Page 1 of 17

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

KELVIN FRAZIER,

Petitioner,

v. Case No. 3:09cv340/WS/MD

WALTER A. MCNEIL, 

Respondent.

______________________________________________________________________

REPORT AND RECOMMENDATION

Before the court is a petition for writ of habeas corpus filed pursuant to 28

U.S.C. § 2254. (Doc. 1). Respondent has filed a response requesting dismissal of

the petition for failure to exhaust state court remedies. (Doc. 8). Petitioner has

responded in opposition to dismissal. (Doc. 13). The matter is referred to the

undersigned magistrate judge for report and recommendation pursuant to 28 U.S.C.

§ 636 and N.D. Fla. Loc. R. 72.2(B). After careful consideration of all issues raised

by petitioner, it is the opinion of the undersigned that no evidentiary hearing is

required for the disposition of this matter, Rules Governing Section 2254 Cases 8(a). 

It is further the opinion of the undersigned that the pleadings and attachments

before the court show that petitioner is not entitled to relief, and that the petition

should be denied.

BACKGROUND AND PROCEDURAL HISTORY

Petitioner is a state inmate currently incarcerated at Santa Rosa Correctional

Institution. He challenges a July 11, 2008 decision by prison officials to retain him

on Close Management III (“CMIII”) status. According to petitioner, after exhausting

his administrative remedies he filed a petition for writ of habeas corpus in the Circuit
Page 2 of 17

Court of Santa Rosa County, Florida (“Circuit Court”). (Doc. 1, Ex. A, pp. 11-24 in

ECF). The clerk of the Circuit Court did not open a case file or assign a case

number. Rather, she returned petitioner’s habeas corpus petition and supporting

documents to him without filing, attaching a copy of a March 10, 2008 order entered

in a previous mandamus case (Santa Rosa County Circuit Court case number 2007-

CA-000102). That March 10, 2008 order provided, in relevant part:

The Clerk of the Court is directed

(5) to accept no further civil filings from Petitioner unless

accompanied by the full statutory filing fee; if received without the filing

fee, they shall be returned to him without filing and with a reference to

this Order; and

(6) to accept no further pro se filings from Petitioner; if received,

they shall be returned to him without filing and with a reference to this

Order.

(Doc. 1, pp. 59-60 in ECF).

On September 28, 2009, petitioner sought review of the Circuit Court’s action

by filing a petition for writ of certiorari in the Florida First District Court of Appeal

(“First DCA”). Since his state habeas petition was returned without an original order

but instead pursuant to the March 10, 2008 order issued in another case, petitioner

identified the March 10, 2008 order as the order of which he sought certiorari review. 

(Doc. 1, Ex. “D,” p. 25 in ECF). He explained in his certiorari petition, however, that

the Circuit Court had not assigned his habeas case a new case number or issued an

original order disposing of the case, but had simply refused to file his petition based

on the March 10, 2008 order. (Id., pp. 25-27 in ECF). The First DCA assigned the

certiorari proceeding case number 1D08-4834. No lower tribunal case number was

identified. On October 7, 2008, the First DCA issued an order construing the

certiorari petition as one “seek[ing] review of an order denying indigency entered on

March 10, 2008.” (Doc. 1, Ex. “E,” p. 42 in ECF). The order noted that it appeared the

certiorari petition was untimely filed, and that the time limit for filing a petition for

Case No: 3:09cv340/WS/MD
Page 3 of 17

writ of certiorari (30 days) is jurisdictional. The court directed petitioner to show

cause why his certiorari petition should not be dismissed for lack of jurisdiction. 

(Id.). 

Petitioner responded by explaining that he had filed his certiorari petition

within 11 days of receiving his returned habeas documents from the Circuit Court

clerk, and that the Circuit Court clerk had used the 7-month old March 10, 2008 order

as the basis for returning his documents. He therefore asserted that his certiorari

petition was timely filed. (Doc. 1, Ex. “F,” pp. 43-47 in ECF). On November 7, 2008, 

petitioner’s certiorari petition was dismissed without written opinion. Frazier v.

McNeil, 993 So.2d 517 (Fla. 1st DCA Nov. 7, 2008) (Table) (copy at Doc. 1, p. 48 in

ECF). The mandate issued on February 25, 2009. (Id., p. 49 in ECF). 

On February 24, 2009, petitioner filed a petition for writ of habeas corpus in

the Florida Supreme Court seeking immediate release to open population. (Doc. 1,

pp. 81-84 in ECF). The petition was treated as one for mandamus, assigned Case

Number SC09-395, and dismissed on March 31, 2009 pursuant to petitioner’s notice

of voluntary dismissal. Frazier v. McNeil, 7 So.3d 1098 (Fla. Mar. 31, 2009) (Table);

see also Doc. 8, App. E, docket sheet for First DCA Case Number 1D08-4834. 

On April 30, 2009, petitioner field a petition for writ of mandamus in the Florida

Supreme Court seeking to compel the First DCA to “enforce” its mandate in Case

Number 1D08-4834 and require the Circuit Court to hear his state habeas case. (Doc.

1, pp. 72-77 in ECF). The petition was assigned Case Number SC09-794 and

dismissed on July 13, 2009. (Doc. 8, App. F). The order of dismissal stated, “Having

determined that this Court is without jurisdiction to consider the petition for writ of

mandamus under any or all of the jurisdictional bases described in article V, section

3(b)(3) and 3(b)(7), Florida Constitution, the petition is hereby dismissed. See

Stallworth v. Moore, 827 So.2d 974 (Fla. 2002). No motion for rehearing will be

entertained by the Court.” Frazier v. McNeil, 14 So.3d 1003 (Fla. July 13, 2009)

(Table).

Case No: 3:09cv340/WS/MD
Page 4 of 17

Petitioner filed the instant § 2254 petition on August 9, 2009. (Doc. 1, p. 8 in

ECF).

DISCUSSION

Respondent’s Request for Dismissal

Respondent seeks dismissal of the petition on the grounds that petitioner

failed to exhaust his state court remedies. (Doc. 8, p. 1). It is a long-standing

prerequisite to the filing of a federal habeas corpus petition that the petitioner have

exhausted available state court remedies, 28 U.S.C. § 2254(b)(1), thereby giving the 1

State the “‘opportunity to pass upon and correct’ alleged violations of its prisoners’

federal rights.” Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 888, 130 L.Ed.2d

865 (1995) (quoting Picard v. Connor, 404 U.S. 270, 275, 92 S. Ct. 509, 30 L. Ed. 2d

438 (1971) (citation omitted)). To satisfy the exhaustion requirement, the petitioner

“must give the state courts one full opportunity to resolve any constitutional issues

by invoking one complete round of the State’s established appellate review

process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 1732, 144

L.Ed.2d 1 (1999). 

Section 2254 provides, in pertinent part:

1

(b)(1) An application for a writ of habeas corpus on behalf of a person in custody

pursuant to the judgment of a State court shall not be granted unless it appears that–

(A) the applicant has exhausted the remedies available in the courts of the

State; or

(B) (i) there is an absence of available State corrective process; or

(ii) circumstances exist that render such process ineffective to protect the

rights of the applicant.

. . . .

(c) An applicant shall not be deemed to have exhausted the remedies available in the courts

of the State, within the meaning of this section, if he has the right under the law of the State

to raise, by any available procedure, the question presented.

Case No: 3:09cv340/WS/MD
Page 5 of 17

An issue that was not presented to the state court and which can no longer

be litigated under state procedural rules is considered procedurally defaulted, i.e.,

procedurally barred from federal review. O’Sullivan, 526 U.S. at 839-40, 848, 119

S.Ct. at 1734; Bailey v. Nagle, 172 F.3d 1299, 1302-03 (11 Cir. 1999). th This court will

also consider a claim procedurally defaulted if it was presented in state court and

rejected on the independent and adequate state ground of procedural bar or default. 

Coleman v. Thompson, 501 U.S. 722, 734-35 and n. 1, 111 S.Ct. 2546, 2557 and n. 1,

115 L.Ed.2d 640 (1991); Caniff v. Moore, 269 F.3d 1245, 1247 (11 Cir. 2001) th

(“[C]laims that have been held to be procedurally defaulted under state law cannot

be addressed by federal courts.”); Chambers v. Thompson, 150 F.3d 1324, 1326-27

(11 Cir. 1998) (applicable state procedural bar should be enforced by federal court th

even as to a claim which has never been presented to a state court); accord Tower

v. Phillips, 7 F.3d 206, 210 (11 Cir. 1993); Parker v. Dugger, 876 F.2d 1470 (11 Cir. th th

1990), rev’d on other grounds, 498 U.S. 308, 111 S. Ct. 731, 112 L.Ed.2d 812 (1991). 

In the first instance, the federal court must determine whether any future attempt to

exhauststate remedies would be futile under the state’s procedural default doctrine. 

Bailey, 172 F.3d at 1303. In the second instance, a federal court must determine

whether the state’s procedural default ruling rested on adequate state grounds

independent of the federal question. See Harris v. Reed, 489 U.S. 255, 109 S. Ct.

1038, 1043, 103 L. Ed. 2d 308 (1989). 

Respondent construes from the exhibits attached to petitioner’s federal

habeas petition that petitioner is relying on three state court cases to demonstrate

his exhaustion of state court remedies: Santa Rosa County Circuit Court Case

Number 07-872; Santa Rosa County Circuit Court Case Number 07-102; and First

DCA Case Number 1D08-4834. (Id., p. 2). 

Respondent argues that petitioner cannot be deemed to have properly

exhausted his state court remedies through Circuit Court Case Number 07-872,

because that state habeas case was filed nearly a year prior to the July 11, 2008 CM

Case No: 3:09cv340/WS/MD
Page 6 of 17

decision, and involved a June 12, 2007 decision to retain petitioner on CM status. 

Thus, “it would have been chronologically impossible for the July 11, 2008 CM

decision to be reviewed by the circuit court in Case No. 07-872-CA01.” (Doc. 8, p.

6). 

Respondent further argues that petitioner cannot be deemed to have properly

exhausted his state court remedies through Circuit Court Case Number 07-102,

because that case also predated the July 11, 2008 CM decision, and furthermore was

considered a mandamus petition in which petitioner sought transfer to a different

institution. As such, Case Number 07-102 “would not be a vehicle for proper state

court exhaustion for a federal habeas challenge for the CM decision of July 11, 2008,

because its filing predated the CM decision, the case concerned the non-habeas

issue of prison transfer, and appellate review of the case was still ongoing at the

time Frazier filed the instant federal habeas corpus case.” (Id., p. 6). 

Lastly, respondent contends that First DCA Case Number 1D08-4834 would

not constitute proper state court exhaustion of the July 11, 2008 CM decision,

because the case was treated by the First DCA as a petition for writ of certiorari

seeking review of an order denying insolvency status entered March 10, 2008. 

Respondent explains, “[t]he March 10, 2008, indigency order predates the July 11,

2008 CM decision. Any attempt to a [sic] piggy-back a new CM challenge into this

case did not result in review on the merits of such. Moreover, that case was

dismissed for lack of jurisdiction, and when petitioner sought further review in the

Florida Supreme Court, that court dismissed for lack of jurisdiction.” (Id., p. 7). 

Based on the foregoing, respondent claims that petitioner “did not properly

exhaust his challenge to the CM decision of July 11, 2008. At present, petitioner has

not given Florida state courts the opportunity to fully review his claim. Accordingly,

Frazier’s claim is precluded from review in federal court, and the instant petition

should be dismissed based on Frazier’s failure to exhaust his state court remedies.” 

(Id., p. 7).

Case No: 3:09cv340/WS/MD
Page 7 of 17

The problem with respondent’s argument is that it fails to acknowledge or

discuss petitioner’s September 2008 attempt to exhaust his state court remedies by

filing a petition for writ of habeas corpus in the Circuit Court. That attempted filing

did not predate the July 11, 2008 CM decision. Indeed, it expressly identified the

July 11, 2008 CM decision as the subject of the habeas challenge. When that filing

was rejected by the Circuit Court clerk, petitioner sought review in the First DCA by

filing the petition for writ of certiorari in First DCA Case Number 1D08-4834. Thus,

contrary to respondent’s contention, petitioner’s reference to Case Number 1D08-

4834 is not an attempt to improperly “piggy-back”a new CM challenge to an old

habeas case. Case Number 1D08-4834 was part of petitioner’s attempt to exhaust

the present CM challenge. Petitioner identified the March 10, 2008 order as the order

of which he was seeking certiorari review because that order was the clerk’s stated

basis for rejecting his state habeas petition. 

Because respondentdoesnot acknowledge petitioner’s attempt at exhaustion

in the Circuit Court, much less assert that any of the state court actions discussed

above constitute a state procedural default ruling adequate to bar federal habeas

review, the undersigned cannot recommend dismissal of this case on respondent’s

proffered basis.

Consideration of the Merits of Petitioner’s Claims

Regardless of whether petitioner exhausted his state court remedies, his

application for habeas corpus relief should be denied. See 28 U.S.C. § 2254(b)(2)

(2009)(“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.”). Petitioner’s federal habeas petition raises seven grounds for

relief:

1. The July 2008 decision retaining petitioner on close management

violates petitioner’s due process rights, because the Florida

Department of Corrections (“DOC”) violated its own rules. (Doc. 1, pp.

5, 16-17 in ECF).

Case No: 3:09cv340/WS/MD
Page 8 of 17

2. Petitioner has a protected liberty interest in remaining in the general

population, and prison officials deprived him of that interest when they

failed to follow their own rules. (Id., pp. 5, 18 in ECF).

3. The conditions of closemanagementimpose an atypical and significant

hardship on petitioner when compared to the conditions of prisoners

in the general population. (Id. pp. 6, 19 in ECF).

4. The DOC’s boilerplate denials of relief during the administrative

grievance process did not adequately address petitioner’s issues. (Id.,

pp. 6, 19 in ECF).

5. Petitioner’s retention on close management due to a 2004 assault

violates double jeopardy principles, because the 2004 assault was the

basis for petitioner’s initial placement on close management. (Id., pp.

7, 20-21 in ECF).

6. Petitioner’s retention on close management constitutes cruel and

unusual punishment in violation of the Eighth Amendment, because

prison officials knew petitioner should have been released from close

management. (Id., pp. 7, 22-23 in ECF).

7. Claims relating to retention in close management may be raised in a

petition for writ of habeas corpus. (Id., pp. 7, 23 in ECF).

In Grounds 1-3, petitioner challenges the July 11, 2008 CM decision on due

process grounds. The Due Process Clause protects against deprivations of “life,

liberty, or property without due process of law.” U.S. Const. amend. XIV. Here,

petitioner was not deprived of life or property; he is therefore entitled to due process

only if he was deprived of “liberty” within the meaning of the Fourteenth

Amendment. In Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418

(1995), the United States Supreme Court identified two situations in which a

prisoner, who has already been deprived of his liberty in the ordinary sense of the

word, can be further deprived of his liberty such that due process protections are

implicated. The first is “when a change in the prisoner’s conditions of confinement

is so severe that it essentially exceeds the sentence imposed by the court.” Kirby

v. Siegelman, 195 F.3d 1285, 1290-91 (11 Cir. 1999) (citing Sandin, 515 U.S. at 484,

th

Case No: 3:09cv340/WS/MD
Page 9 of 17

115 S.Ct. at 2300). The second is “when the [government] has consistently

bestowed a certain benefit to prisoners, usually through statute or administrative

policy, and the deprivation of that benefit ‘imposes atypical and significant hardship

on the inmate in relation to the ordinary incidents of prison life.’” Id. at 1291 (quoting

Sandin, 515 U.S. at 484, 115 S.Ct. at 2300).

Here, it plainly appears from the face of the petition and exhibits in the record

that petitioner has not established a protected liberty interest in remaining free from

the conditions of close management. Petitioner does not describe the conditions

of his confinement, other than to disclose that the July 11, 2008 decision was to

retain him on Close Management III status. (Doc. 1, p. 12 in ECF).

The administrative rules of the Florida DepartmentofCorrections define Close

Management as “the confinement of an inmate apart from the general population,

for reasons of security or the order and effective management of the institution,

where the inmate, through his or her behavior, has demonstrated an inability to live

in the general population without abusing the rights and privileges of others.” Fla.

Admin. Code r. 33-601.800(1)(d) (2009). There are three levels of Close Management,

with CMI being the most restrictive single cell housing level and CMIII being the least

restrictive level. Fla. Admin. Code r. 33-601.800(1)(d). 

According to the administrative rules, unless there is an indication of a

security problem or there are facts to suggest that on an individual basis exceptions

are necessary for the welfare of the inmate or the security of the institution, the

inmates in close management are provided the same clothing, bedding, meals and

opportunities for correspondence as inmates in the general population. Inmates in

close management are allowed to retain several items of personal property, comfort

and hygiene. Fla. Admin. Code r. 33-601.800(10). Although canteen purchases are

restricted for the first 30 days in close management, after that period inmates in

CMIII are allowed to purchase items from the canteen once per week. (Id.). While

in close management, aninmate’s movement within the institution and contacts with

Case No: 3:09cv340/WS/MD
Page 10 of 17

other individuals are restricted. However, inmates in CMIII are still allowed the

following: contact visits (one two-hour contact personal visit every 14 days), access

to the day room area for social purposes (up to five days per week, not to exceed 4

hours per occasion), exercise, and telephone privileges (one telephone call every

seven days). Fla. Admin. Code r. 33-601.800(11)(d). CMIII inmates are eligible for

work assignments either inside or outside the close management unit, including

restricted labor squads, work assignments within other close management units,

and work assignments usually designated for open population inmates. Fla. Admin.

Code r. 33-601.800(13)(b). Lastly, unlike inmates in more restrictive close

management, inmates on CMIII are escorted within the unit and to exercise areas

attached to the unit as well as to all program and privilege activity participation

without restraints. Fla. Admin. Code r. 33-601.800(14)(c).

In light of the foregoing and the dearth of allegations in the petition

concerning petitioner’s confinement conditions, this court cannot say that the 

conditions of petitioner’s confinement are outside the normal range and limits of

custody, or present an atypical and significant hardship on petitioner such that due

process protections are implicated. As petitioner has not established a

constitutionally protected liberty interest in being free from retention in CMIII, his

due process claims must fail. Compare Magluta v. Samples, 375 F.3d 1269, 1282

(11 Cir. 2004) (holding that pretrial detainee’s allegations supported finding of th

liberty interest under Sandin where detainee alleged he was confined under

extremely harsh conditions-in solitary confinement (under conditions unlike other

pretrial detainees or even convicted prisoners), locked in an extremely small,

closet-sized space, and with minimal contact with other human beings for a

prolonged time exceeding 500 days), with Chandler v. Haas, No. 1:07cv145/MMP/AK,

2008 WL 2096380, at *1 (N.D. Fla. May 16, 2008) (concluding that inmate had no

protected liberty interest in being kept out of close confinement), and Shaarbay v.

Smith, No. 3:07cv374/LAC/MD, 2007 WL 4180970, at *2 (N.D. Fla. Nov. 20, 2007)

Case No: 3:09cv340/WS/MD
Page 11 of 17

(concluding that change in custody classification from general population to close

management did not implicate due process protections), and Powell v. Ellis, No.

3:07cv160/MCR/EMT, 2007 WL 2669432, at *4 (N.D. Fla. Sept. 7, 2007) (holding that

prisoner plaintiff had no constitutionally protected interest in particular

classification), and Adamson v. McNeil, No. 3:08cv231/RV/EMT, 2008 WL 5231869,

at *2-3 (N.D. Fla. Dec. 12, 2008) (holding that prisoner had no constitutionally

protected liberty interest in remaining free from a change in classification from CMIII

to CMII).

In Ground 4 petitioner appears to challenge the process provided during the

administrative grievance process, arguing that the DOC did not adequately address

his issues. This claim provides no basis for federal habeas relief, because a

prisoner has no constitutionally-protected liberty interest in an inmate grievance

procedure. Dunn v. Martin, 178 Fed. Appx. 876, 878 (11 Cir. 2006); Baker v. th

Rexroad, 169 Fed. Appx. 61, 62 (11 Cir. 2005) (“Although we have not yet th

considered this issue, we agree with other circuits that have held that [inmate

grievance procedures] are not constitutionally mandated.”) (citing cases from the

Fourth, Eighth, and Ninth Circuits). 

In Ground 5 petitioner claims his retention in close management was due to

a 2004 assault which provided the basis for his initial placement in close

management. He therefore contends that his retention in CMIII violates double

jeopardy principles. The Fifth Amendment states in part that no “person [shall] be

subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const.

amend. V. The Double Jeopardy Clause protects individuals against three distinct

violations: (1) “a second prosecution for the same offense after acquittal”; (2) “a

second prosecution for the same offense after conviction”; and (3) “multiple

punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711, 717, 89

S.Ct. 2072, 23 L.Ed.2d 656 (1969), overruled on other grounds, Alabama v. Smith, 490

U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989). Petitioner apparently relies on the

Case No: 3:09cv340/WS/MD
Page 12 of 17

third of these types of abuses, arguing that prison officials punished him for the

2004 assault by placing him in close management, and then punished him again by

retaining him in close management for the same offense conduct that formed the

basis of the initial placement. The Supreme Court has recognized, however, that the

Double Jeopardy Clause does not prohibit the imposition of all additional sanctions

that could, “in common parlance, be described as punishment.” Hudson v. United

States, 522 U.S. 93, 98-99, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997) (internal quotation

omitted)). The Clause protects only against the imposition of multiple criminal

punishments for the same offense. Id. at 99 (quotations omitted). The Double

Jeopardy Clause does not apply to proceedings that are not “essentially criminal.” 

Breed v. Jones, 421 U.S. 519, 528, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975). The Supreme

Court has held that prison disciplinary proceedings are not part of a criminal

prosecution. Wolff v. McDonnell, 418 U.S. 539, 556, 94 S.Ct. 2963, 41 L.Ed.2d 935

(1974). 

As the Eleventh Circuit explained in United States v. Mayes, 158 F.3d 1215,

1224 (11 Cir. 1998), “Prison officials have no authority to alter the inmates’ original th

criminal sentences. They merely implement disciplinary proceedings that may, at

most, change the conditions of the inmates’ confinement for purposes of

maintaining institutional order and encouraging compliance with prison rules.” In

Mayes, federal prisoners brought a double jeopardy challenge to criminal charges

based upon the same offense conduct as disciplinary sanctions previously imposed

by the federal Bureau of Prisons. The Mayes court held that the prison disciplinary

sanctions imposed, which included a combination of disciplinary transfers to

maximum security prisons, disciplinary segregation for 60 days, disallowance of

between 41 and 94 days of accrued good conduct time, temporary losses of

telephone, commissary, and/or recreational privileges, and losses of visitation

privileges for up to one year, were not so punitive as to override the government's

intent to create remedial administrative penalties for inmate misconduct. Id. 

Case No: 3:09cv340/WS/MD
Page 13 of 17

Accordingly, the court declined to classify the regulations as “criminal,” and

rejected the inmates’ double jeopardy challenges to their subsequent criminal

prosecutions. Id. 

In light of the foregoing, petitioner cannot establish that his retention in close

management constitutes criminalpunishmentfordouble jeopardypurposes. Mayes;

see also Taylor v. Gomez, 182 F.3d 927 (9 Cir. 1999) (concluding that inmate’s

th

double jeopardy argument lacked merit in that the district court correctly reasoned

that his custody classification “is not punishment, but rather a method for housing

inmates based on their behavior”); Langton v. Berman, 667 F.2d 231, 233, 234 (1st

Cir. 1981) (holding that punishing prisoner with 15 days isolation and loss of all

privileges, including good-time credits, did not violate Double Jeopardy Clause

because Double Jeopardy Clause applies only to criminal or quasi-criminal

proceedings); Welch v. Epps, 103 Fed. Appx. 828, 829 (5 Cir. 2004) (addressing th

Mississippi inmate’s claims regarding the point system of classification and holding

that a mere change in custodial status does not qualify as a second “punishment”

for double jeopardypurposes); Garland v. Marfield, No. 3:08cv261/RV/EMT, 2009 WL

22283 (N.D. Fla. Jan. 2, 2009) (rejecting inmate’s claim that his placement on CMIII

status violated the Double Jeopardy Clause because he was already punished for

the disciplinary infraction by serving time in disciplinary confinement; stating

“Plaintiff’s custody classification is not ‘punishment’ for double jeopardy

purposes.”); Butler v. McDonough, No. 2:06-cv-206-FtM-29SPC, 2007 WL 2071530,

at *8 (M.D. Fla. 2007) (“[Double jeopardy] protections apply to criminal trials, not

disciplinary hearings or subsequent inmate classifications utilized by jail officials

to maintain safety and security at the jail.”). Based on the foregoing, petitioner is not

entitled to federal habeas relief on his double jeopardy claim. 

Claim 6 asserts that petitioner’s retention in close management constitutes

cruel and unusual punishment in violation of the Eighth Amendment. In assessing

a claim of cruel and unusual punishment in violation of the Eighth Amendment, the

Case No: 3:09cv340/WS/MD
Page 14 of 17

court must consider “the evolving standards of decency that mark the progress of

a maturing society.” Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630

(1958). Cruel and unusual punishment, however, consists only of a level of

punishment that involves “the unnecessary and wanton infliction of pain.” Gregg

v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 2925, 49 L.Ed.2d 859 (1976); Campbell

v. Sikes, 169 F.3d 1353 (11 Cir. 1999). Claims challenging conditions of th

confinement under the Eighth Amendment must demonstrate an infliction of pain

“without any penological purpose” or an “unquestioned and serious deprivation of

basic human needs” such as medical care, exercise, food, warmth, clothing, shelter,

or safety. Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 2399, 69 L.Ed.2d

59 (1981); see also Hamm v. DeKalb County, 774 F.2d 1567, 1571-72 (11 Cir. 1985). th

As the Supreme Court stated in Rhodes, “the Constitution does not mandate

comfortable prisons, and prisons . . . which house persons convicted of serious

crimes, can not be free of discomfort.” Id. at 349, 101 S.Ct. at 2400. Moreover, “[t]o

the extent that such conditions are restrictive and even harsh, they are part of the

penalty that criminal offenders pay for their offenses against society.” Id. at 347, 101

S.Ct. at 2399. Therefore, to state a claim for a violation of the Eighth amendment, a

prisoner must first allege a condition that is an objectively “cruel and unusual

deprivation,” and second, that the officials responsible for the condition had the

subjective intent to punish. 

In the instant case, neither petitioner’s allegations nor the description of CMIII

conditions provided in the administrative rules suggest that petitioner is being

denied the minimal civilized measure of life’s necessities or subjected to a wanton

and unnecessary infliction of pain. Because petitioner does not allege that he was

deprived of adequate food, medical care, exercise, or sanitation, his conditions of

confinement in CMIII do not, on their face, violate the Eighth Amendment. Wilson,

501 U.S. 294; Rhodes, 452 U.S. at 347; see also, e.g., Sheley v. Dugger, 833 F.2d

1420, 1428-29 (11 Cir. 1987) (“It is clear that administrative segregation and solitary

th

Case No: 3:09cv340/WS/MD
Page 15 of 17

confinement do not, in and of themselves, constitute cruel and unusual

punishment.”); Keller v. PA Bd. of Probation and Parole, 240 Fed. Appx. 477, 480 n.

3 (3 Cir. 2007)(“We conclude, however, that confinement in a restricted housing rd

unit does not in itself constitute cruel and unusual punishment in violation of the

Eighth Amendment.”); Pabon v. Chmielewski, 2008 WL 4400795, at *3 (M.D. Pa. 2008)

(unpublished opinion) (“[T]he mere allegation that plaintiff was placed in restricted

housing does not violate civilized standards of humanity and decency.”); Dixon v.

Goord, 224 F. Supp. 2d 739, 748 (S.D. N.Y. 2002)(“The conditions of special housing

units do not per se constitute cruel and unusual punishment in violation of the

Eighth Amendment.”); Evans v. Perkins, 2007 WL 625922 (M.D. Ala. Feb. 27, 2007)

(unpublished opinion) (“Neither classification of an inmate in a higher custody level

nor his confinement in a more secure correctional facilityalleges a sufficientlygrave

deprivation so as to rise to the level of cruel and unusual punishment.”). 

Nor does the length of petitioner’s confinement in close management – four

years – establish that his retention in CMIII violates the Eighth Amendment. The sole

allegation in support of petitioner’s Eighth Amendment claim is that “officers knew

I should have been released in July 2008[.] They kept me confine[d] beyond the

termination date of the [CM] sentence.” (Doc. 1, p. 7 in ECF). Petitioner further

contends that he was retained in CMIII “for no reason.” (Id., p. 22 in ECF). His state

habeas petition reveals, however, that prison officials declined to release him to the

general population because: “(1) Based on the seriousness of his initial placement

for assault on another inmate. (2) His aggressive and violent behavior continues to

present increased safetyand securityconcerns warranting continued observation.” 

(Id., p. 13 in ECF). In light of these reasons, this court cannot say that petitioner’s

retention in CMIII “shocks the conscience, is grossly disproportionate to the

offense, or is totally without penological justification.” See Sheley v. Dugger, 833

F.2d 1420, 1429 (11 Cir. 1987). th

Case No: 3:09cv340/WS/MD
Page 16 of 17

Petitioner’s final ground for relief, Ground 7, states simply, “Claims relating

to continued retention in close management may properly be raised by petition for

writ of habeas corpus.” (Doc. 1, p. 7 in ECF). This jurisdictional statement provides

no basis to find that petitioner is in custody in violation of the Constitution. 

For the foregoing reasons, petitioner is not entitled to federal habeas relief,

and the writ should not issue.

Certificate of Appealability

As amended effective December 1, 2009, Rule 11(a) of the Rules Governing

Section 2254 Cases in the United States District Courts provides that “[t]he district

court must issue or deny a certificate of appealability when it enters a final order

adverse to the applicant.” If a certificate is issued, “the court must state the specific

issue or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2).” Rule

11(a), Rules Governing Section 2254 Cases. A timely notice of appeal must still be

filed, even if the court issues a certificate of appealability. Rule 11(b), Rules

Governing Section 2254 Cases.

The undersigned finds no substantial showing of the denial of a constitutional

right. 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84, 120 S.Ct. 1595,

1603-04, 146 L.Ed.2d 542 (2000) (explaining how to satisfy this showing) (citation

omitted). Therefore, it is recommended that the court deny a certificate of

appealability in its final order.

The second sentence of new Rule 11(a) provides: “Before entering the final

order, the court may direct the parties to submit arguments on whether a certificate

should issue.” If there is an objection to this recommendation by either party, that

party may bring this argument to the attention of the district judge in the objections

permitted to this report and recommendation.

Accordingly, it is respectfully RECOMMENDED:

Case No: 3:09cv340/WS/MD
Page 17 of 17

1. That the petition for writ of habeas corpus (doc. 1) challenging the Florida

Department of Corrections’ July 11, 2008 decision to retain petitioner in close

management be DENIED.

2. That the clerk be directed to close the file.

3. That a certificate of appealability be DENIED.

At Pensacola, Florida this 25 day of January, 2010. th

 /s/ Miles Davis

MILES DAVIS

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be

filed within fourteen days after being served a copy hereof. Any different deadline

that may appear on the electronic docket is for the court’s internal use only, and

does not control. A copy of any objections shall be served upon any other parties. 

Failure to object may limit the scope of appellate review of factual findings. See 28

U.S.C. § 636; United States v. Roberts, 858 F.2d 698, 701 (11 Cir. 1988). th

Case No: 3:09cv340/WS/MD