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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

RICHARD L. JOHNSON,

Petitioner,

v. CASE NO. 4:10-cv-0498-MP-GRJ

BRIAN DEMARAIS, et al.,

Respondents.

_____________________________/

REPORT AND RECOMMENDATION

This matter is before the Court on Doc. 31, Respondent’s motion to dismiss

Petitioner’s amended petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. 

(Doc. 27.) Petitioner is a prisoner in the custody of the Florida Department of

Corrections and seeks habeas corpus relief in connection with a 2007 prison

disciplinary conviction for possession of a weapon, for which he was punished by the

loss of 100 days of gaintime. For the reasons discussed below, it is recommended that

the motion to dismiss be GRANTED.

The Amended Petition

Petitioner challenges a disciplinary conviction for possession of a weapon.1

(Doc. 27.) He reports his sentence as 18 months of close management; the disciplinary

hearing report indicates he lost 100 days of gain time and received 60 days of

disciplinary confinement. (Docs. 27, 31 at Exh. B, p. 1.) Petitioner states that he

To the extent Petitioner challenges the disciplinary report for refusing to work 1

received a few hours prior to the weapon allegation, it is moot because the refusal to

work was dismissed by the disciplinary review team because the officer’s statement of

facts did not support the charge. (Doc. 31, Exh. A.)

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pleaded not guilty to the possession of a weapon charge and appealed to the circuit

court in Tallahassee and to the First District Court of Appeal. As grounds for relief,

Petitioner alleges that the findings of the disciplinary review term were in error. In

support of his contention, Petitioner alleges that on the date in question, August 24,

2007, he was placed in confinement at 6:30 a.m. for refusing to work. At 7:35 p.m. the

same day, he was accused of being in possession of a weapon, and the officer noted

on the second report that Petitioner was placed in confinement pending the outcome of

the report. Petitioner argues that the second report’s note about Petitioner being

placed in confinement is conflicting because he was already in confinement. As relief,

Petitioner seeks $150,000. (Doc. 27.)

Procedural Background

The undersigned previously recommended that this case be dismissed because

the face of the original petition reflected that Petitioner had not exhausted state-court

remedies with respect to the challenged disciplinary conviction. (Doc. 12.) Petitioner

filed objections alleging that he did pursue state court remedies “sometime year of

2008” by petitioning for a writ of mandamus in circuit court and unsuccessfully

appealing to the First District Court of Appeal. (Doc. 14.) The district judge remanded

the matter to the undersigned for a determination whether the claims in Petitioner’s

objections make a difference in the Court’s analysis. (Doc. 16.) Petitioner was given

an opportunity to amend his petition and the amended petition (Doc. 27) was served

upon Respondent, who filed the instant motion to dismiss. (Doc. 31.) 

Standard of Review

It is a long-standing prerequisite to the filing of a federal habeas corpus petition

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that the petitioner have exhausted available state court remedies, 28 U.S.C. §

2254(b)(1) , thereby giving the State the “‘opportunity to pass upon and correct’ alleged 2

violations of its prisoners' federal rights.” Duncan v. Henry, 513 U.S. 364, 365 (1995)

(quoting Picard v. Connor, 404 U.S. 270, 275 (1971) (citation omitted)). “To satisfy the

exhaustion requirement, the petitioner must have fairly presented the substance of his

federal claim to the state courts.” Picard, 404 U.S. at 277-78. To fully exhaust, “state

prisoners 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 (1999) (citing 28 U.S.C. § 2254(c)).

Failure to exhaust is proper grounds for dismissal of the petition. Keeney v.

Tamayo-Reyes, 504 U.S. 1, 10 (1992).

If a Florida prisoner wishes to challenge a disciplinary sanction imposed by the

DOC, he must file a petition for habeas corpus or mandamus relief in the appropriate

state trial court and, if unsuccessful, he must file a petition for certiorari review in the

appropriate state appellate court. See Jones v. Fla. Dep’t of Corr., 615 So.2d 798 (Fla.

1st DCA 1993) (holding that appropriate remedy to seek review of order denying

 Section 2254 provides, in pertinent part, that: 2

(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. 

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administrative appeal of disciplinary report against prisoner is by petition for

extraordinary relief in circuit court, and if petition is denied, prisoner may then seek

review of final order of circuit court); White v. Moore, 789 So.2d 1118 (Fla. 1st DCA

2001) (after exhausting administrative remedies regarding disciplinary sanction

imposed by DOC, inmate filed petition for writ of mandamus in Circuit Court in and for

Leon County, and upon being denied relief, properly sought certiorari review from First

DCA); see also 41 Fla. Jur. 2d, Prisons and Prisoners, § 233 (2009) (“Upon exhausting

the administrative remedies available for redress of a grievance, an inmate may, if

judicial action is necessary, invoke the jurisdiction of the circuit court, generally in the

county of incarceration. The appropriate remedy in this situation is for the inmate to file

a petition for extraordinary relief in the Circuit Court which, if denied, may then be

appealed to the District Court of Appeal.”) (citing Jones v. Wainwright, 298 So.2d 542

(Fla. 2d DCA 1974); Jones, 615 So.2d at 798) (emphasis added).

Discussion

The face of the original petition reflected that Petitioner had not exhausted statecourt remedies with respect to the challenged disciplinary conviction. Pursuant to Rule

4, Rules Governing Habeas Corpus Petitions Under Section 2254, “[i]f it plainly appears

from the petition and any attached exhibits that the petitioner is not entitled to relief in

the district court, the judge must dismiss the petition.” In his subsequent objections,

Petitioner alleged to have filed a writ of mandamus in the Eighth Judicial Circuit in Leon

County followed by an appeal to the First DCA. Petitioner provided no other details in

his objections; further, Leon County is in the Second Judicial Circuit, not the Eighth. In

his amended petition, Petitioner contends that he unsuccessfully appealed to the circuit

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court in Tallahassee and the First DCA but was unsuccessful. Petitioner provides no

other information about his alleged state court remedies in connection with the

disciplinary conviction for possession of a weapon. (Doc. 27.)

While Petitioner appears to have exhausted his administrative remedies, there is

no indication, other than his vague, unsupported assertions, that he challenged the

disciplinary report for possession of a weapon in the state courts. Respondent has

reviewed and presented docket information for the Second and Eighth Judicial Circuits,

where in only one instance did Petitioner challenge a disciplinary report. In that Second

Judicial Circuit case, Case No. 2011-CA-900, Petitioner challenged a December 29,

2010, disciplinary report for lying to staff. Petitioner’s petition for writ of mandamus was

denied and his subsequent appeal to the First DCA was dismissed. (Doc. 31, Exhs. E,

L.) A review of the dockets in the remaining DCAs also fails to indicate that Petitioner

filed any other action challenging any disciplinary report in those courts. (Id. at Exh. L.)

Petitioner has failed to exhaust his state court remedies and his amended petition is to

be dismissed. 

Because Petitioner did not appeal his disciplinary conviction within 30 days from

the final disposition of his disciplinary proceedings (which occurred in 2007), and he is

now procedurally barred from doing so, he has procedurally defaulted his claim. When

a petitioner fails to properly exhaust a federal claim in state court, and it is obvious that

the unexhausted claim would now be procedurally barred under state law, the claim is

procedurally defaulted. Bailey v. Nagle, 172 F.3d 1299, 1303 (11 Cir. 1999). Federal

th

habeas courts are precluded from reviewing the merits of procedurally defaulted claims

unless the petitioner can show either (1) cause for the failure to properly present the

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claim and actual prejudice from the default, or (2) that a fundamental miscarriage of

justice would result if the claim were not considered. Id. at 1302, 1306. Petitioner

makes no claim that he can show cause and prejudice for the default, and there is

nothing in the record that suggests that a fundamental miscarriage of justice would

result if the Court does not consider the claims. Accordingly, the instant habeas petition

is procedurally defaulted and foreclosed from federal review.

Petitioner’s claim also fails on the merits because based on the facts presented

in the amended petition, no violation of Petitioner’s due process rights occurred. The

Supreme Court has held that when a prison disciplinary proceeding may result in the

loss of time credits, a prisoner is entitled to the following three procedural protections:

(1) advance written notice of the charges and at least 24 hours to prepare a defense;

(2) an opportunity, consistent with institutional safety and correctional goals, to call

witnesses and present documentary evidence in his own behalf; and (3) a written

statement by the fact-finder of the evidence relied upon and the reasons for the

disciplinary action. Wolff, 418 U.S. at 563-66 (1974). Due process standards are

satisfied if the findings of the disciplinary officer are supported by “some evidence.”

Superintendent, Mass. Corr. Inst., v. Hill, 472 U.S. 445, 447 (1985). 

Petitioner merely disagrees with the findings of fact made by the disciplinary

review team. Petitioner argues that “it cannot be believable” that he was charged with

possession of a weapon while already in administrative confinement. The disciplinary

reports reflect that the weapon was confiscated from Petitioner’s locked locker. 

Petitioner’s argument that he had to be present at the time the weapon was found is

without merit. There is no indication in the amended petition that Petitioner was not

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afforded notice, the opportunity to present some evidence on his behalf, or that a

written statement of the factfinder was not issued. (Doc. 27.)

Finally, the undersigned notes that Petitioner seeks as relief monetary damages

in the amount of $150,000. Monetary damages cannot be awarded in a habeas corpus

action. See, e.g., Nelson v. Campbell, 541 U.S. 637, 646 (2004).

In light of the foregoing, it is respectfully RECOMMENDED that the motion to

dismiss (Doc. 31) be GRANTED, that the amended petition, Doc. 27, be DISMISSED,

and that a certificate of appealability be DENIED.

IN CHAMBERS this 21 day of April 2012. 

st

s/Gary R. Jones 

GARY R. JONES

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.

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