United States District Court 

for the 

Southern District of Florida 

Rodney Calvin McCutcheon, 

Petitioner 

v. 

Florida Commission on 

Offender Review, 

Respondent. 

) 

) 

) 

) 

) Civil Action No. 22-14327-Scola 

Order on Petition for Writ of Habeas Corpus 

 Before the Court is Petitioner, Rodney Calvin McCutcheon’s pro se 

petition for writ of habeas corpus under 28 U.S.C. § 2254,1 (ECF No. 1) and 

memorandum of law (ECF No. 1-1) alleging violations of his constitutional 

rights by Respondent, Florida Commission on Offender Review (“the 

Commission”). 

 The Respondent filed a response (ECF No. 11) and an index to appendix 

(ECF No. 11-2) with attached exhibits 1–29 (ECF Nos. 11-3–11-31). The 

Petitioner thereafter filed a reply (ECF No. 15). The Court has carefully reviewed 

the parties’ written submissions, the record, and applicable law. For the 

following reasons, the petition is denied. 

1. Background 

On November 1, 1972, the Petitioner was convicted of Rape in Broward

County Case No. F72-23029 and sentenced to life imprisonment. (See ECF No. 

11-10 at 33–35).2 He was paroled on May 20, 1980, for a term of life supervision. 

(See id. at 40). 

1 The petition is governed by both 28 U.S.C. § 2254 and 28 U.S.C. § 2241. See Thomas 

v. Crosby, 371 F.3d 782, 787 (11th Cir. 2004) (holding that a petition was subject to 

both § 2241 and § 2254 even though petition stated it was filed pursuant to § 2241 and 

did not collaterally attack petitioner's state court conviction but instead attacked a 

decision of the state parole commission).

2 The Court uses the pagination generated by the electronic CM/ECF database, which 

appears in the headers of all court filings. 

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 The Petitioner was charged with violating parole in 1987 and 1989 but 

was restored to parole both times when the Commission found no probable 

cause or reasonable grounds to believe he had violated his parole to the degree 

that revocation of release would be required by the Commission. (See id. at 43–

46). Upon his third violation in 1990 for a new law violation for grand theft and 

a conviction for dealing in stolen property, the Commission revoked parole on 

March 14, 1990. (See id. at 48–52). 

 On November 1, 2017, the Commission completed the Petitioner’s most 

recent extraordinary review. (See id. at 100–03). The Commission was unable to 

make a positive parole prognosis, the Petitioner’s Presumptive Parole Release 

Date (“PPRD”) remained suspended, and the Commission scheduled the 

Petitioner’s next interview for “within 7 years rather than within 2 years from 

[the Petitioner’s] last interview based on [his] conviction/sentence for Rape and 

the Commission’s finding that it is not reasonable to expect [the Petitioner] will 

be granted parole during the following years.” (Id. at 100). The Commission 

found that parole release during the following years was not reasonable to 

expect based on: (1) physical and psychological trauma to the victim, (2) 

unreasonable risk to others, and (3) the Petitioner’s status as a parole violator. 

(See id.). 

 On July 26, 2018, the Petitioner filed a petition for writ of habeas corpus 

in state court raising the same claims as the instant federal petition. (See ECF 

No. 11-4 at 2–16). On November 12, 2021, the state circuit court denied the 

petition and the Petitioner’s subsequent appeals were unsuccessful. (See ECF 

No. 11-14 at 2–16). 

 The instant petition was filed on September 2, 2022.3 

 2. Legal Standard 

 Federal habeas relief is available to correct only constitutional injury. See 

28 U.S.C. §§ 2241(c)(3), 2254(a); see also Estelle v. McGuire, 502 U.S. 62, 67–68 

3 “Under the ‘prison mailbox rule,’ a pro se prisoner’s court filing is deemed filed on the 

date it is delivered to prison authorities for mailing.” Williams v. McNeil, 557 F.3d 1287, 

1290 n.2 (11th Cir. 2009).

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(1991) (“[I]t is not the province of a federal habeas court to reexamine statecourt determinations on state-law questions.”); Barclay v. Florida, 463 U.S. 

939, 957–58 (1983) (“[M]ere errors of state law are not the concern of this 

court, unless they rise for some other reason to the level of a denial of rights 

protected by the United States Constitution.”). This holds true even “when a 

petition, which actually involves state law issues, is couched in terms of equal 

protection and due process.” Branan v. Booth, 861 F.2d 1507, 1508 (11th Cir. 

1988) (cleaned up). 

 Furthermore, “[t]here is no constitutional right to parole in Florida. . . . 

The decision if and when to parole an inmate is left to the discretion of the 

Commission guided by its own administrative rules.” Jonas v. Wainwright, 779 

F.2d 1576, 1577 (11th Cir. 1986). Also, “[t]here is no liberty interest in the 

calculation of Florida’s ‘presumptive parole release date’ even though it is 

binding on the Commission, because the ultimate parole decision is a matter of 

Commission discretion.” Walker v. Fla. Parole Comm’n, 299 F. App’x 900, 902 

(11th Cir. 2008). Where there is no liberty interest, “the procedures followed in 

making the parole determination are not required to comport with standards of 

fundamental fairness.” Slocum v. Ga. State Bd. of Pardons & Paroles, 678 F.2d 

940, 942 (11th Cir. 1982).

 Nevertheless, even where there is no liberty interest in parole, “[a] parole 

board may not engage in ‘flagrant or unauthorized action.’” Monroe v. Thigpen, 

932 F.2d 1437, 1442 (11th Cir. 1991). Monroe held a parole board’s reliance on 

information it knew was false to deny parole constituted “flagrant or 

unauthorized action,” and consequently the parole board “treated [the 

petitioner] arbitrarily and capriciously in violation of due process.” Monroe, 932 

F.2d at 1442. Since Monroe, the Eleventh Circuit has clarified this standard, 

holding “prisoners cannot make a conclusory allegation regarding the use of 

such information as the basis of a due process claim. Without evidence of the 

Board’s reliance on false information, a prisoner cannot succeed.” Jones v. Ray, 

279 F.3d 944, 946 (11th Cir. 2001); see also Swain v. Fla. Comm'n on Offender 

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Rev., 780 F. App'x 676, 678 (11th Cir. 2019) (affirming district court’s denial of 

habeas corpus petition because the Petitioner failed to prove that the 

Commission knowingly relied on false information). 

 “To plead an equal protection claim, a plaintiff must allege that ‘through 

state action, similarly situated persons have been treated disparately.’” Thorne 

v. Chairperson Fla. Parole Comm’n, 427 F. App’x 765, 771 (11th Cir. 2011). Yet, 

the Supreme Court has 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). A plaintiff can establish a 

“class of one” claim by showing that he was “intentionally treated differently 

from others similarly situated and that there is no rational basis for the 

difference in treatment.” Id. “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) 

 3. Discussion 

 a. Timeliness 

The Petitioner fails to address timeliness. (See ECF No. 1 at 19; see 

generally ECF No. 15). The Respondent, acknowledging that “[t]he 

circumstances are complex,” asserts that the petition “appears to be 

untimely[.]” (ECF No. 11 at 21–22). In reviewing the Respondent’s calculations, 

the Court discovered a discrepancy.4 Rather than redoing the cumbersome 

timeliness calculations, the Court will skip over this step as the petition is due 

to be denied on the merits.

4 The Respondent asserts that “[t]he Commission action challenged by Petitioner was 

finalized on November 2, 2017.” (ECF No. 11 at 21). But the original document cited by 

the Respondent—the Commission’s Extraordinary Interview Commission Action— 

makes no mention of November 2, 2017. (See generally ECF No. 11-10 at 100). The 

original document instead states that a Commission meeting was held on November 1, 

2017, and the documentation was certified and mailed to the Petitioner on November 

22, 2017. (See id.). In sum, it appears that the Respondent began counting from the 

wrong date. 

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 b. Exhaustion/Procedural Default 

The Respondent asserts that several grounds in the petition are 

unexhausted. (See ECF No. 11 at 16–21). The Court opts to skip over the 

exhaustion analysis as the petition is due to be denied on the merits. See 

Dallas v. Warden, 964 F.3d 1285, 1307 (11th Cir. 2020) (“[A] federal court may 

skip over the procedural default analysis if a claim would fail on the merits in 

any event.”); see also 28 U.S.C. § 2254(b)(2) (“An application for a writ of 

habeas corpus may be denied on the merits, notwithstanding the failure of the 

applicant to exhaust the remedies available in the courts of the State.”).

c. The Merits 

 Ground One 

The Petitioner asserts that “THE FLORIDA COMMISSION ON OFFENDER 

REVIEW DENIED MCCUTCHEON DUE PROCESS AMD (SIC) EQUAL 

PROTECTION OF THE LAW BY CONSIDERING FALSE INFORMATION AND 

ACTING ON IT IN AN ARBITRILY (SIC) AND CAPRICIOUSLY MANNER IN 

DENYING HIM A CORRECT EXTRAORDINARY PAROLE INTERVIEW.” (ECF No. 

1 at 6). Specifically, he argues that the state circuit court “denied Petitioner 

due process because it did not allow Petitioner to participate in discovery with 

the Commission. Petitioner should have been allowed to demonstrate with the 

Commission’s own records, that the Commission relied on false and inaccurate 

information.” (ECF No. 1-1 at 2). The Respondent counters that this claim “is a 

matter of state law and procedure, not a federal constitutional claim.” (ECF No. 

11 at 28). The Court agrees with the Respondent. 

 Although the Petitioner attempts to couch his claim “in terms of equal 

protection and due process,” the Court concludes it “actually involves state law 

issues[.]” Branan, 861 F.2d at 1508. Namely, according to the Petitioner, “Rule 

1.280, Florida Rules of Civil Procedure”, “Rule 3.220 Florida Rules of Criminal 

Procedure”, and “[R]ule 9.040(c), Florida Rules of Appellate Procedure.” (ECF 

No. 1-1 at 2). Because deciding this claim would require reexamination of 

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“state-court determinations on state-law questions,” Ground One is denied. 

Estelle, 502 U.S. at 67–68. 

Claim 15 

The Petitioner asserts that the Commission erred in assessing a Salient 

Factor Point for Age and Prior Incarcerations at his 2017 extraordinary review. 

(See ECF No. 1 at 8–9). He further argues that the information relied on was 

false because “he has no prior criminal record that resulted in incarceration[.]” 

(Id. at 8). The Respondent counters that the claim is without merit because: 

Salient factors are established at the initial PPRD 

establishment, which in this [case] was over twenty five 

years ago, (App. p. 163-165), not at the 2017 post PPRD 

suspension extraordinary reviews. (App. p. 202-205). See 

Fla. Admin. Code R. 23-21.007. Second, the claim was 

unexhausted and untimely. During his administrative 

review request of the PPRD establishment, Petitioner raised 

no issue concerning his Salient Factor Scoring. (App. p. 

102-103, 167-168). Further, as the circuit court held, the 

Petitioner was untimely in raising this claim under section 

95.11(5)(f), Florida Statutes. (App. p. 103-104, 249-250).

(ECF No. 11 at 28–29). The issue of untimeliness is a matter of state law, and 

“it is not the province of a federal habeas court to reexamine state-court 

determinations on state-law questions.” Estelle, 502 U.S. at 67–68. Claim 1 is 

thus denied. 

Claim 2

 The Petitioner asserts that he was denied due process and equal 

protection when the Commission cited the serious nature of his offense as a 

reason to continue his PPRD in suspension. (See ECF No. 1 at 9–10). This 

ground was considered and rejected by the state circuit court. (See ECF No. 11-

14 at 8–9 (“[T]he Commission possessed the discretion to use the serious 

nature of Petitioner’s original offense as a factor in denying parole release, even 

though that factor was a basis for his original PPRD decision.”)). Having 

5 The petition begins with Ground One and proceeds to Claims 1–8 (along with one 

Subclaim in Claim 5). In total, the Court counts ten grounds in the petition. 

Case 2:22-cv-14327-RNS Document 18 Entered on FLSD Docket 06/01/2023 Page 6 of 11
reviewed the record in full, the Court finds nothing unreasonable with the state 

court’s rejection of this claim. See 28 U.S.C. § 2254(d).

 As discussed, “[t]here is no constitutional right to parole in Florida. . . . 

The decision if and when to parole an inmate is left to the discretion of the 

Commission guided by its own administrative rules.” Jonas, 779 F.2d at 1577. 

And “[t]here is no liberty interest in the calculation of Florida’s ‘presumptive 

parole release date’ even though it is binding on the Commission, because the 

ultimate parole decision is a matter of Commission discretion.” Walker, 299 F. 

App’x at 902. 

 The Petitioner fails to establish that the parole board engaged in “flagrant 

or unauthorized action.” Monroe, 932 F.2d at 1442. To the contrary, the Court 

agrees with the Respondent and state court that “[t]he serious nature of the 

Petitioner’s offense of rape was properly relied upon by the Commission to 

continue the PPRD suspension.” (ECF No. 11 at 30). Claim 2 is thus denied. 

 Claim 3 

The Petitioner objects to the Commission’s reliance on the post sentence 

investigation report for his criminal history, claiming that it is not accurate and 

that the Commission may not rely on a crime for which an adjudication of guilt

was withheld. (See ECF No. 1 at 10). First, the Petitioner fails to explain why 

his criminal history was inaccurate and his “conclusory allegation” is 

insufficient. Jones, 279 F.3d at 946. Second, as explained by the state circuit 

court, although: 

 . . . an adjudication withheld, could not be counted in 

scoring the salient factor score, the Commission was 

entitled to consider Petitioner’s criminal history in 

determining whether there is reasonable probability that, if 

Petitioner were placed on parole, he would live and conduct 

himself as a respectable and law-abiding person and that 

his release would be compatible with his own welfare and 

the welfare of society.

Case 2:22-cv-14327-RNS Document 18 Entered on FLSD Docket 06/01/2023 Page 7 of 11
(ECF No. 11-14 at 9–10 (citations omitted)). Having reviewed the record in full, 

the Court finds nothing unreasonable with the state court’s rejection of this 

claim. See 28 U.S.C. § 2254(d). Claim 3 is thus denied. 

Claim 4

The Petitioner argues that it was improper for the Commission to rely on 

a Florida Department of Corrections (“Department”) disciplinary report because 

it was based on hearsay and was overturned. (See ECF No. 1 at 10–12). The 

Respondent counters that: 

 [The Petitioner] seems to find fault with the Department’s 

disciplinary process. The circuit court denied this claim 

(App. p. 253-255), noting that the Department’s records as 

well as the Commission Investigator’s (“CI”) Rationale 

makes reference to a July 29, 2013, disciplinary report for 

filing a frivolous motion. (App. p. 119, 203). The 

Commission has no authority over Department disciplinary 

proceedings which lie solely with the Department. See Fla. 

Admin. Code R. 33-601.301-312; 33-601.314 (9-32). As 

held in Adams v. State, 560 So. 2d 321, 322 (Fla. 1st DCA 

1990), the Commission is authorized to rely on the 

Department’s records in the performance of its record 

keeping duties. Petitioner’s potential remedy in this regard 

would have been through the Department or its grievance 

process, not the Commission.

(ECF No. 11 at 31). Although the Petitioner has attempted to couch this claim 

as due process violation, the Court concludes it “actually involves state law 

issues[.]” Branan, 861 F.2d at 1508. Because deciding this claim would require 

reexamination of “state-court determinations on state-law questions”, Claim 4 

is denied. Estelle, 502 U.S. at 67–68.

Claim 5

The Petitioner asserts—citing “section 945.12(6), Florida Statutes, and 

Chapter 33-601.210(2)(h), Fla. Admin. Code”—that “the Commission failed to 

make any positive recommendation to help facilitate an early parole.” (ECF No. 

1 at 12). No constitutional injury is raised in this claim. (See id.). Claim 5 is 

thus denied. See 28 U.S.C. §§ 2241(c)(3), 2254(a).

Case 2:22-cv-14327-RNS Document 18 Entered on FLSD Docket 06/01/2023 Page 8 of 11
Subclaim 

In his subclaim, the Petitioner argues “that he has been denied equal 

protection, comparing his circumstances with that of other similar[ly] situated 

prisoners.” (ECF No. 1 at 13). He proceeds to recount the histories of several 

prisoners and asserts that “[e]ach of these prisoners has served less prison 

time [than the Petitioner] before they were parole[d] a second time after their 

parole violation.” (Id. at 14). The Petitioner misunderstands the requirements of 

an equal protection claim. In denying this claim, the state circuit court stated 

as follows: 

Petitioner raises an Equal Protection claim, based on the 

Commission’s allegedly more favorable treatment of other 

inmates. “The Equal Protection Clause, however, does not 

demand that all persons be treated equally-it demands only 

reasonable conformity in dealing with persons similarly 

situated.” Meola v. Dep’t of Corr., 732 So. 2d 1029, 1037

(Fla. 1998)(citing City of Cleburne v. Cleburne Living Center, 

473 U.S. 432, 439, 105 S. ctr. 3249, 87 L.Ed. 2d 313 

(1985)). “Different treatment of dissimilarly situated persons 

does not constitute and equal protection violation.” Meola at 

1037 (citing E & T Realty v. Strickland, 830 F.2d 1107, 1109 

(11th Cir. 1987), cert. denied, 485 U.S. 961, 108 S. Ct. 1225,

99 ZL.Ed.2d 425 (1988)). Petitioner has not alleged facts 

that would, if true, demonstrate that other inmates had 

identical crimes, prior records, or disciplinary records that 

would establish that they were similarly situated to him but 

were treated disparately. Petitioner has therefore failed to 

state a prima facie Equal Protection claim. 

(ECF No. 11-14 at 13). Having reviewed the record in full, the Court finds 

nothing unreasonable with the state court’s rejection of this claim. See 28 

U.S.C. § 2254(d). The Petitioner’s Subclaim is thus denied.

Claims 6, 7, and 8

These claims are directed at the Commission’s reasons for imposing an 

extended interview interval under section 947.174(1)(b), Florida Statutes. As 

discussed, following his November 2017 review, the Petitioner’s next interview 

was scheduled for “within 7 years rather than within 2 years[.]” (ECF No. 11-10 

at 100). 

Case 2:22-cv-14327-RNS Document 18 Entered on FLSD Docket 06/01/2023 Page 9 of 11
 In Claim 6, the Petitioner asserts “it was error for the Commission to 

incorporate the nature of the offense” in making the determination. (ECF No. 1 

at 15–16). In Claim 7, he asserts “the Commission incorrectly used 

‘unreasonable risk to others’ as a basis for extending the interval between 

intervals.” (Id. at 17). Finally, in Claim 8, he asserts the Commission erred by 

relying on his “status as a parole violator.” (Id.). The Petitioner cites exclusively 

to Florida statutes and caselaw without mention of the federal constitution—

not even to broad provisions like due process or equal protection.6 (See id. at 

15–18). Because no constitutional injury is presented, Claims 6, 7, and 8 are 

denied. See 28 U.S.C. §§ 2241(c)(3), 2254(a).

 d. Evidentiary Hearing

 In a habeas corpus proceeding, the burden is on the petitioner to 

establish the need for an evidentiary hearing. See Chavez v. Sec’y, Fla. Dep’t of 

Corr., 647 F.3d 1057, 1060 (11th Cir. 2011). “[I]f the record refutes the 

applicant’s factual allegations or otherwise precludes habeas relief, a district 

court is not required to hold an evidentiary hearing.” Schriro v. Landrigan, 550 

U.S. 465, 474 (2007); see also Jones v. Sec’y, Fla. Dep’t of Corr., 834 F.3d 1299, 

1318-19 (11th Cir. 2016). Here, the record refutes the Petitioner’s factual 

allegations and precludes habeas relief. See id. Because the Court can 

“adequately assess [the Petitioner’s] claim[s] without further factual 

development[,]” he is not entitled to an evidentiary hearing. Turner v. Crosby, 

339 F.3d 1247, 1275 (11th Cir. 2003). 

 e. Certificate of Appealability 

A prisoner seeking to appeal a district court’s final order denying his or 

her petition for writ of habeas corpus has no absolute entitlement to appeal; 

rather, in order to do so, he must obtain a certificate of appealability. See 28 

U.S.C. § 2253(c)(1); see also Harbison v. Bell, 556 U.S. 180, 183 (2009). The 

6 Even if the Petitioner had invoked the federal constitution, his attempt would fail. See 

Branan, 861 F.2d at 1508 (“This limitation on federal habeas review is of equal force 

when a petition, which actually involves state law issues, is couched in terms of equal 

protection and due process.”). At bottom, these claims involve “state law issues” not 

cognizable on federal habeas review. Id. 

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Court should issue a certificate of appealability only if the petitioner makes “a 

substantial showing of the denial of a constitutional right.” See 28 U.S.C. § 

2253(c)(2). To make such a showing, the petitioner must demonstrate that 

“reasonable jurists” would find the correctness of the district court’s rulings 

“debatable.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). The Petitioner does 

not satisfy this burden, so the Court will not issue a certificate of appealability.

 4. Conclusion 

For the foregoing reasons, Petitioner Rodney Calvin McCutcheon’s 

petition for writ of habeas corpus under 28 U.S.C. § 2254 (ECF No. 1) is 

denied. A certificate of appealability is also denied. Because there are no 

issues with arguable merit, an appeal would not be taken in good faith, and 

thus, the Petitioner is not entitled to appeal in forma pauperis. The Clerk is 

directed to close the case. 

Done and ordered, in chambers, in Miami, Florida, on June 1, 2023.

 ________________________________ 

 Robert N. Scola, Jr. 

 United States District Judge 

Copies, via U.S. Mail, to 

Rodney Calvin McCutcheon 

037023 

Okeechobee Correctional Institution 

Inmate Mail/Parcels 

3420 NE 168th Street 

Okeechobee, FL 34972 

PRO SE

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