UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 2:20-cv-14127-KMM

KRIS HELTON, 

Petitioner, 

v. 

FLORIDA COMMISSION ON OFFENDER 

REFIES and MARK S. INCH, as Secretary, 

REVIEW Department of Corrections, 

Respondents. 

 / 

ORDER ON REPORT AND RECOMMENDATION

THIS CAUSE came before the Court upon Petitioner Kris Helton’s (“Petitioner”) Petition 

for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. (“Pet.” or “Petition”) (ECF No. 1). The 

Court referred the matter to the Honorable Shaniek M. Maynard, United States Magistrate Judge, 

who issued a Report and Recommendation recommending that the Petition be DENIED. (ECF 

No. 30). Petitioner filed an objection, (“Objs.”) (ECF No. 31), and Respondents Florida 

Commission on Offender Review (FCOR) and Mark S. Inch (collectively, “Respondents”) 

responded to the Objections (“Objs. Resp.”) (ECF No. 32). The matter is now ripe for review. As 

set forth below, the Court ADOPTS the R&R. 

I. BACKGROUND

On March 17, 1992, a jury found Petitioner guilty of the murder of his fiancée’s 22-monthold child. ECF No 6 at 2. The Indictment charged Petitioner with First Degree Murder, 

specifically that Petitioner “did unlawfully, from a premeditated design, to effect the death of a 

human being, to wit: [minor victim], age 22 months, did kill by inflicting blunt trauma to the head 

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of [minor victim], in violation of Florida Statute 782.04(1)(a).” ECF No. 14-4 at 12. Petitioner 

was sentenced to a term of natural life with a 25-year minimum mandatory sentence. Id. at 10.

After being interviewed by a hearing officer, a panel of commissioners met and established 

Petitioner’s presumptive parole release date (PRRD) as August 1, 2046. Id. at 18–19. Petitioner 

sought administrative review of the PRRD decision, and FCOR found no reason to modify the 

PRRD. Id. at 183. After exhausting state court remedies, Petitioner filed the instant Petition for a 

writ of habeas corpus. ECF No. 1.

II. LEGAL STANDARD

The Court may accept, reject, or modify, in whole or in part, the findings or 

recommendations made by the magistrate judge. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). 

The Court “must determine de novo any part of the magistrate judge’s disposition that has been 

properly objected to.” Fed. R. Civ. P. 72(b)(3). A de novo review is therefore required if a party 

files “a proper, specific objection” to a factual finding contained in the report. Macort v. Prem, 

Inc., 208 F. App’x 781, 784 (11th Cir. 2006). “It is critical that the objection be sufficiently 

specific and not a general objection to the report” to warrant de novo review. Id.

However, a party’s objections are improper if they expand upon and reframe arguments 

already made and considered by the magistrate judge, or simply disagree with the magistrate 

judge’s conclusions. See Melillo v. United States, No. 17-CV-80489, 2018 WL 4258355, at *1 

(S.D. Fla. Sept. 6, 2018); see also Marlite, Inc. v. Eckenrod, No. 10-23641-CIV, 2012 WL 

3614212, at *2 (S.D. Fla. Aug. 21, 2012) (“It is improper for an objecting party to . . . submit [ ] 

papers to a district court which are nothing more than a rehashing of the same arguments and 

positions taken in the original papers submitted to the Magistrate Judge. Clearly, parties are not 

to be afforded a ‘second bite at the apple’ when they file objections to a R & R.”) (quoting 

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Camardo v. Gen. Motors Hourly-Rate Emps. Pension Plan, 806 F. Supp. 380, 382 (W.D.N.Y. 

1992))). 

When the objecting party has improperly objected, or failed to object, to the magistrate 

judge’s findings, “the court need only satisfy itself that there is no clear error on the face of the 

record in order to accept the recommendation.” Fed. R. Civ. P. 72(b) advisory committee’s note 

to 1983 addition; see Lopez v. Berryhill, No. 1:17-CV-24263, 2019 WL 2254704, at *2 (S.D. Fla. 

Feb. 26, 2019) (stating that a district judge must “evaluate portions of the R & R not objected to 

under a clearly erroneous standard of review”).

III. DISCUSSION

The instant Petition alleges that in establishing his PRRD, the FCOR treated Petitioner

more harshly than another inmate, Catherine Freeze, who was also convicted of murdering a child. 

ECF No. 14-4 at 208. The FCOR gave Freeze a PRRD resulting in 34 years of imprisonment 

while Petitioner was given a PRRD resulting in 55 years of imprisonment. ECF No. 6 at 5–8. 

And, Petitioner argues that this “disparate treatment” violates the Equal Protection Clause. See 

generally Pet. 

Generally, to establish a classic equal protection claim, an inmate must demonstrate “that 

‘(1) he is similarly situated with other prisoners who received’ more favorable treatment; and (2) 

his discriminatory treatment was based on some constitutionally protected interest such as race.” 

Jones v. Ray, 279 F.3d 944, 946-47 (11th Cir. 2001) (quoting Damiano v. Fla. Parole & Prob.

Comm’n, 785 F.2d 929, 932-33 (11th Cir. 1986)). Yet, the Supreme Court has also recognized

“class of one” equal protection claims where a plaintiff asserts that he was irrationally

discriminated against on an individual basis, rather than as a member of a particular group. Village

of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). To state a claim of equal protection as a “class 

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of one,” a plaintiff must allege that (1) he is similarly situated to (2) “comparators [who are] prima 

facie identical in all relevant respects,” and that (3) defendants have intentionally treated him 

differently, (4) without any rational basis. See Campbell v. Rainbow City, Ala., 434 F.3d 1306, 

1314 (11th Cir. 2006). Here, Petitioner brings a “class of one” equal protection claim.

As set forth in the R&R, Magistrate Judge Maynard recommended the Court deny the 

Petition. R&R at 19. Magistrate Judge Maynard found that Petitioner’s equal protection claim 

lacks merit for two reasons—namely, Petitioner fails to establish that: (1) he and Freeze are 

similarly situated; and (2) there is no rational basis for his longer PRRD compared to that of Freeze. 

Id. at 18.

Petitioner objects to both of Magistrate Judge Maynard’s findings. First, Petitioner objects 

to Magistrate Judge Maynard’s finding that Petitioner and Freeze are not similarly situated. Objs. 

at 1–6. Specifically, Petitioner argues that Magistrate Judge Maynard “erroneously accepted 

FCOR’s post hoc rationalizations for the disparate treatment.” Id. at 3. And, Petitioner generally 

disagrees with the R&R’s conclusion that he and Freeze are not similarly situated. Id. at 1–6. As 

discussed below, the Court disagrees with Petitioner.

“To be ‘similarly situated’ the comparators must be prima facie identical in all relevant 

respects.” Grider v. City of Auburn, 618 F.3d 1240, 1264 (11th Cir. 2010) (internal quotation 

marks and emphasis omitted). The Eleventh Circuit has frequently noted that “the ‘similarly 

situated’ requirement must be rigorously applied in the context of ‘class of one’ claims.” Leib v. 

Hillsborough Cnty. Pub. Transp. Com’n, 558 F.3d 1301, 1307 (11th Cir. 2009) (citing Douglas 

Asphalt Co. v. Qore, Inc., 541 F.3d 1269, 1275 (11th Cir. 2008)). “The reason that there is a 

similarly situated requirement in the first place is that at their heart, equal protection claims, even 

class of one claims, are basically claims of discrimination.” Griffin Indus., Inc. v. Irvin, 496 F.3d 

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1189, 1207 (11th Cir. 2007) (quotation omitted). “To maintain this focus on discrimination, and 

to avoid constitutionalizing every state regulatory dispute, we are obliged to apply the ‘similarly 

situated’ requirement with rigor.” Id. Thus, “[d]ifferent treatment of dissimilarly situated persons 

does not violate the equal protection clause.” E & T Realty v. Strickland, 830 F.2d 1107, 1109 

(11th Cir. 1987); Campbell, 434 F.3d at 1314. In evaluating the similarly situated requirement, 

the court looks at the state action “in light of the full variety of factors that an objectively 

reasonable governmental decisionmaker would have found relevant in making the challenged 

decision.” Griffin, 496 F.3d at 1203.

Here, the R&R identified several differences between Petitioner and Freeze, supporting the 

finding that Petitioner and Freeze are not similarly situated. R&R at 15. First, the R&R recounted 

the differences between Petitioner and Freeze:

The manner in which Petitioner and Ms. Freeze murdered their victims is different. 

According to the Indictment, hearing officer’s report, and Commission’s decision, 

Petitioner killed his victim by “inflicting blunt trauma” to the head of a 22-monthold child. DE 14-2 at 9; DE 14- 2 at 2 (“The injury was consistent with the child 

either being kicked or stomped in the head.”). The child’s mother – Petitioner’s 

girlfriend – woke to find her child outside lying in the dirt. DE 14-2 at 2. The child 

sustained over 70 abrasions, had multiple contusions and a fractured skull, and died 

of severe head injuries. Id. at 2, 5. Conversely, inmate Freeze shook her 18-monthold child because the child began crying and bit her while Freeze was arguing with 

her boyfriend. DE 14-4 at 208. Freeze shook the child until he began to vomit up 

a piece of pizza he had just eaten. Id. When the child went limp, she tried to revive 

him by hitting him on the back to dislodge the pizza and splashing water on him. 

Id. She then sent her boyfriend’s 8-year-old son to the manager’s office to get help. 

Id. The child was taken to the hospital but ultimately died from Shaking Child

Syndrome. Id. During her parole interview, Freeze said “she lives with what 

happened everyday of her life” and “if she had the education she does now, she 

would have understood what she did was wrong.” Id. at 209.

Id. at 15–16. 

The R&R then concluded that “Petitioner and inmate Freeze are not similarly situated when 

it comes to the brutal and heinous nature of their crimes.” Id. at 16. As the R&R notes, “[t]he 

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record suggests Petitioner inexplicably kicked and/or stomped a child’s head in the middle of the 

night and left the child outside in the dirt. In contrast, inmate Freeze shook a child in a manner 

that caused death, but also tried to revive the child and tried to find others to assist him. Given 

this significant difference, the two inmates are not similarly situated, and Petitioner fails to state a 

class of one equal protection claim.” Id.

Petitioner argues that Magistrate Judge Maynard disregarded Freeze’s separate conviction 

for child abuse and her “continual pattern of horrendous physical abuse towards her child.” Objs. 

at 6. Petitioner also generally argues that Freeze’s murder of her child was more violent than 

described. Id. at 5 (“Ms. Freeze’s child was killed by whiplash shaken infant syndrome, caused 

by Ms. Freeze’s violent shaking of the child, which crushed his brain and caused respiratory 

failure.”). Yet, even considering Freeze’s pattern of child abuse, the Court disagrees with 

Petitioner that he and Freeze are similarly situated.

As discussed in the R&R, Petitioner “was convicted of one crime (murder) which, 

according to the Third District Court of Appeal, resulted in ‘two extremely severe skull fractures’

that ‘would have required at least two strong blows with a blunt object[.].’ Helton, 641 So.2d at 

148-49. Additionally, ‘[a] portion of the child’s brain had been pressed through one of the skull 

fractures, and the child had bled extensively between the skull and the scalp, resulting in the 

perception that the back of the child’s head was soft.’ Id. at 149. The ‘degree of force involved

would have been equivalent to a fall from a three story building, or being struck by a car going 30

miles per hour.’ Id.”

While Petitioner and Freeze both committed heinous act, it cannot be said that the two are 

similarly situated. First, the manner in which Freeze shook and killed her child is not similarly 

situated to the way Petitioner stomped a child’s head in the middle of the night and left the child 

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outside in the dirt. And, importantly, “Freeze attempted to get help for the victim and expressed 

remorse while Petitioner attempted to cover up the crime.” R&R at 17. The Court agrees with 

Magistrate Judge Maynard’s conclusion that Petitioner and Freeze are not similarly situated. 

Accordingly, the Court overrules Petitioners objection.

Next, Petitioner briefly objects to Magistrate Judge Maynard’s finding that the Government 

had a rational basis to treat Freeze and Petitioner differently. Specifically, Petitioner “objects to 

the Magistrate Judge’s recommended rulings on whether [Petitioner] has made out a ‘class of one’

equal protection claim and whether there is a rational basis for FCOR’s disparate treatment.” 

Objs. at 6 (emphasis added). This is the sole time Petitioner mentions the term ‘rational basis’ in 

his objections. However, this argument is not a proper objection because it fails to “specifically 

identify the portions of the proposed findings and recommendation” that Petitioner disputes. 

Macort, 208 F. App’x at 783. A blanket assertion that Petitioner disagrees with the R&R’s 

conclusion will not do. At no point in the Objection does Petitioner dispute any factual finding or 

portion of the R&R’s analysis regarding rational basis. See generally Obj. Accordingly, the Court 

reviews Magistrate Judge Maynard’s findings for clear error.

The Court agrees with the R&R’s findings that “assuming arguendo that Petitioner and 

Freeze are similarly situated, Petitioner fails to establish that there is no rational basis for his longer 

PRRD compared to that of inmate Freeze.” R&R at 18. Namely, “it does not appear that Freeze 

deliberately intended to kill her child by shaking him, while the evidence in Petitioner’s case 

strongly suggests a deliberate act. Moreover, as previously discussed, the evidence in Petitioner’s 

case suggests he tried to conceal his crime while Freeze endeavored to get help and later expressed 

remorse.” Id. These facts, which are germane in determining parole, provide a rational basis for 

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the difference in Petitioner’s PRRD as compared to that of Freeze. The Court finds no clear error 

with Magistrate Judge Maynard’s findings.

IV. CERTIFICATE OF APPEALABILITY

A certificate of appealability shall issue only if the applicant has made a substantial

showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To make such a showing, 

an applicant “must demonstrate that reasonable jurists would find the district court’s assessment 

of the constitutional claims debatable or wrong,” Tennard v. Dretke, 542 U.S. 274, 282 (2004) 

(citation omitted), or that “the issues presented are adequate to deserve encouragement to proceed 

further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Here, Petitioner has not made a 

substantial showing of the denial of a constitutional right. Nor has Movant raised issues that 

reasonable jurists would find debatable. A certificate of appealability is not appropriate here.

V. CONCLUSION

UPON CONSIDERATION of the Petition, the R&R, the Objection, the pertinent portions

of the record, and being otherwise fully advised in the premises, it is hereby ORDERED AND 

ADJUDGED that Magistrate Judge Maynard’s R&R (ECF No. 30) is ADOPTED. Petitioner’s 

Objection (ECF No. 31) is OVERRULED, and the Petition (ECF No. 1) is DENIED. 

The Clerk of Court is INSTRUCTED to CLOSE THIS CASE. All outstanding Motions 

are DENIED AS MOOT.

DONE AND ORDERED in Chambers at Miami, Florida, this _____ day of May 2023. 

K. MICHAEL MOORE

UNITED STATES DISTRICT JUDGE

c: All counsel of record 

31st

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