IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

LOUIS REED, JR., 

Petitioner,

vs. Case No. 4:10cv438-MP/CAS

FLORIDA PAROLE COMMISSION and

MICHAEL D. CREWS, Secretary, 

Florida Department of Corrections,1

Respondents.

 /

REPORT AND RECOMMENDATION TO DISMISS § 2254 PETITION

Petitioner Louis Reed, Jr., proceeding pro se, filed a 28 U.S.C. § 2254 petition

on December 27, 2010. Doc. 1. After direction by this Court, Doc. 15, Petitioner

ultimately filed a second amended petition, Doc. 16. On August 11, 2011, Respondent

Florida Parole Commission (Commission) filed an answer, with exhibits. Doc. 19. 

Petitioner filed a reply thereto on August 30, 2011. Doc. 26. On September 29, 2011,

The Clerk of Court shall substitute Michael D. Crews as Secretary of the Florida 1

Department of Corrections in place of Kenneth Tucker. Michael Crews became

Secretary on December 17, 2012, and shall be automatically substituted pursuant to

Federal Rule of Civil Procedure 25(d). 
Page 2 of 13

Respondent Secretary of the Florida Department of Corrections (Department) filed an

answer, with exhibits. Doc. 27. Petitioner filed a reply thereto on October 4, 2011. 

Doc. 28. 

The matter was referred to the undersigned United States Magistrate Judge for

report and recommendation pursuant to 28 U.S.C. § 636 and Northern District of

Florida Local Rule 72.2(B). After careful consideration of all issues raised, the

undersigned has determined that no evidentiary hearing is required for disposition of

this matter. See Rule 8(a), R. Gov. § 2254 Cases in U.S. Dist. Cts. For the reasons

stated herein, the pleadings and attachments before the Court show the petition is

successive and should be dismissed. See Rule 4, R. Gov. § 2254 Cases in U.S. Dist.

Cts (authorizing dismissal “[i]f it plainly appears from the petition and any attached

exhibits that the petitioner is not entitled to relief” in federal court). 

Procedural History

On September 28, 1990, in Florida state court, Polk County Circuit Court case

number 89-1115, Petitioner Reed was convicted on three counts: (1) armed burglary,

(2) armed kidnaping, and (3) attempted first degree murder. Doc. 19 Ex. A. The

offenses occurred on March 15, 1989. Id. Reed was sentenced to twenty-five (25)

years in state prison on Count 1, followed by concurrent terms of fifteen years’

probation on Counts 2 and 3. Id. Reed had a prior felony conviction for manslaughter

in the second degree in Connecticut in 1980. Id. Ex. B. 

On April 23, 2001, Reed reached his release date for his state prison sentence

through the accumulation of jail credit, timed served, and 4854 days of gain-time, and

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began serving his probation terms. See id. Exs. C, M at 48-50 (ECF page #s). The

Polk County Circuit Court revoked Reed’s probation on October 7, 2004, after Reed

admitted to violating his probation terms. Id. Ex. D at 13-14. The court sentenced him

in case number 89-1115 to thirty (30) years in prison on Counts 2 and 3, to run

concurrent, with credit for the time he had served on the twenty-five year sentence on

Count 1. Id. 

On April 11, 2006, Reed reached the tentative release date on his prison

sentence for Counts 2 and 3. Id. Ex. E. The Florida Parole Commission (Commission)

ordered that Reed be released from prison on conditional release supervision, pursuant

to section 947.1405, Florida Statutes. Id.

In 2007, Reed filed a petition for writ of habeas corpus pursuant to § 2254 in the

Northern District of Florida, assigned case number 4:07cv47-SPM/WCS, and the case

was transferred to the Middle District because Reed’s convictions were imposed in Polk

County. Id. Ex. F at 5; see docket for Reed v. Fla. Parole Comm’n, 4:07cv47-SPM

Docs. 1 (petition), 4 (report and recommendation to transfer petition to Middle District),

9 (order adopting report and recommendation to transfer). The Middle District

transferred the case back to the Northern District of Florida, explaining that Reed was

not challenging the validity of his state court conviction from Polk County but, rather, he

argued he was improperly placed on conditional release supervision by the Florida

Parole Commission on April 12, 2006, because his Polk County sentence expired on

April 11, 2006, and asked that his scheduled termination date of September 5, 2022, for

conditional release supervision be stricken. Docket for Reed v. Fla. Parole Comm’n,

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4:07cv47-SPM Doc. 13 (Order to Transfer dated July 12, 2007); see Doc. 19 Ex. F at 9-

28. After the Commission filed its response, U.S. Magistrate Judge Allan Kornblum

entered a Report and Recommendation on March 20, 2008, explaining the venue was

always appropriate in the Middle District and re-transfer to the Northern District should

not have occurred, but also recommending the § 2254 petition be denied for failure to

exhaust state court remedies and the case dismissed without prejudice. Doc. 19 Ex. F

at 5-8. The district court adopted the Report and Recommendation on June 5, 2008,

and dismissed the cause without prejudice for failure to exhaust state court remedies. 

Id. at 1-3.

On September 4, 2008, the Commission issued a Warrant for Retaking

Conditional Release, alleging that Reed violated Condition 2(b) by leaving his county of

residence, Manatee County, on September 3, 2008, without first securing the consent

of his Conditional Release Officer. Id. Ex. G at 2-5. A final revocation hearing took

place on September 30, 2008, during which supervising officer Sandy Hotwagner and

Reed testified. Id. at 9-13. The examiner found Reed guilty of willfully violating a

substantial condition of supervision but recommended that Reed be restored to

supervision. Id. at 12-13. On October 29, 2008, the Commission rejected the

examiner’s recommendation and revoked Reed’s conditional release supervision,

effective September 15, 2008. Id. at 14. Pursuant to section 944.28(1), Florida

Statutes, the Department of Corrections forfeited the gain-time Petitioner had earned

prior to his release on conditional release supervision. See id. Ex. M at 39.

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On or about August 25, 2008, Reed filed a petition for writ of mandamus in the

Second Judicial Circuit, Leon County, Florida, assigned case number 2008-CA-2793. 

Id. Ex. H at 20-26. Reed argued that he should not be subject to certain terms and

conditions of conditional release because his offense date preceded the effective date

of section 947.1405(7)(a), Florida Statutes, and his termination date for conditional

release supervision exceeded the length of his criminal sentence. Id. The Commission

filed its response on or about October 31, 2008. Id. at 11-19. The circuit court issued

an order on July 9, 2009, denying Reed’s mandamus petition. Id. at 4-7. Reed

appealed to the First District Court of Appeal (DCA), in case number 1D09-3685. Id. at

2-3. The First DCA per curiam affirmed the order without an opinion on January 7,

2010. Id. 

Meanwhile, on December 1, 2008, Reed filed a petition for writ of habeas corpus

in the Second Judicial Circuit, Wakulla County, Florida, assigned case number 08-124-

CA. Id. Ex. I at 4-29. The Commission filed a response and Reed filed a reply. Id. at

64-83; see id. at 58. On August 6, 2009, the circuit court issued an order denying

Reed’s habeas corpus petition. Id. at 58-63. (During the pendency of this state habeas

proceeding, Reed had also filed a petition for writ of mandamus in the First DCA, case

number 1D09-3500; after the Commission advised the First DCA that the circuit court

had ruled on the habeas corpus petition, the First DCA denied the mandamus petition

as moot. Id. Ex. J.) 

On April 1, 2009, Reed filed a petition for writ of certiorari in the First DCA,

assigned case number 1D09-4448. Id. Ex. K at 6-44. On October 28, 2009, the

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Commission filed a response. See id. at 2. Reed filed a reply. See id. On December

17, 2009, the First DCA issued a one-sentence opinion denying the petition on the

merits. Id. at 3. Reed filed a motion for rehearing, which the First DCA denied on

January 13, 2010. See id. at 2. The mandate issued on February 2, 2010. Id. at 5. 

Thereafter, Reed filed at least three more federal habeas corpus petitions

pursuant to § 2254. First, on or about September 4, 2010, Reed filed a § 2254 petition

in the Northern District of Florida, and that petition was transferred to the Middle District,

in case number 8:10cv2107-SDM/EAJ. Id. Ex. L. In this petition, Reed challenged the

revocation of his conditional release and raised five grounds: (1) the Florida Parole

Commission’s decision was contrary to Florida law because the evidence presented at

the hearing did not establish any violation of his conditional release was willful; (2) the

revocation of his conditional release was illegal because the Commission refused to

appoint counsel to represent him during the proceedings; (3) the Commission

wrongfully disregarded the hearing examiner’s recommendation when it revoked, rather

than reinstating, his conditional release; (4) the Commission violated his due process

rights; and (5) the Commission’s revocation decision was invalid because it was based

solely on hearsay evidence. Doc. 19 Exs. L at 20-55, L-2 at 1-5. On May 12, 2011, the

district court issued an order, quoting extensively from the state circuit court order dated

August 6, 2009, denying Reed’s habeas corpus petition, and finding Reed received all

due process protections and failed to show the state court’s decision was unreasonable

or contrary to controlling U.S. Supreme Court precedent. Doc. 19 Exs. L-1 at 7-13. 

Accordingly, the district court denied Reed’s § 2254 petition and entered judgment on

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May 13, 2011. Reed v. Sec’y, Dep’t of Corr., No. 8:10cv2107-SDM/EAJ, Docs. 25 and

26. By order filed on January 31, 2012, the Eleventh Circuit Court of Appeals denied

Reed’s motion for a certificate of appealability, finding he failed to make the requisite

showing. Id. Doc. 35. 

Second, on September 27, 2010, Reed filed a § 2254 petition in the Northern

District of Florida, assigned case number 5:10cv264-MW/CJK. See Doc. 19 Ex. M. 

Reed ultimately filed a second amended § 2254 petition in that case, raising two

grounds: (1) the Department of Corrections’ calculation of the termination date of

Reed’s conditional release supervision violated his due process rights because it

improperly included the net gain-time Reed earned on his expired 25-year prison

sentence on Count 1; and (2) the Department of Corrections’ improper forfeiture of

4854 days of gain-time upon the revocation of Reed’s conditional release supervision

violated his due process rights and the only gain-time subject to such forfeiture was the

1137 days Reed earned on the sentence imposed on Counts 2 and 3 after he violated

probation. Reed v. Crews, No. 5:10cv264-MW/CJK, Doc. 36; see id. Doc. 70 at 5-6. 

The Florida Department of Corrections filed a response and exhibits. Id. Docs. 34 and

35. In a Report and Recommendation dated March 7, 2013, the U.S. Magistrate Judge

found the Commission and the Department of Corrections “did not unlawfully resurrect”

Reed’s prior 25-year sentence when considering the 4854 days of gain-time in

calculating his condition release supervision termination date, or when forfeiting the

4854 days of gain-time upon revocation of Reed’s conditional release. Id. Doc. 70 at

21. The magistrate judge found no due process or double jeopardy violation and,

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further, the state courts’ rejection of Reed’s claims was not contrary to, or an

unreasonable application of, clearly established federal law as determined by the

United States Supreme Court. Id. at 21-22. Accordingly, the magistrate judge

determined Reed was not entitled to federal habeas relief and recommended the

§ 2254 petition be denied. Id. at 22-23. The district court accepted and adopted the

Report and Recommendation by order dated March 25, 2013, and denied the habeas

petition with prejudice. Id. Doc. 71. By order filed on August 6, 2013, the Eleventh

Circuit denied Reed’s motion for certificate of appealability, finding Reed failed to make

the requisite showing and explaining, among other things, as to Reed’s gain-time

challenge, “federal courts are bound by the state court’s interpretation of its own laws,

and there are no extreme circumstances present here that would require this Court to

re-examine the state court’s interpretation of state law.” Id. Doc. 92 at 2; see Mullaney

v. Wilbur, 421 U.S. 684, 691 (1975). 

Third, on October 4, 2010, Reed filed the instant § 2254 proceeding. Doc. 1. 

Reed ultimately filed a second amended § 2254 petition. Doc. 16. On August 11,

2011, Respondent Florida Parole Commission filed an answer, with exhibits. Doc. 19. 

Reed filed a reply thereto on August 30, 2011. Doc. 26. On September 29, 2011,

Respondent Secretary of the Department of Corrections filed an answer, with exhibits. 

Doc. 27. Reed filed a reply thereto on October 4, 2011. Doc. 28. 

Case No. 4:10cv438-MP/CAS
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Analysis

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

Death Penalty Act of 1996 (AEDPA), federal courts may grant habeas corpus relief for

persons in state custody. Section 2254(d) provides, in pertinent part:

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 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). See Williams v. Taylor, 529 U.S. 362 (2000); Gill v. Mecusker,

633 F.3d 1272 (11th Cir. 2011). 

In this case, in his second amended § 2254 petition, Reed raises two grounds:

(1) Reed “has legal standing to seek writ of mandamus relief barring

Parole Commission from applying provisions sections 947.1405(7)(a)

Florida Statute (2003) an amended statute to Petitioner in this instant

case and the lower court order denying mandamus relief on ground one

‘was a departure from the essential requirements of law.’” Doc. 16 at 5.

(2) “The order denying ‘mandamus’ relief dated July 9, 2009 in which

stated that the circuit court finds that the appellant second argument . . .

that ‘his’ release from post sentence supervision was improperly

calculated using the (4854) days net gain-time from a prior expired (25)

years prison term sentence with the instant violation of probation

sentences extended (five) years (V.O.P.) term (30) years prison

sentences pursuant to section 944.275(4)(a)(3) ‘has’ been rendered

‘moot’ by the Petitioner Reed’s return to incarceration was a departure

from the essential requirements of law when even upon revocation of the

same ‘miscalculated’ conditional release supervision post sentence the

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case revocation of the post sentence was ordered on October 29th, 2008,

and Petitioner was reimprisoned instantly to prison to serve the same

‘miscalculated’ gain-time that was used to set the post sentence

termination date ‘of’ September 30, 2024 that gain-time will be forfeited as

in this instant case at bar is an ongoing manifested severe miscarriage of

justice in violation of U.S. Const. Amend. 14.” Doc. 16 at 11. 

Reed indicates that, for the first ground, the Florida Parole Commission is the

Respondent, and for the second ground, the Department of Corrections is the

Respondent. Id. at 18. 

Regarding the first ground, the Florida Parole Commission responds that

pursuant to Rule 9(b), Rules Governing § 2254 Cases in the U.S. District Courts, and

federal common law, “the successive/abuse of the writ doctrine applies to bar this

federal habeas petition or the respective claims in the instant federal habeas petition.” 

Doc. 19 at 13. The Commission explains that Reed’s arguments concerning his control

release supervision should and could have been raised in his federal habeas action in

the Middle District of Florida, case number 8:10cv2107-SDM/EAJ. Id. at 14. 

Regarding the second ground, the Department of Corrections responds that

Reed’s challenge to the Department’s application of the Florida gain-time statute is not

a cognizable federal claim and should be dismissed. Doc. 27 at 14-15, 16-18. The

Department explains that this is a state court issue that was previously litigated in state

court, and the Florida state courts determined the Department properly applied the

Florida gain-time statutes in calculating Reed’s sentence, including the forfeiture of his

gain-time as a result of the revocation of his conditional release. Id. at 16-18. In its

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response, the Florida Parole Commission points out that this ground was the subject of

the § 2254 petition in case number 5:10cv264-MW/CJK. Doc. 16 at 15.

Indeed, this Court finds that both of the grounds Reed presents in the instant

§ 2254 proceeding could have been or have already been presented, and decided, in

previous § 2254 proceedings. The first ground challenges the requirements of Reed’s

conditional release supervision and the Florida Parole Commission’s revocation of

Reed’s conditional release supervision on October 29, 2008. See Doc. 16 at 5-10. 

Reed previously challenged this revocation decision in an earlier § 2254 petition that

the Middle District of Florida denied on the merits by order dated May 12, 2011. Doc.

19 Exs. L-1 at 7-13. 

In his second ground, Reed challenges the Department of Corrections’

calculation and forfeiture of his gain-time, arguing the Department erred in using “the

(4854) days net gain time found in the (25) years prison term to add in the computation

of the sentence.” Doc. 16 at 16. This ground was already addressed in case number

5:10cv264-MW/CJK. In the Report and Recommendation in that case, the U.S.

Magistrate Judge explained that Florida’s gain-time and conditional release programs

are creatures of Florida state law” and “[t]his Court will not second guess the state

court’s interpretation of Florida law.” Reed v. Crews, No. 5:10cv264-MW/CJK, Doc. 70

at 17-18. The judge further explained that the Department’s forfeiture of 4854 days of

gain-time was consistent with Florida law and did not violate due process. Id. at 19-21.

Because Reed has thus already presented § 2254 challenges to these decisions

of the Florida Parole Commission and the Department of Corrections, the instant

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petition is successive. This Court cannot consider a second or successive § 2254

petition unless the Court of Appeals has authorized its filing. See 28 U.S.C.

§ 2244(b)(3); Burton v. Stewart, 549 U.S. 147 (2007) (holding that federal district court

lacked jurisdiction to entertain § 2254 petition because state inmate did not obtain order

from federal appeals court authorizing him to file second petition). Therefore, this

§ 2254 petition should be dismissed. 

Conclusion

Based on the foregoing, the instant habeas petition is successive and this Court

does not have jurisdiction to consider it. Accordingly, the second amended § 2254

petition (Doc. 16) should be dismissed. 

Certificate of Appealability

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,” 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).” Rule 11(b) provides that a timely notice of appeal

must still be filed, even if the court issues a certificate of appealability. 

Petitioner 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 (2000)

(explaining substantial showing) (citation omitted). Therefore, the Court should deny a

certificate of appealability in its final order.

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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 shall make any argument as to whether a certificate should issue by

objections to this report and recommendation.

Leave to appeal in forma pauperis should also be denied. See Fed. R. App. P.

24(a)(3)(A) (providing that before or after notice of appeal is filed, the court may certify

appeal is not in good faith or party is not otherwise entitled to appeal in forma pauperis).

Recommendation

It is therefore respectfully RECOMMENDED that the Court DISMISS Petitioner's

second amended § 2254 petition (Doc. 16). It is further RECOMMENDED that a

certificate of appealability be DENIED and that leave to appeal in forma pauperis be

DENIED. The Clerk shall substitute Michael D. Crews for Kenneth S. Tucker as

Respondent. 

IN CHAMBERS at Tallahassee, Florida, on September 30, 2013.

S/ Charles A. Stampelos 

CHARLES A. STAMPELOS

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

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

recommendations within fourteen (14) days after being served with a copy of this

report and recommendation. A party may respond to another party's objections

within fourteen (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. 4:10cv438-MP/CAS