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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

DAVID BEVERLY, 

Petitioner, 

vs. 5:04CV14-SPM/AK

JACK SAPP, et al., 

Respondents. 

_________________________________/

REPORT AND RECOMMENDATION

This cause is before the Court on Petitioner’s petition for writ of habeas corpus. Doc. 1. 

Respondents have filed their response, Doc. 8, and Petitioner has filed his reply. Doc. 9. Having

carefully considered the matter, the Court recommends that habeas relief be denied. 

BACKGROUND

On April 16, 1975, Petitioner, David Beverly, Jr., was sentenced to two consecutive life

sentences on two counts of robbery in Columbia County, Florida. Doc. 8, Ex. A. On April

3,1979, Petitioner was released from prison to parole supervision, subject to conditions of parole

for life. Doc. 8, Ex. B. His parole was subject to the following conditions:

1. Petitioner was to live in Lake City, Florida and report to the Parole and Probation

Supervisor under Mr. Charles Maxwell..

2. Petitioner was not to change residence or employment or leave the county of

residence without the consent of the Parole and Probation Supervisor. 

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Case No: 5:04cv14-spm/ak

3. On the fifth day of each month, until the final release, Petitioner was to report to

the Parole and Probation Supervisor. 

4. Petitioner was to refrain from excessive use of intoxicants of any kind, was not to

use or possess any narcotic, marijuana, or drugs obtained illegally, and was not to

visit places where intoxicants or drugs were unlawfully sold, dispensed, or used. 

5. Petitioner was to refrain from visiting gambling facilities or associating with

persons of harmful character or bad reputation.

6. Petitioner was to conduct himself in an honorable manner; work diligently at a

lawful occupation; support dependents, if any, to the best of his ability; and live

within his income. 

7. Petitioner was not to own, carry, or have in his constructive possession any

weapons, without first securing the consent of the Parole and Probation

Supervisor, except when specifically authorized by statute. 

8. Petitioner was to live and remain at liberty without violating the law.

9. Petitioner was not to leave the State of Florida without the permission of the

Parole and Probation Supervisor. If permitted to leave, Petitioner did not waive

all extradition rights, process, and proceedings for return.

10. Petitioner was to promptly and truthfully answer all inquires directed to him by

the Commission or by his Parole and Probation Supervisor. 

11. Petitioner was to remain on parole until the Commission decided to release him.

12. Petitioner was to abide by all statutory conditions of parole. 

Id. 

On June 13, 2001, the Florida Parole Commission issued a warrant for Petitioner’s arrest

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because he violated the conditions of his release. Doc. 8, Ex. C. The warrant was issued based

on a violation report filed by his parole officer on June 6, 2001. Doc. 8, Ex. D. The warrant

stated the Petitioner violated Condition Eight of his parole which, as previously noted, states, “I

will live and remain at liberty without violating the law.” Doc. 8, Ex. B. The report charged

Petitioner with violating his parole in the following manner: First, on or before May 11, 2001, in

Suwannee County, Florida, he unlawfully committed the offense of improper exhibition of a

firearm. Doc. 8. Ex. C. Second, on or about May 31, 2001, in Suwannee County, Florida, he

unlawfully committed the offense of aggravated battery with a motor vehicle upon Leslie White

(a.k.a. Leslie Beverly). Id. Third, on or about May 31, 2001, he willfully, maliciously, and

repeatedly followed or harassed Leslie White, by making a credible threat with the intent to

place herin reasonable fear of death or bodily harm. Id. Fourth, on or about May 31, 2001, in

Suwannee County, Florida, he willfully violated an injunction for protection against domestic

violence. Id.

On March 21, 2002, a Florida Parole Commission hearing examiner conducted

Petitioner’s final parole revocation hearing. Doc. 8, Ex. E. Petitioner requested counsel be

appointed for him. Id. In denying that request, the Commission first determined that Petitioner

understood his procedural rights and the allegations against him. Id. It also found that Petitioner

could read, write, and “articulate his thoughts.” Id. It further concluded that Petitioner was not

suffering any from any physical or mental problems, that he could speak effectively for himself,

and that the allegations against him were not complex. Id.

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Without objection, the hearing officer changed the situs of the first two violations to

Columbia County and dismissed the fourth violation. Id. After hearing testimony from

numerous witnesses, the Commission initially found Petitioner not guilty of the first violation,

improper exhibition of a firearm. Id. This finding was based on the fact that the incident was

not reported immediately, and there were inconsistencies in Leslie White’s testimony regarding

the firearm and the fact that it allegedly belonged to her, and she could not, or would not,

produce the firearm. Id.

The Commission did, however, find Petitioner guilty of the second and third violations.

Id. As to the second violation, the Commission credited Deputy David Wingate’s testimony that

he observed both Petitioner’s and Ms. White’s vehicles, and there was of a transfer of paint

between the vehicles. Id. Additionally, the Commission found that Ms. White’s testimony

revealed the Petitioner tried to pull in front of her, and when she went around him, he ran into

her vehicle. Id.

With regard to the third allegation, the Commission found that, Petitioner, after seeing

Ms. White in Live Oak, called White’s cell phone and left her messages that he would kill her. 

Id. Thus, on May 22, 2002, the Parole Commission entered its order revoking Petitioner’s 

parole. Doc. 8, Ex. F. 

On July 15, 2002, Petitioner filed a petition for writ of habeas corpus in state court asking

the court to set aside the revocation of his parole and order his release from incarceration for

three reasons. Doc. 8, Ex. G. First, Petitioner alleged that he was being held prisoner in the

Florida Department of Corrections in violation of his state and federal statutory and

constitutional rights. Id. Second, Petitioner alleged that the Commission abused its discretion in

revoking his parole because he was not convicted of any underlying criminal offense. Doc. 8,

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1

Respondents failed to attach a complete copy of the state court habeas petition, see Doc.

8, Ex. G; therefore, the Court refers to the copy attached to Petitioner’s reply.

Case No: 5:04cv14-spm/ak

Ex. H. Petitioner advised the court that his request for counsel was denied and attached letters to

the Commission specifically requesting appointment of counsel, but he did not submit further

argument in that regard. Doc. 9, Ex. A.1 

On January 27, 2003, the state court denied his habeas petition, finding that the charges

were proven by a preponderance of the evidence based on the sworn testimony of Ms. White and

Deputy Wingate at the Petitioner’s parole violation hearing. Id. Furthermore, the court found

that the fact that the criminal charges were nolle prossed provided “no basis for concluding that

the Commission abused its discretion in finding violations of conditions of parole based on the

same circumstances.” Id. Rather, all that was required was “evidence that the parolee

committed the behavior complained of or which constituted the crime.” Id. 

Petitioner then filed a petition for writ of certiorari with the court of appeal, raising four

issues. Doc. 8, Ex. I. First, Petitioner claimed that the writ for habeas corpus was summarily

denied without the benefit of a full and fair evidentiary hearing. Id. Second, he charged that the

circuit court erred in issuing the order because the circuit court’s determination was not based on

“competent substantial evidence.” Id. Third, he maintained that the Commission improperly

denied him an attorney in a “very complicated case” after he specifically requested counsel. Id.

Finally, Petitioner argued that the lower court did not afford him “full and fair review” of the

Florida Parole Commission’s decision. Id. Therefore, in his view, he was denied due process. 

Id. 

On November 5, 2003, the court of appeal denied the petition without written opinion. 

Doc. 8, Ex. J. The instant petition ensued. Doc. 1. On this occasion, Petitioner claims that the

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Commission deprived him of due process and abused its discretion when if revoked his parole.

Id. More specifically, Petitioner charges (1) that he was improperly denied assistance of

counsel during the revocation hearing, which for him was a “complicated proceeding”; (2) that

the Commission’s decision was based on “incompetent and insubstantial evidence”; (3) that the

failure of the lower court to issue an “independent opinion” and to conduct an evidentiary

hearing violated state law. Id. at 20-21 of 33.

On March 24, 2004, Respondents filed an answer to Petitioner’s petition for writ of

habeas corpus in this court. Doc. 8. Respondents concede Petitioner has exhausted his state

court remedies regarding the revocation of his parole. Doc. 8 at 4. Respondents contend,

however, that Petitioner has failed to state a either a constitutional or statutory claim under

federal law. Id.

DISCUSSION

Under 28 U.S.C. § 2254, a federal court may grant habeas corpus relief only if the state

court adjudication

(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. § 2254(d).

Under the “contrary to” clause of § 2254(d), “a federal habeas court may grant the writ if

the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a

question of law or if the state court decides a case differently than [the Supreme] Court has on a

set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412-13 (2000). “A

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state-court decision will certainly be contrary to...clearly established precedent if the state court

applies a rule that contradicts the governing law set forth in [Supreme Court] cases.” Williams,

529 U.S. at 405. A state-court decision will also be contrary to clearly established Supreme

Court precedent “if the state court confronts a set of facts that are materially indistinguishable

from a decision of [the Supreme Court] and nevertheless arrives at a result different from [the

Court’s] precedent.” Id. at 406. 

Under the “unreasonable application” clause of § 2254(d), “a federal habeas court may

grant the writ if the state court identifies the correct governing legal principle from [Supreme

Court] decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id.

at 413. The federal court considering a habeas petition “may not issue the writ simply because

that court concludes in its independent judgment that the relevant state-court decision applied

clearly established federal law erroneously or incorrectly. Rather, that application must also be

unreasonable.” Id. at 412.

Further, in reviewing the decision of the state court, this Court must presume that the

state court’s factual determinations are correct, and the petitioner bears the burden of rebutting

the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). The

fact that the state court did not write “an opinion that explains the state court’s rationale,” does

not detract from the deference owed to that court’s decision. Wright v. Secretary for the

Department of Corrections, 278 F.3d 1245,1255 (11th Cir. 2002).

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To the extent that Petitioner’s claims are based purely on state law, habeas relief is

unavailable since this Court is “limited to deciding whether a conviction violated the

Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 68 (1991).

Further, to the extent that Petitioner claims any federal due process violations related to

his parole revocation hearing, the petition is without merit. The law regarding the due process

accorded to a parolee or probationer in a revocation proceeding is clearly established in certain

particulars. For example, the following minimum requirements of due process must be provided:

(a) written notice of the claimed violations of parole; (b) disclosure to the parolee

of evidence against him; (c) opportunity to be heard in person and to present

witnesses and documentary evidence; (d) the right to confront and cross-examine

adverse witnesses (unless the hearing officer specifically finds good cause for not

allowing confrontation); (e) a ‘neutral and detached’ hearing body such as a

traditional parole board, members of which need not be judicial officers or

lawyers; and (f) a written statement by the factfinders as to the evidence relied on

and reasons for revoking parole.

Morrissey v. Brewer, 408 U.S. 471, 488-89 (1972). “These requirements in themselves serve as

substantial protection against ill-considered revocation.” Gagnon v. Scarpelli, 411 U.S. 778, 787

(1973). The Commission adhered to all of these requirements, and thus, there was no due

process violation in the Commission proceedings. A revocation hearing does not “equate...to a

criminal prosecution in any sense,” Morrissey, 408 U.S. at 489, and thus, the full panoply of

rights afforded to the criminal defendant are not afforded to one facing revocation. Petitioner

was afforded notice and hearing in accord with Morrissey and Gagnon, and there is nothing in

the record to suggest that the state habeas court ignored the mandates of the Supreme Court in

those cases. 

Furthermore, it is clearly established that although due process does not require the

appointment of counsel in every parole revocation proceeding,

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counsel should be provided in cases where, after being informed of his right to

request counsel, the...parolee makes such a request, based on a timely and

colorable claim (i) that he has not committed the alleged violation of the

conditions upon which he is at liberty; or (ii) that, even if the violation is a matter

of public record or is uncontested, there are substantial reasons which justified or

mitigated the violation and make revocation inappropriate, and that the reasons

are complex or otherwise difficult to develop or present. In passing on a request

for the appointment of counsel, the responsible agency also should consider,

especially in doubtful cases, whether the probationer appears to be capable of

speaking effectively for himself.

Gagnon, 411 U.S. at 790-91. The hearing officer clearly delineated his reasons for denying

counsel, and there is nothing before the Court to impugn those reasons. Despite Petitioner’s

protestations to the contrary, the revocation proceeding was not complicated, as it involved, for

the most part, a determination of credibility of the primary witness against Petitioner, his exwife, and the investigating officer.

CONCLUSION

Having carefully considered the matter, the Court finds that Petitioner did not suffer any

federal due process violations during his parole revocation proceedings, and therefore, it is

respectfully RECOMMENDED that Petitioner’s petition for writ of habeas corpus, Doc. 1, be

DENIED, and this cause be DISMISSED WITH PREJUDICE.

IN CHAMBERS at Gainesville, Florida, this 27th day of July, 2006.

s/ A. KORNBLUM 

ALLAN KORNBLUM

UNITED STATES MAGISTRATE JUDGE

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NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and recommendations

within 15 days after being served with a copy of this report and recommendation. A party may

respond to another party’s objections within 10 days after being served with a copy thereof. Failure

to file specific objections limits the scope of review of proposed factual findings and recommendations.

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