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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

LOUIS REED, JR.,

Petitioner,

v. Case No. 5:10cv264/MW/CJK

MICHAEL D. CREWS,

Respondent.

___________________________________________________________________

REPORT AND RECOMMENDATION

Before the Court is a second amended petition for writ of habeas corpus filed

under 28 U.S.C. § 2254. (Doc. 36). Respondent filed an answer, submitting relevant

portions of the state court record. (Docs. 34, 35; see also Doc. 68). Petitioner 

replied. (Docs. 42, 69). 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 issuesraised by petitioner, the undersigned

concludes that no evidentiary hearing is required for the disposition of this matter. 

Rule 8(a) of the Rules Governing Section 2254 Cases in the United States District

Courts. The undersigned further concludes that the pleadings and attachments before

the Court show that petitioner is not entitled to federal habeas relief, and that the

petition should be denied.

BACKGROUND AND PROCEDURAL HISTORY

Petitioner was initially received into the Florida Department of Corrections
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(“DOC”) on November 2, 1990, having been sentenced on September 28, 1990, to 25

years in prison for Armed Burglary (Count 1), and concurrent terms of 15 years

probation for Armed Kidnapping and Attempted First Degree Murder (Counts 2 and

3), in Polk County Circuit Case Number 89-1115. (Doc. 35, App. at 95, 100-108).

1

The probationary terms were to run concurrent with each other and consecutive to the

25-year prison term. (Id.). All three offenses were committed on March 15, 1989. 

(Id.). 

On April 23, 2001, petitioner completed his 25-year prison term on Count 1,

and began serving his probationary terms on Counts 2 and 3. Petitioner had satisfied

the 25-year sentence through a combination of time physically served and gain-time

applied pursuant to Fla. Stat. § 944.275, as follows:

 411 Days Jail Credit 

 3860 Days Time Served from 9/28/90 to 4/23/01

 4854 Days Net Gain-time

 9125 Days (25 years)

(App. at 95-96).

Petitioner subsequently violated the terms of his probation and it was revoked

on October 7, 2004. (App. at 96, 112-125). Petitioner was sentenced to concurrent

terms of 30 years imprisonment on Counts 2 and 3. (Id.). The sentencing court

awarded petitioner 137 days violation of probation jail credit and directed the DOC

to “apply original jail time credit and [ ] compute and apply credit for time served and

unforfeited gain time previously awarded on Case/Count 2 and 3”, noting that

petitioner’s offenses were committed before October 1, 1989. (Id. at 122). The DOC

Unless otherwise noted, all references to the record are to the documents provided in 1

respondent’s appendix at Doc.35.

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interpreted the court’s language as an award of prior prison credit on Count 1 in

accordance with Tripp v. State, 622 So. 2d 941 (Fla. 1993). (App. at 96, 122, 128-

34). Tripp applies to guidelines sentences where a defendant is sentenced to a term

of prison on one case or count, to be followed by a term of probation on another case

or count, and both sentences were imposed using the same guidelines scoresheet. 

Tripp holds that because the two sentences were viewed together at sentencing, they

must continue to be viewed together following revocation of the probationary term. 

Id. Thus, if the probation is revoked and the defendant is sentenced to prison, the

defendant is entitled to credit for the time served on his prior prison term. Id. at 941. 

The DOC credited petitioner’s new cumulative 30-year sentence on Counts 2 and 3

with time petitioner served on the 25-year prison term on Count 1, which was

comprised of 411 days original jail credit, 3860 days actual time served and 4854

days gain-time. No gain-time was forfeited, because petitioner’s offenses were

committed prior to the October 1, 1989 enactment of the amendment to Fla. Stat. §

944.28(1) which authorized the forfeiture of gain-time upon revocation of probation. 

See Duncan v. Moore, 754 So. 2d 708, 710-11 (Fla. 2000). (Doc. 35, App. at 96).

On April 11, 2006, after serving less than two years on the cumulative 30-year

term, petitioner reached the tentative release date on the 30-year sentence. A tentative

release date isthe maximumsentence expiration date less gain-time earned. Fla. Stat.

§ 944.275. The Florida Parole Commission (“FPC”) ordered that petitioner be

released from prison to the terms and conditions of conditional release and that

petitioner remain on conditional release supervision for a period of time equal in

length to the amount of gain-time applied to reduce the incarcerative portion of

petitioner’s sentence on Count 3, that is, until September 5, 2022. (App. at 135-140);

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see also Mayes v. Moore, 827 So.2d 967, 970 (Fla. 2002) (holding that under

Florida’s conditional release program “any gain time an inmate receivesis converted

into conditional release supervision upon his or her release from prison.” ). At the

time of petitioner’s release, the 30-year term of imprisonment was comprised of the

following:

 137 Days VOP Jail Credit

+ 411 Days Original Jail Credit on Prior 25-year Prison Term

+ 551 Days Time Served from 10/7/04 to 4/11/06

+ 3860 Days Time Served from 9/28/90 to 4/23/01

+ 4854 Days Net Gain-time Earned on Prior 25-year Term

+ 600 Days Basic Gain-time Earned on Extended 5-year Term

pursuant to Fla. Stat. § 944.275(4)(a)(3)

+ 310 Days Additional Gain-time Earned on 30-year term

+ 317 Days Overcrowding Gain-time 

– 90 Days Gain-time Forfeited Due to Disciplinary Action

 10950 Days (30 years)

(App. at 96-97). On September 4, 2008, the FPC issued a Warrant For Retaking

Conditional Release, charging that petitioner violated his conditional release by

leaving his county of residence without first securing the consent of his Conditional

Release Officer. (App. at 96, 143). The FPC revoked petitioner’s conditional release

on October 29, 2008, ordering that the revocation be effective September 15, 2008,

with credit for April 6, 2007 to July 12, 2007 (credit from a prior violation in which

petitioner was restored to supervision). (App. at 96, 144, 141-42). The FPC did not

grant petitioner credit for the time he served on conditional release supervision. 

(App. at 96, 144). The DOC forfeited the gain-time petitioner had earned prior to his

release on Conditional Release, pursuant to Fla. Stat. § 944.28(1). (App. at 96-97). 

Section 944.28(1) was amended on July 1, 1988, prior to petitioner’s March 15, 1989

date of offense, to authorize the forfeiture of gain-time upon revocation of conditional

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release. See Fla. Stat. § 944.28(1) (providing that if conditional release is revoked,

“the department may, without notice or hearing, declare a forfeiture of all gain-time

earned according to the provisions of law by such prisoner prior to . . . his release. .

. .”). The forfeiture of petitioner’s gain-time included all gain-time that had been

applied to calculate his tentative release date on his 30-year term, which included the

gain-time from the prior 25-year term and new gain-time earned on the 30-year term. 

(Id.).

Petitioner challenged the forfeiture of his gain-time in state court. On July 26,

2009, petitioner filed a petition for writ of habeas corpus in the Circuit Court for

Jackson County, Florida, claiming that the DOC unlawfully forfeited gain-time

earned on petitioner’s original 25-year sentence. (App. at 1-77). The DOC filed a

response. (App. at 77-144). The Jackson County Circuit Court denied the petition

on the merits on February 3, 2010. (App. 177-81). Petitioner sought review of the

circuit court’s order through a petition for writ of certiorari filed in the Florida First

District Court of Appeal (“First DCA”). (App. at 182-99). The DOC filed a

response. (App. at 210-28). The First DCA denied the petition on September 1,

2010, in a one-sentence opinion: “The petition for writ of certiorari is denied on the

merits.” Reed v. Fla. Dep’t of Corr., 45 So. 3d 466 (Fla. 1st DCA 2010) (Table)

(copy at App. 231). The mandate issued October 18, 2010. (App. at 230).

Petitioner filed his original § 2254 in this Court on September 27, 2010. (Doc.

1, p. 33). Petitioner’s second amended petition, filed on May 6, 2011, raises two

grounds for relief:

1. The DOC’s calculation of the termination date of petitioner’s

Conditional Release supervision violated petitioner’s due process rights. 

Petitioner asserts that he was placed on conditional release supervision

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for too long by improperly including the net gain-time he earned on his

expired 25-year sentence on Count 1 (4854 days) to determine the

termination date of his conditional release supervision. Petitioner

argues that because he had fully satisfied his 25-year prison term at the

time he was conditionally released on Counts 2 and 3, the length of his

supervision should have been calculated based only on the amount of

gain-time petitioner earned on his violation of probation sentences (1137

days.). (Doc. 36, pp. 4-14).

2. The DOC’s improper forfeiture of 4854 days of gain-time upon the

revocation of petitioner’s conditional release supervision violated

petitioner’s due process rights. Petitioner argues that the only gain-time

subject to forfeiture upon revocation of his conditional release was the

1137 days of gain-time petitioner earned on the VOP sentence, and that

the DOC improperly forfeited an additional 4854 days of gain-time

petitioner had earned on his prior expired 25-year sentence. (Doc. 36,

pp. 15-23).

The essence of petitioner’s claims is that the consideration and forfeiture of 4854

days gain-time earned on his 25-year sentence (Count 1), a sentence that expired prior

to petitioner’s conditional release on his VOP sentences(Counts 2 and 3), unlawfully

revived the expired sentence in violation of due process. 

Respondent asserts that the FPC and not the DOC has the authority to

determine the length of a prisoner’s conditional release supervision, and that the DOC

is not the proper respondent for petitioner’s challenge to the calculation of the

termination date of his conditional release. (Doc. 34, pp. 11-12). Nonetheless,

respondent asserts that petitioner’s two grounds for relief are intertwined and can be

summarized as a single claim that the DOC unconstitutionally increased petitioner’s

sentence, and can be addressed together. (Id., p. 11). Respondent maintains that

petitioner’s claims are not cognizable on federal habeasreview, because they involve

purely state law issues. (Id., pp. 12-13). Respondent further argues that the

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calculation of petitioner’s conditional release termination date and forfeiture of gaintime did not violate due process, because they were done in accordance with

controlling state statutes and case law. (Doc. 34, pp. 14-24).

LEGAL STANDARDS

Claims Cognizable on Federal Habeas Review

Section 2254 “unambiguously provides that a federal court may issue a writ of

habeas corpusto a state prisoner ‘only on the ground that he is in custody in violation

of the Constitution or laws or treaties of the United States.’” Wilson v. Corcoran, 562

U.S. —, —, 131 S. Ct. 13, 15, 178 L. Ed. 2d 276 (2010) (per curiam) (quoting 28

U.S.C. § 2254(a)). “We have stated many times that ‘federal habeas corpus relief

does not lie for errors of state law.’” Estelle v. McGuire, 502 U.S. 62, 67, 112 S. Ct.

475, 116 L. Ed. 2d 385 (1991) (quoting Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.

Ct. 3092, 111 L. Ed. 2d 606 (1990)). This limitation on federal habeasreview applies

equally when a petition which truly involves only state law issuesis couched in terms

of alleged constitutional violations. Branan v. Booth, 861 F.2d 1507, 1508 (11th Cir.

1989); see also Johnson v. Rosemeyer, 117 F.3d 104, 110 (3rd Cir. 1997) (errors of

state law cannot be repackaged as federal errors simply by citing the United States

Constitution).

Section 2254 Standard of Review

Federal courts may issue habeas corpus relief for persons in state custody

pursuant to 28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective Death

Penalty Act of 1996 (AEDPA). Pub. L. 104-132, § 104, 110 Stat. 1214, 1218-19. 

Section 2254(d) provides, in relevant part:

(d) 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

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granted with respect to any claim that was adjudicated on the merits in

State court proceedings unless the adjudication of the claim–

(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) (2011).

The United States Supreme Court explained the framework for § 2254 review

in Williams v. Taylor, 529 U.S. 362, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000). The 2

appropriate test was described by Justice O’Connor as follows:

Under the “contrary to” clause, a federal habeas court may grant the writ

if the state court arrives at a conclusion opposite to that reached by this

court on a question of law or if the state court decides a case differently

than this Court has on a set of materially indistinguishable facts. Under

the “unreasonable application” clause, a federal habeas court may grant

the writ if the state court identifies the correct governing legal principle

fromthisCourt’s decisions but unreasonably applies that principle to the

facts of the prisoner’s case.

Id., 529 U.S. at 412-13 (O’Connor, J., concurring). 

Employing the Williams framework, on any issue raised in a federal habeas

petition upon which there has been an adjudication on the merits in a state court

Unless otherwise noted,references to Williams are to the majorityholding, written byJustice 2

Stevens for the Court (joined byJustices O’Connor, Kennedy, Souter, Ginsburg, and Breyer)in parts

I, III, and IV of the opinion (529 U.S. at 367-75, 390-99); and Justice O’Connor for the Court (joined

by Justices Rehnquist, Kennedy, Thomas, and – except as to the footnote – Scalia) in part II (529

U.S. at 403-13). The opinion of Justice Stevens in Part II was joined by Justices Souter, Ginsburg,

and Breyer. 

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proceeding, the federal court must first ascertain the “clearly established Federal

law,” namely, “the governing legal principle or principles set forth by the Supreme

Court at the time the state court render[ed] its decision.” Lockyer v. Andrade, 538

U.S. 63, 71-72, 123 S. Ct. 1166, 155 L. Ed. 2d 144 (2003). The law is “clearly

established” only when a Supreme Court holding at the time of the state court

decision embodies the legal principle at issue. Thaler v. Haynes, 559U.S. 43, 130 S.

Ct. 1171, 1173, 175 L. Ed. 2d 1003 (2010); Bowles v. Sec’y for Dep’t of Corr., 608

F.3d 1313, 1315 (11th Cir. 2010).

After identifying the governing legal principle(s), the federal court determines

whether the state court adjudication is contrary to the clearly established Supreme

Court case law. The adjudication is not contrary to Supreme Court precedent merely

because it fails to cite to that precedent. Rather, the adjudication is “contrary” only

if either the reasoning or the result contradicts the relevant Supreme Court cases. 

Early v. Packer, 537 U.S. 3, 8, 123 S. Ct. 362, 154 L. Ed. 2d 263 (2002) (“Avoiding

th[e] pitfalls [of § 2254(d)(1)] does not require citation to our cases – indeed, it does

not even require awareness of our cases, so long as neither the reasoning nor the

result of the state-court decision contradicts them.”). If the state court decision is

contrary to clearly established federal law, the federal habeas court must

independently consider the merits of the petitioner’s claim. See Panetti v.

Quarterman, 551 U.S. 930, 954, 127 S. Ct. 2842, 168 L. Ed. 2d 662 (2007).

If the state court decision is not contrary to clearly established federal law, the

federal habeas court next determines whether the state court “unreasonably applied”

the governing legal principles set forth in the Supreme Court’s cases. The federal

court defers to the state court’s reasoning unless the state court’s application of the

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legal principle(s) was “objectively unreasonable” in light of the record before the

state court. Williams, 529 U.S. at 409; see Holland v. Jackson, 542 U.S. 649, 652,

124 S. Ct. 2736, 159 L. Ed. 2d 683 (2004) (per curiam); cf. Bell v. Cone, 535 U.S.

685, 697 n. 4, 122 S. Ct. 1843, 152 L. Ed. 2d 914 (2002) (declining to consider

evidence not presented to state court in determining whether its decision was contrary

to federal law). An objectively unreasonable application of federal law occurs when

the state court “identifies the correct legal rule from Supreme Court case law but

unreasonably applies that rule to the facts of the petitioner’s case” or “unreasonably

extends, or unreasonably declines to extend, a legal principle from Supreme Court

case law to a new context.” Putman v. Head, 268 F.3d 1223, 1241 (11th Cir. 2001). 

A state court, however, may “decline to apply a specific legal rule that has not been

squarely established by [the Supreme Court]” without running afoul of the

“unreasonable application” clause. Knowles v. Mirzayance, 556 U.S. 111, 122, 129

S. Ct. 1411, 173 L. Ed. 2d 251 (2009). 

When faced with a state appellate court’s summary affirmance of a trial court’s

decision, the “unreasonable application” standard focuses on the state court’s ultimate

conclusion, not the reasoning that led to it. See Gill v. Mecusker, 633 F.3d 1272,

1287 (11th Cir. 2011) (citing Harrington v. Richter, — U.S. —, 131 S. Ct. 770, 786,

178 L. Ed. 2d 624 (2011)). The federal court must determine what arguments or

theories supported or could have supported the state court’s decision, and then ask

whether it is possible that fairminded jurists could disagree that those arguments or

theories are inconsistent with the holding in a prior Supreme Court decision. See

Richter, 131 S. Ct. at 786; see also Gill, 633 F.3d at 1292 (holding that the federal

district court may rely on grounds other than those articulated by the state court in

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determining that habeas relief was not warranted, so long as the district court did not

err in concluding that the state court’s rejection of the petitioner’s claims was neither

an unreasonable application of a Supreme Court holding nor an unreasonable

determination of the facts). In sum, “[a]s a condition for obtaining habeas corpus

from a federal court, a state prisoner must show that the state court’s ruling on the

claim . . . was so lacking in justification that there was an error well understood and

comprehended in existing law beyond any possibility for fairminded disagreement.” 

Richter, 131 S. Ct. at 786-87.

Section 2254(d) also allows federal habeasrelief for a claim adjudicated on the

merits in state court where that adjudication “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)(2). As with the “unreasonable

application” clause, the federal court applies an objective test. Miller-El v. Cockrell,

537 U.S. 322, 340, 123 S. Ct. 1029, 154 L. Ed. 2d 931 (2003) (holding that a state

court decision based on a factual determination “will not be overturned on factual

grounds unless objectively unreasonable in light ofthe evidence presented in the state

court proceeding.”). The “unreasonable determination of the facts” standard is

implicated only to the extent the validity of the state court’s ultimate conclusion is

premised on unreasonable fact finding. See Gill, 633 F.3d at 1292. 

When performing review under § 2254(d), the federal court presumes that all

factual determinations made by the state court are correct. 28 U.S.C. § 2254(e)(1). 

The petitioner bears “the burden of rebutting the presumption of correctness by clear

and convincing evidence.” Id.; see, e.g., Miller-El, 537 U.S. at 340 (explaining that

a federal court can disagree with a state court’s factual finding and, when guided by

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AEDPA, “conclude the decision was unreasonable or that the factual premise was

incorrect by clear and convincing evidence”). Neither the Supreme Court nor the

Eleventh Circuit has interpreted how § 2254(d)(2) and §2254(e)(1) interact in the

context of fact-based challenges to state court adjudications. Cave v. Sec’y for Dep’t

of Corr., 638 F.3d. 739 (11th Cir. 2011). However, the Eleventh Circuit recently 

declined to grant habeas relief under § 2254(d)(2) in the context of a state appellate

court’s summary affirmance, where it found that the validity of the state court

decision was not premised on the trial court’s unreasonable fact finding, and that the

petitioner failed to demonstrate “by clear and convincing evidence that the record

reflect[ed] an insufficient factual basis for affirming the state court’s decision.” Gill,

633 F.3d at 1292.

Only if the federal habeas court finds that the petitioner satisfied AEDPA and

§ 2254(d), does the court take the final step of conducting an independent review of

the merits of the petitioner’s claims. See Panetti, 551 U.S. 930, 954, 127 S. Ct. 2842. 

Even then, the writ will not issue unless the petitioner shows that he is in custody “in

violation of the Constitution or laws and treaties of the United States.” 28 U.S.C.

§ 2254(a). “If this standard is difficult to meet, that is because it was meant to be.” 

Richter, 131 S. Ct. at 786.

DISCUSSION

Petitioner’s argument mentions the constitutional principles of “due process”

and “jeopardy”. (Doc. 36, pp. 4, 8, 12, 23).

A. Clearly Established Federal Law

i. Due Process

In Swarthout v. Cooke, — U.S. —, —, 131 S. Ct. 859, 861, 178 L. Ed. 2d 732

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(2011), the United States Supreme Court reiterated the clearly established Federal law

governing claims asserted under the Due Process Clause: “[S]tandard analysis under

[the Due Process Clause] proceeds in two steps: We first ask whether there exists a

liberty or property interest of which a person has been deprived, and if so we ask

whether the procedures followed by the State were constitutionally sufficient.” Id.,

131 S. Ct. at 861 (citing Kentucky Dep’t of Corr. v. Thompson, 490 U.S. 454, 460,

109 S. Ct. 1904, 104 L. Ed. 2d 506 (1989)). 

ii. Double Jeopardy

The Double Jeopardy Clause provides: “[N]or shall any person be subject for

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

The Clause serves the function of preventing both “successive punishments and . . . 

successive prosecutions.” United States v. Dixon, 509 U.S. 688, 696, 113 S. Ct. 2849,

2855, 125 L. Ed. 2d 556 (1993) (citing North Carolina v. Pearce, 395 U.S. 711, 89

S. Ct. 2072, 23 L. Ed. 2d 656 (1969)). The protection against multiple punishments

prohibits the Government from “‘punishing twice, or attempting a second time to

punish criminally for the same offense.’” Witte v. United States, 515 U.S. 389, 396,

115 S. Ct. 2199, 2204, 132 L. Ed. 2d 351 (1995) (emphasis deleted) (quoting

Helvering v. Mitchell, 303 U.S. 391, 399, 58 S. Ct. 630, 633, 82 L. Ed. 917 (1938).

B. Federal Review of State Court Decision

The last reasoned state-court decision to address petitioner’s claims was the

state habeas court’s order denying relief. See Ylst v. Nunnemaker, 501 U.S. 797, 806,

111 S. Ct. 2590, 115 L. Ed. 2d 706 (1991) (holding that where there is one reasoned

state judgment rejecting the federal claim, later unexplained orders upholding that

judgment or rejecting the same claim are presumed to rest upon the same ground). 

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The state habeas court denied relief, explaining, in relevant part: 

Petitioner is not entitled to the requested relief. Petitioner’s gain

time was properly forfeited based upon the revocation of his conditional

release supervision pursuant to Section 944.28(1), Florida Statute (Supp.

1988). Because the response to Petitioner’s two claims is the same, the

ruling will address the claims together.

Petitioner was released to conditional release on April 11, 2006

after serving less than 2 years on a 30 year sentence. A substantial

portion of the time he did not have to serve was comprised of gain time. 

The gain time included the gain time applicable from his 25 year

sentence and the gain time applied to the five year extended portion of

his 30 year term.

The conditional release statute providesthat eligible inmates who

are released early through gain time must serve a term of post-release

supervision equal in length to the amount of gain time applied. Section

947.1405; Duncan v. Moore, 754 So. 2d 708, 710-711 (Fla. 2000);

Mayes v. Moore, 827 So. 2d 967, 972 (Fla. 2002). If the inmate

successfully completes the term of supervision, his sentence is expired. 

But if he does not, his supervision is revoked and he is returned to

prison where all gain time earned before release to conditional release

is forfeited.

In accordance with the law, Petitioner was released from his 30

year sentence after serving only two years due in large part to the

application of gain time which included the gain time from the 25 year

term and gain time earned on the five year extended terms, a total of

5,991 days gain time. Because he was released early due to gain time,

he had to serve a term of supervision 5,991 days in length. When he

was revoked, the 5,991 days of gain time were forfeited. See Mayes;

Duncan. 

In Petitioner’s case, the award of credit following VOP is

controlled by Tripp. Tripp held that in a probationary split case where

a term of prison is imposed for one offense and a term of probation is

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imposed for another offense, using the same guidelinesscoresheet, if the

probation is revoked and the inmate is resentenced to prison, credit for

prior prison term must be applied to the VOP sentence. This is often

referred to as “Tripp” credit. The Court held that the relationship

between guidelinessentences must be retained through VOP, even if the

sentences were imposed for different crimes, in order to preserve the

integrity of the guidelines. Thus, Petitioner is entitled to credit for the

25 year term of his 30 year term. Further, as in [sic] instructed in Green,

if the Tripp inmate committed his offense prior to October 1, 1989, the

gain time is forfeited and only the prison credit is applied. Petitioner

committed his offense prior to October 1, 1989. In accordance with

Green and Tripp, the Department applied credit from Petitioner’s 25

year term to his 30 year term. The credit included both prison credit and

gain time. There was no gain time forfeiture. See Gibson v. Florida

Department of Corrections, 885 So. 2d 376, 385 (Fla. 2004) (Finding

forfeiture of gain time in Tripp case lawful and rejecting argument that

the initial prison sentence is expired once the inmate is released to the

probation sentence such that forfeiture of gain time is unlawfully [sic].)

Once the Tripp credit applied, Petitioner served the 30 year

sentence in accordance with the law. Upon his release date, the 30 years

sentence was comprised of a total of 4,959 days physical time served

and 5,991 days gain time (time not served) for a total of 10,950 days (30

years). The 30 year sentence is conditional release eligible, therefore

whatever gain time was applied to the 30 year sentence to effectuate an

early release is part of the conditional release calculation; that is, 5,991

days. The gain time from the 25 year term retained its character as gain

time when applied to the 30 year term. Once applied, it was subject to

forfeiture from disciplinary infractions and revocation of conditional

release supervision.

Petitioner’s claim [is] that because his 25 year sentence is not

conditional release eligible, the gain time from the 25 year term cannot

be used toward conditional release on the 30 year eligible sentence. He

is mistaken. Gain time is not subject to conditional release eligibility;

sentences are conditional release eligible. Gain time is simply time not

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served on a sentence. The gain time from Petitioner’s 25 year term is

time he did not serve on his 30 year term, therefore, it is part of the

conditional release calculation. His conditional release supervision was

calculated based on all gain time used to get him out of prison early, as

was his forfeiture.

Inmates, like Petitioner, often claim that when gain time from a

prior term is applied to a VOP sentence, the gain time becomes the

equivalent of time served such that it can never be forfeited. The

Florida Supreme Court has made a point of correcting that line of

reasoning and explained that gain time remains gain time even when

applied to the new term. See Eldridge v. Moore, 760 So. 2d 888, 891

(Fla. 2000). Thus, the Department’s authority to forfeit the gain time

applied to the 30 year sentencesfor the conditional release violation was

not limited to the gain time earned since Petitioner’s return to custody

as a probation violator. The gain time initially applied to Petitioner’s 25

year sentence and later credited on the 30 year VOP sentences retained

its nature as gain time and was, therefore, subject to forfeiture for

revocation of Petitioner’s conditional release supervision in 2008.

Petitioner also claims that the Department has made him serve

more than his court imposed sentence. He relies on Canty. Canty

concerns concurrent sentences and has no application to the Petitioner’s

case. Moreover, he will not serve more than his current imposed

sentence. Petitioner is only serving out his gain time; i.e. the time he did

not have to serve on his sentences originally. See Duncan at 711.

The worst that can happen is that Petitioner serves his sentences

day for day. That is not an expansion of the court imposed sentence. 

See Duncan at 711 (“Due to the award of gain time, Duncan will be

released from prison before actually serving 42 months. The remaining

time will be served on supervision. Even if Duncan violates his

supervision and is returned to prison to serve 42 months “day-for-day,”

we can hardly say that such a sentence constitutes “cruel and unusual

punishment.”)

Case No: 5:10cv264/MW/CJK
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Lastly, Petitioners’ claimthat thisterm ofsupervision wasto [sic]

long is an issue within the sole purview of the Florida Parole

Commission. The Department of Corrections and the Florida Parole

Commission are two separate, distinct agencies with different powers

and duties. See Gay v. Singletary, 700 So. 2d 1220, 1221 (Fla. 1997). 

The parole Commission, rather that the Department, determines

eligibility for conditional release and sets the length and conditions of

supervision. See Section 947.1405, Florida Statute (Supp. 1988); See

also Rivera v. Singletary, 707 So. 2d 326 (Fla. 1998) (conditional

release is administered by the Parole Commission); Westlund v. Florida

Parole Commission, 637 So. 2d 52 (Fla. 1st DCA 1994) (Parole

Commission determines when an inmate will be on conditional release

and sets terms and conditions of release). The Parole Commission also

determines whether an inmate had violated the terms and conditions of

such release and whether a violation warrants revocation of conditional

release supervision. See Section 947.141 and 947.1405(2), Florida

Statutes (Supp. 1988-2001). The Department follows parole

Commission orders and forfeits gain time under sections 944.28(1) and

947.141, Florida Statute, upon revocation of clemency, conditional

release, probation or community control, provision release, parole, or

control release. As the Department of Corrections does not have

authority to determine an inmate’s eligibility for or placement on

conditional release supervision, or length of supervision, the Parole

Commission is the proper party on these matters.

(Doc. 35, App. at 178-180).

The state court’s findings offact are presumed correct. 28 U.S.C. § 2254(e)(1). 

The state court concluded that petitioner’s 4854 days of gain-time was properly

considered in calculating petitioner’s conditional release supervision termination

date, that petitioner’s 4854 day so gain-time was properly forfeited upon revocation

of petitioner’s conditional release, and that petitioner was not required to serve more

time than hisjudicially-imposed sentence. Florida’s gain-time and conditional release

programs are creatures of Florida state law. This Court will not second guess the

Case No: 5:10cv264/MW/CJK
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state court’s interpretation of Florida law. See Callahan v. Campbell, 427 F.3d 897,

932 (11th Cir. 2005) (“‘It is a fundamental principle that state courts are the final

arbiters ofstate law, and federal habeas courtsshould not second-guessthem on such

matters.’” (quoting Herring v. Sec’y, Dep't of Corr., 397 F.3d 1338, 1355 (11th Cir.

2005)).

Further, as the state court explained, the consideration (and later forfeiture) of

petitioner’s 4854 days of gain-time from his prior 25-year term did not unlawfully

resurrect a sentence that had fully served and did increase petitioner’s sentence

beyond the sentence originally imposed by the sentencing court. The Florida

Supreme Court has said: “[C]onditional release is not an increased punishment

program at all, but rather an assistance program designed to ‘help these former

inmates in bridging the gap between prison and the outside world.’” Mayes, 827

So.2d at 971 (quoting Duncan v. Moore, 754 So.2d at 710). As further explained in

Mayes:

Prior to the 1988 enactment of the conditional release statute, prison inmates’

sentences expired when, with the combination of actual time served and gain

time, they were released fromprison. Since 1988, however, the Legislature has

provided that certain inmates must remain under supervision, as determined by

the commission, after release from prison for a period of time equal to the

amount of gain time awarded. This supervision has been provided under the

terms ofthe statute, and thus, all have constructive knowledge ofthe applicable

law.

827 So.2d at 971-72 (footnotes omitted). Petitioner’s offenses were committed on

March 15, 1989. When petitioner reached his tentative release date on the VOP

sentences, he was required to serve a portion of his sentences, equivalent to the

amount of gain-time that had been credited to his VOP sentences, under supervision

by the FPC and subject to the FPC’s conditions. At the time of petitioner’s 

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conditional release on April 11, 2006, petitioner had actually served less than two

years of the cumulative 30-year sentence imposed by the sentencing court in October

of 2004 upon petitioner’s violation of his probation. Through the benefit of the 4854

gain-time credit to petitioner’s VOP sentences, petitioner was released from

imprisonment to conditional release supervision earlier than he would have been

without the credit. 

Further, the DOC’s forfeiture of 4854 days of gain-time was consistent with

Florida law and did not violate due process principles. Florida Statutes Section

944.28(1) provides:

(1) If a prisoner is convicted of escape, or if the clemency, conditional

release as described in chapter 947, probation or community control as

described in chapter 948, provisional release as described in s. 944.277,

parole or control release as described in s. 947.146 granted to him is

revoked, the department may, without notice or hearing, declare a

forfeiture of all gain-time earned according to the provisions of law by

such prisoner prior to such escape or his release under such clemency,

conditional release, probation, community control, provisional release,

control release or parole.

Fla. Stat. § 944.28(1) (2006) (footnotes omitted) (2006). This provision wasin place

at the time petitioner committed his offenses on March 15, 1989.

To encourage releaseesto complywith the terms and conditions ofsupervision,

the conditional release programprovidesthat if the releasee failsto do so, the releasee

will be returned to prison, and his gain-time will be forfeited; thus retention of gaintime is dependent not only upon satisfactory behavior while in prison but also upon

satisfactory behavior while under supervision after release. Duncan, 754 So. 2d at

710. Petitioner had only a conditional interest in the 4854 days gain-time credit upon

his release on conditional release supervision; he did not have a vested liberty interest

Case No: 5:10cv264/MW/CJK
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in that gain-time. Petitioner could retain his gain-time only if he complied with the

conditions under which it was given.

Although Florida Statutes § 944.28(1) provides that the DOC may, without

notice or hearing, declare a forfeiture of all gain-time earned by a prisoner prior to his

release on conditional release supervision if his conditional release is revoked,

Florida law expressly provides that prior to revocation of conditional release, a

releasee must be afforded an opportunity for a hearing. See Fla. Stat. § 947.141(3)

(2006). If the releasee elects to proceed with a hearing, Florida law provides that the

he must receive written notice of the following: (1) the alleged violation with which

he is charged, (2) his right to be represented by counsel, (3) his right to be heard in

person, (4) his right to secure, present, and compel the attendance of witnesses, (5)

his right to produce documents on his own behalf, and (6) his right of access to all

evidence used against him and to confront and cross-examine adverse witnesses. Id.

At the revocation hearing, the State must present competent, substantial evidence that

the releasee indeed violated the conditions of his supervision. See Tedder v. Parole

Comm’n, 842 So. 2d 1022, 1025-26 (Fla. 1st DCA 2003). After the hearing, the

presiding official must make findings of fact, and two members of the FPC must enter

an order determining whether the charge has been sustained. See Fla. Stat. §

947.141(4) (2006). If the charge issustained, the FPC may revoke conditional release

and return the releasee to prison to serve the remainder of the sentence imposed. Id.

Only then is the releasee’s previously earned gain time forfeited. Fla. Stat. §§

947.141(6), 944.28(1) (2006).

This statutory process complies with the due process requirements set forth by

the Supreme Court as applicable to parole revocation proceedings. In Morrissey v.

Brewer, the Supreme Court held that “minimumrequirements of due process” include

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the following:

(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.

408 U.S. 471, 489, 92 S. Ct. 2593, 2604, 33 L. Ed. 2d 484 (1972). The minimal due

process protections which attach to revocation proceedings do not place upon the

prosecutor the burden of proving beyond a reasonable doubt that the defendant

committed the alleged acts. Rather, the Commission may revoke conditional release

when it isreasonably satisfied that the “conduct of the [releasee] has not been as good

asrequired by the conditions of [release].” See United States v. Taylor, 931 F.2d 842,

848 (11th Cir. 1991); United States v. Penn, 721 F.2d 762 (11th Cir. 1983).

Here, assuming arguendo that the minimum due process protections outlined

in Morrissey apply to conditional release revocations, petitioner does not allege that

he did not receive the procedural protections afforded by Fla. Stat. § 947.141 prior

to the revocation of his conditional release. The DOC forfeited petitioner’s gain-time

only after the revocation occurred. See Fla. Stat. § 944.28(1). The DOC’s revocation

of petitioner’s gain-time did not violate due process. 

CONCLUSION

The FPC and DOC did not unlawfully resurrect petitioner’s prior 25-year

sentence when it considered the 4854 days of gain-time in calculating petitioner’s

conditional release supervision termination date, or when it forfeited the 4854 days

Case No: 5:10cv264/MW/CJK
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of gain-time upon revocation of petitioner’s conditional release. There was no due

process or double jeopardy violation. The state court’s rejection of petitioner’s claims

was not contrary to, or an unreasonable application of, clearly established Federal law

as determined by the United States Supreme Court. Petitioner is not entitled to

federal habeas relief. 

CERTIFICATE OF APPEALABILITY

Rule 11(a) of the Rules Governing Section 2254 Cases in the United States

District Courts provides: “[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).” 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 petitioner in this case fails to make a 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 the meaning

of this term) (citation omitted). Accordingly, the court should 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.” Rule 11(a), Rules Governing Section 2254 Cases. If there is an objection to

this recommendation by either party, that party may bring such argument to the

attention of the district judge in the objections permitted to this report and

recommendation.

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Accordingly, it is respectfully RECOMMENDED:

1. That the second amended petition for writ of habeas corpus (doc. 36) be

DENIED, and the Clerk be directed to close the file.

2. That a certificate of appealability be DENIED.

At Pensacola, Florida this 7th day of March, 2013.

/s/Charles J. Kahn, Jr.

CHARLES J. KAHN, JR.

UNITEDSTATES MAGISTRATEJUDGE

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 (11th Cir. 1988).

Case No: 5:10cv264/MW/CJK