.D.Fla.2008) (evaluating inmate's due process and ex post facto challenge to Florida's judicial comment provision under § 1983); Lesley v. David, 186 Fed.Appx. 926, 929 n. 1 (11th Cir.2006) (noting that § 1983 is the appropriate avenue for inmate challenge to new parole guideline that resulted in extension of parole release date).

III.

Notwithstanding the merit to Tooma's objection, dismissal is unavoidable whether his complaint is viewed under 42 U.S.C. § 1983 or 28 U.S.C. § 2254. To obtain relief under either statute, an inmate must state a constitutional violation. As discussed in the Magistrate's Report, courts have squarely rejected constitutional challenges to Florida's judicial comment statute. See Craft v. David, 2008 WL 681031, *7 (N.D.Fla.2008). Because the Magistrate correctly concluded that the parole procedure at issue does not violate Tooma's due process rights or constitute ex post facto punishment, Tooma is precluded from relief under § 1983 as a matter of law. See generally Hunter v. Florida Parole & Probation Comm'n, 674 F.2d 847 (11th Cir.1982) (rejecting due process challenge to parole procedure); Paschal v. Wainwright, 738 F.2d 1173 (11th Cir.1984) (rejecting ex post facto challenge to parole procedure that "merely made a procedural change in how the [Parole Board's ultimate discretion about granting parole] was exercised").

Although Mr. Tooma's November 2008 PPRD had been set for some years and periodically reviewed without modification, the Commission was within its discretion to extend that date based on judicial input. In this case, the Chief Judge of Florida's Ninth Judicial Circuit, standing in for the judge who sentenced Tooma some 20 years ago, for an armed robbery committed in 1983, commented, in entirety, "[t]his inmate has a long history of crime of violence. There is a strong likely hood [sic], if released he will re-offend and more than likely kill someone." The Parole Commission was apparently impressed by the Chief Judge's prediction that a 79-yearold man with no citations for violent conduct in prison (since at least 1996, the earliest records provided to the Court), and no record of having homicidal tendencies, would "more than likely" commit murder if released.⁴ Florida law gives the Parole Commission discretion to rely on the Chief Judge's evaluation of the facts and circumstances of Mr. Tooma's case in addition to, or as the case may have been, in place of its own.

Accordingly,

IT IS ORDERED: The Final Report of the Honorable Magistrate Judge Patrick A. White is ADOPTED, as modified by this Order. The plaintiffs complaint for relief under 42 U.S.C. § 1983 is DIMISSED, for failure to state a constitutional violation under any theory, as discussed in the Magistrate's Report. This case is CLOSED.

REPORT OF MAGISTRATE JUDGE

P.A. WHITE, United States Magistrate Judge.

Joseph Tooma, a state prisoner currently confined at the Everglades Correctional Institution, has filed a pro se pleading on the standard form for actions pursuant to 42 U.S.C. § 1983 challenging the actions of the Florida Parole Commission ("FPC") regarding his release on parole seeking...