Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

JEFFREY JEROME WALKER,

Petitioner,

v. CASE NO. 4:10-cv-00117-MP-WCS

FLORIDA PAROLE COMMISSION,

Respondent.

_____________________________/

O R D E R

This matter is before the Court on Report and Recommendation, Doc. 8, concerning

Petitioner’s amended § 2254 Petition, Doc. 4. The Magistrate Judge has recommended that the

petition be denied with prejudice, and a certificate of appealability denied. Petitioner objected to

the report and recommendation. This Court reviews objected-to analysis and conclusions de

novo. 

Petitioner challenges a January 2004 decision the Florida Parole Commission to set his

parole date for 2035. Doc. 5, pp. 4-8. Petitioner has pursued two civil rights actions pursuant to

42 U.S.C. § 1983 in the past, and in each he failed to attain relief. As a 28 U.S.C. § 2254

petition, however, this action is time-barred under the one year limitations period for filing. 28

U.S.C. § 2244(d)(1)(A)-(D). See Peoples v. Chatman, 393 F.3d 1352, 1353 (11th Cir. 2004)

(applying one year limitations period of § 2244(d) to habeas petition challenging state parole
Page 2 of 3

Case No: 4:10-cv-00117-MP-WCS

revocation); Chambers v. Florida Parole Commission, 257 Fed.Appx. 258, 259-261, 2009 WL

4275509 (11th Cir. 2009) (citing Chatman, concluding that regardless of whether the one year

was triggered by subsection (A) or (D) of § 2244(d)(1), petition challenging revocation of parole

was untimely).

Further, it is clear that Petitioner has not exhausted state court remedies as required by §

2254(b)(1). See also O'Sullivan v. Boerckel, 526 U.S. 838, 839, 845, 119 S.Ct. 1728, 1730,

1732, 144 L.Ed.2d 1 (1999) ("[f]ederal habeas relief is available to state prisoners only after they

have exhausted their claims in state court. 28 U.S.C. §§ 2254(b)(1), (c)" and in order to exhaust,

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

by invoking one complete round of the State's established appellate review process."). Petitioner

asserts that grounds one through four and eight through eighteen have not been previously

raised, but are now being raised in this court, "jointly and simultaneously with the Florida

Supreme Court in order to avoid laches and successiveness." Doc. 4, p. 11. He asserts that his

other grounds "were raised with respondent after initial interview," pursuant to § 1983, and in

the Eleventh Circuit. Id. Petitioner has written "NA" (not applicable) as to questions on the §

2254 form regarding exhaustion, and that he has not filed any other petitions or motions in state

court. Id., pp. 2-3. He indicated he had not "previously filed a § 2254 petition, or other pleading

regarding the validity of your state court confinement, in any federal court[.]"

Petitioner does not specify what he has filed in the Florida Supreme Court, but it is not

likely that his efforts there will exhaust state court remedies. In Florida, a petition for writ of

mandamus filed in the circuit court "is an accepted remedy for reviewing an order of the Florida

Parole Commission." Sheley v. Florida Parole Commission, 720 So.2d 216, 217 (Fla. 1998)

(citations omitted). See also Roth v. Crosby, 884 So.2d 407, 408 (Fla. 2d DCA 2004) (noting
Page 3 of 3

Case No: 4:10-cv-00117-MP-WCS

that a PPRD is challenged by petition for writ of mandamus against the Commission, filed in the

Circuit Court in Leon County, unless the Commission waives home venue privilege) (citations

omitted). The circuit court's order denying mandamus is reviewable either by appeal (if decided

on grounds other than the merits) or certiorari (if decided on the merits) in the state district court

of appeal. 884 So.2d 408, n. 2 (citing Sheley, other citation omitted). Review is therefore not

properly sought, at least in the first instance, in the Florida Supreme Court. According to the

petition, Petitioner has never pursued relief in the state circuit court or district court of appeal.

A ruling based on the statute of limitations is a decision on the merits for res judicata

purposes. Wakefield v. Cordis Corp., 304 Fed.Appx. 804 (11th Cir. 2008). Additionally,

Petitioner is not entitled to a certificate of appealability as he has not made a substantial showing

of the denial of a constitutional right. § 2253(c)(2); see also § 2254 Rule 11(a) (the district court

must issue or deny a certificate of appealability under § 2253(c)(2) when entering a final order

adverse to habeas corpus petitioner). Accordingly, it is

ORDERED AND ADJUDGED:

1. The Magistrate’s Report and Recommendation, Doc. 8, is ADOPTED and

incorporated herein. 

2. This petition is DISMISSED WITH PREJUDICE. 

3. A Certificate of Appealability is DENIED. 

DONE AND ORDERED this 22nd day of June, 2010

 s/Maurice M. Paul 

 Maurice M. Paul, Senior District Judge