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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

LEROY FERGUSON,

Petitioner,

vs.

CASE NO. 4:10cv232-MP/WCS

EDWIN G. BUSS, Secretary, 

Florida Department of Corrections,1

Respondent.

 /

REPORT AND RECOMMENDATION

This is a petition for writ of habeas corpus filed by Leroy Ferguson pursuant to 28

U.S.C. § 2254. Doc. 1. Petitioner challenges a prison disciplinary report dated June 6,

2008, for violation of Rule 9-35, Chapter 33-601.314, "establishing or attempting to

establish a business or personal relationship with any staff member." Id., p. 4, p. 4 on

ECF (the electronic docket).

1

 Edwin G. Buss was appointed as Secretary of the Florida Department of

Corrections on February 14, 2011, and is substituted for Walter A. McNeil pursuant to

FED. R. CIV. P. 25(d).

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 Respondent has filed a motion to dismiss. Doc. 12. Respondent also filed

exhibits. Doc. 13. Reference herein to exhibits are those filed as doc. 13.

Petitioner filed a "motion for rehearing," assuming that his petition had been

denied. Doc. 16. I entered an order advising Petitioner that his petition had not been

denied, and extending the time for filing a response to the motion to dismiss to April 8,

2011. Doc. 17. Instead of filing a response, Petitioner filed an amended petition, doc.

18, and a response to the motion to dismiss. Doc. 19. Leave to file an amended

petition has not been granted, but the two documents will be considered together as a

response to the motion to dismiss.

Petitioner is serving a life sentence for first degree murder, with a mandatory 25

year term. Doc. 18, p. 1; doc. 13-1 on ECF, p. 2. The sentence is parole eligible. Doc.

12, p. 5.

Petitioner asserts that he was disciplined for passing a note to a female officer

suggesting that she "establish a relationship" with Petitioner after he is released. Doc.

1, p. 1 (p. 4 on ECF). He asserts that this was a false accusation. Id., p. 2 (p. 5 on

ECF). He alleges he was found guilty of a violation of regulation 9-35, attempting to

establish a personal relationship with a staff member, based upon the written testimony

of the officer. Id. He was placed into disciplinary confinement for 60 days and lost 180

days of gain time. Id., p. 3 (p. 6 on ECF). Petitioner contends that he was subjected to

this disciplinary action in violation of substantive and procedural due process. Id., p. 7-

22 (pp. 10-25 on ECF).

Plaintiff did not have a liberty interest protected by procedural due process with

regard to placement into disciplinary confinement for 60 days. Rodgers v. Singletary,

Case No. 4:10cv232-MP/WCS

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142 F.3d 1252, 1253 (11th Cir. 1998) (holding that inmate did not show that he "was

deprived of a constitutionally protected liberty interest as defined in Sandin" where he

did not lose gain time and was only held in confinement for about two months), citing

Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995); Harris v.

Truesdell, 79 Fed.Appx. 756, 758-759 (6th Cir.(Mich.) Oct 23, 2003) (not selected for

publication in the Federal Reporter, No. 03-1440) (60 days of punitive segregation is not

an atypical and significant hardship and does not give rise to a due process liberty

interest). See also, Sanders v. Reeder, 2011 WL 1768850 (S.D. Ill. May 07, 2011) (No.

CIV. 11-331-GPM):

The United States Court of Appeals for the Seventh Circuit has noted that

"an inmate's liberty interest in avoiding segregation [is] very limited or even

nonexistent," and terms of segregated confinement of six months or less

generally do not implicate due process. Marion v. Columbia Corr. Inst.,

559 F.3d 693, 697 & n. 2 (7th Cir.2009) (collecting cases). See also

Lekas v. Briley, 405 F.3d 602, 612 (7th Cir.2005) (ninety days in

disciplinary segregation did not violate due process); Hoskins v. Lenear,

395 F.3d 372, 374–75 (7th Cir.2005) (sixty days in disciplinary segregation

did not violate due process); Thomas [v. Ramos] , 130 F.3d at 760–62[2]

(seventy days in disciplinary segregation did not violate due process);

Terrell v. Godinez, 966 F.Supp. 679, 683 (N.D. Ill.1997) (sixty days in

disciplinary segregation did not violate due process).

2011 WL 1768850, *3.

Further, since Petitioner is serving a life sentence, he has no liberty interest

protected by procedural due process in gaintime.

"[U]nder a life sentence, he cannot earn gain time, no matter how

exemplary his conduct may be while incarcerated." Tal-Mason v. State,

700 So.2d 453, 455 (Fla. 4th DCA 1997), citing Fla. Stat. § 944.275(3)(a);

Burdick v. State, 584 So.2d 1035, 1038-39 (Fla. 1st DCA 1991) (noting

that a prisoner serving a life term could accumulate incentive gain time "on

2

 130 F.3d 754 (7th Cir. 1997).

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paper," which would only be credited if the life sentence were commuted

to a term of years, after service of the minimum mandatory term),

approved in part and quashed in part (other grounds), 594 So.2d 267

(Fla.1992). Departmental Procedure Number 601.301 on Inmate

Discipline provides that:

Inmates serving a life term, certain mandatory sentences or

death sentences cannot earn or lose gain time. However, the

[disciplinary hearing] team is authorized to recommend loss

of gain time for these inmates for two reasons: (i) Loss of

gain time indicates the seriousness of the disciplinary action;

and (ii) Loss of gain time may be applicable if the courts

convert a life or death sentence to a term of years. . . .”

. . . Prisoners in Florida serving a life sentence, however, assuming that

they are beyond any 25 year mandatory term or do not have any such

mandatory term to serve, try to live “DR free” for ten years so as to be

eligible for executive clemency. . . . .

Since Plaintiff cannot "earn" gaintime, he has no due process liberty

interest in it. While he potentially might benefit from executive clemency if

he remains "DR free" for ten years, or he might potentially benefit from the

gaintime if his sentence were to be commuted to a term of years, these

events are too speculative to give rise to a liberty interest in this gaintime

protected by due process. See Conlogue v. Shinbaum, 949 F.2d 378, 380

(11th Cir. 1991) (concluding no liberty interest arose from possibility of

discretionary grant of incentive good time), cert. denied, 506 U .S. 841

(1992); Cook v. Wiley, 208 F.3d 1314, 1323 (11th Cir.2000) ("Because the

§ 3621(e)(2)(B) sentence reduction [for conviction for a nonviolent offense]

is left to the unfettered discretion of the BOP, the statute does not create a

constitutionally protected liberty interest."); Venegas v. Henman, 126 F.3d

760, 764 (5th Cir.1997) ("loss of the mere opportunity to be considered for

discretionary early release is too speculative to constitute a deprivation of

a constitutionally protected liberty interest"), cert. denied, 523 U.S. 1108

(1998); Osterback v. Johnson, Middle District of Florida Case Number

2:97cv314-FTM-16DNF, Order of June 2, 2003, District Judge John H.

Moore II, doc. 92, Exhibit A, p. 4.

Osterback v. Crosby, 2004 WL 964139, *4 (N.D. Fla. 2004) (No. 4:01cv76-WS/WCS).3

3

 WestLaw erroneously reports this as a Middle District of Florida case.

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The effect of this disciplinary report upon Petitioner's future parole prospects is

too speculative to give rise to any constitutional claim.

Nor does Conner's situation present a case where the State's action will

inevitably affect the duration of his sentence. Nothing in Hawaii's code

requires the parole board to deny parole in the face of a misconduct

record or to grant parole in its absence, Haw.Rev.Stat. §§ 353-68, 353-69

(1985), even though misconduct is by regulation a relevant consideration,

Haw.Admin.Rule § 23-700-33(b) (effective Aug. 1992). The decision to

release a prisoner rests on a myriad of considerations. And, the prisoner

is afforded procedural protection at his parole hearing in order to explain

the circumstances behind his misconduct record. Haw.Admin.Rule §§

23-700-31(a), 23-700-35(c), 23-700-36 (1983). The chance that a finding

of misconduct will alter the balance is simply too attenuated to invoke the

procedural guarantees of the Due Process Clause.

Sandin, supra, 515 U.S. at 487, 115 S.Ct. at 2302; Osterback, supra. All of this is true

in Florida. The Florida Parole Commission has discretion to give such weight as it might

deem necessary, or no weight at all, to this disciplinary report. 

Further, even if this case involved a denial of parole, Petitioner does not have a

due process liberty interest in parole in Florida. While not binding precedent, the

guidance from a recent unpublished Eleventh Circuit case, which accurately tracks the

well-established due process law as to parole in Florida, is persuasive:

A civil rights action, brought pursuant to § 1983, must allege that (1) the

complainant was deprived of a federal right (protected by either the

Constitution or federal statute) by (2) a person acting under color of state

law. Griffin v. City of Opa-Locka, 261 F.3d 1295, 1303 (11th Cir.2001). 

As a general rule, in order to sustain a procedural due process violation,

one must have a liberty interest created by the United States Constitution

or by a state. Monroe v. Thigpen, 932 F.2d 1437, 1441 (11th Cir.1991). 

Interests protected by the Due Process Clause may be created by prison

regulations, see Wolff v. McDonnell, 418 U.S. 539, 556-58, 94 S.Ct. 2963,

2975, 41 L.Ed.2d 935 (1974), and state statutes and regulation, Vitek v.

Jones, 445 U.S. 480, 488, 100 S.Ct. 1254, 1261, 63 L.Ed.2d 552 (1980). 

The Constitution does not confer a liberty interest in parole, Monroe, 932

F.2d at 1441, and the Florida statutes do not create a liberty interest in

parole, because the decision whether to release an inmate on parole is a

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matter committed to the discretion of the Commission without the mandate

of statute, Staton v. Wainwright, 665 F.2d 686, 688 (5th Cir. Unit B 1982). 

There 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. 

Damiano v. Florida Parole and Probation Comm'n, 785 F.2d 929, 932

(11th Cir.1986). See also Hunter v. Florida Parole & Probation Comm'n,

674 F.2d 847 (11th Cir.1982) (holding no due process violation could be

shown through an allegation that the Florida Parole and Probation

Commission improperly calculated a prisoner's "presumptive parole

release date").

Walker v. Florida Parole Com'n, 299 Fed.Appx. 900, 901-902 (11th Cir.(Fla.) Nov 06,

2008) (not selected for publication in the Federal Reporter, No. 07-13524) (emphasis

added). For these reasons, Petitioner has failed to state a claim for denial of procedural

due process.

The only potential substantive due process claim would be if Respondent had

admitted that Petitioner was disciplined based upon false evidence. Respondent has

not admitted that. Indeed, the evidence at the disciplinary hearing was contested. Cf.,

Walker, 299 Fed.Appx. At 902, quoting Monroe v. Thigpen, 932 F.2d 1437, 1441 (11th

Cir.1991): 

Although an inmate has no due-process right to an error-free

determination of parole eligibility, see Greenholtz v. Inmates of Neb. Penal

and Corr. Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 2103-04, 60 L.Ed.2d

668 (1979), a prison official may not engage in "arbitrary and capricious"

or "flagrant or unauthorized action," Thomas v. Sellers, 691 F.2d 487, 489

(11th Cir. 1982), such as knowingly or admittedly relying on false

information in making parole decisions, Monroe, 932 F.2d at 1442 n. 11. 

However, prisoners do not state a due process claim by simply asserting

that erroneous information might have been used during their parole

consideration. Slocum v. Georgia State Bd. of Pardons and Paroles, 678

F.2d 940 (11th Cir.1982). 

The allegations in this petition do not present any no substantive due process claim. 

For these reasons, the motion to dismiss should be granted.

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Certificate of Appealability

Section 2254 Rule 11(a) provides that "[t]he district court must issue or deny a

certificate of appealability when it enters a final order adverse to the applicant," and 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)." A timely notice of appeal must still be

filed, even if the court issues a certificate of appealability. § 2254 Rule 11(b).

I find no substantial showing of the denial of a constitutional right. § 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, I

recommend that the court deny a certificate of appealability in its final order.

The second sentence of Rule 11(a) provides: "Before entering the final order,

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

issue." The parties may make argument as to whether a certificate should issue by

objections to this report and recommendation.

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Conclusion

Accordingly, it is RECOMMENDED that petition for writ of habeas corpus filed by

Leroy Ferguson pursuant to 28 U.S.C. § 2254 challenging a prison disciplinary report

dated June 6, 2008, for violation of Rule 9-35, Chapter 33-601.314, "establishing or

attempting to establish a business or personal relationship with any staff member," be

DENIED WITH PREJUDICE and that a certificate of appealability be DENIED pursuant

to § 2254 Rule 11(a).

IN CHAMBERS at Tallahassee, Florida, on June 17, 2011.

s/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR.

UNITED STATES MAGISTRATE JUDGE

 

NOTICE TO THE PARTIES

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

recommendations within 14 days after being served with a copy of this report and

recommendation. A party may respond to another party's objections within 14

days after being served with a copy thereof. Failure to file specific objections

limits the scope of review of proposed factual findings and recommendations.

Case No. 4:10cv232-MP/WCS

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