FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 NOVEMBER 10, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 08-13455

Non-Argument Calendar

________________________

D. C. Docket No. 07-21731-CV-UUB

DREW C. HARTLEY,

Petitioner-Appellant,

versus

WARDEN OF FLORIDA STATE PRISON,

ATTORNEY GENERAL OF FLORIDA,

Respondents-Appellees.

________________________

No. 08-15292

Non-Argument Calendar

________________________

D. C. Docket No. 07-22683-CV-MGC

DREW C. HARTLEY,

Petitioner-Appellant,
versus

WARDEN RANDALL BRYANT,

Respondent,

ATTORNEY GENERAL OF THE STATE OF FLORIDA,

Bill McCollum,

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,

Walter A. McNeil,

Respondents-Appellees.

________________________

Appeals from the United States District Court

for the Southern District of Florida

_________________________

(November 10, 2009)

Before TJOFLAT, BLACK and PRYOR, Circuit Judges.

PER CURIAM:

Petitioner, Drew C. Hartley, is a Florida prison inmate. He petitioned the

district court pursuant to 28 U.S.C. §§ 2241 and 2254 for a writ of habeas corpus,

seeking relief from the loss of eligibility to earn incentive gain-time following a

disciplinary proceeding. The district court dismissed his petitions on the ground

that he failed to make a substantial showing of the denial of a federal right. He

appealed the court’s decision, and we granted a certificate of appealability on one

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issue: “Whether the district court erred in concluding that liberty interests were not

implicated by [petitioner’s] loss of the eligibility to earn incentive gain-time

because of his disciplinary report.”

“[S]tate statutes may create liberty interests that are entitled to procedural

protections of the Due Process clause [of the Fourteenth Amendment].” Vitek v.

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

petitioner states a cognizable claim that he has been denied due process of law if he

shows “a legitimate claim of entitlement . . . through statutory language creating a

protectable expectation.” Slocum v. Georgia State Bd. of Pardons & Paroles, 678

F.2d 940, 941 (11th Cir. 1982). In Conlogue v. Shinbaum, 949 F.2d 378, 380

(11th Cir. 1991), we held that no due process liberty interest arose from the

possibility that a prisoner may receive a discretionary grant of incentive good time.

See also Francis v. Fox, 838 F.2d 1147, 1149 (11th Cir. 1988) (“when the statute is

framed in discretionary terms there is not a liberty interest created.”). The question

we must decide is whether Florida law, including regulations governing the

custody of prison inmates, creates a legitimate expectation that an inmate will earn

gain-time under the relevant circumstances, not solely on the basis of a state

decision-maker’s exercise of discretion. See Sultenfuss v. Snow, 35 F.3d 1494,

1499-1500 (11th Cir. 1994) (en banc) (parole context).

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Florida law provides the following, with respect to incentive gain-time:

(1) The department is authorized to grant deductions from

sentences in the form of gain-time in order to encourage

satisfactory prisoner behavior, to provide incentive for

prisoners to participate in productive activities, and to

reward prisoners who perform outstanding deeds or

services.

(2)(a) The department shall establish for each prisoner

sentenced to a term of years a “maximum sentence

expiration date,” which shall be the date when the sentence

or combined sentences imposed on a prisoner will expire.

In establishing this date, the department shall reduce the

total time to be served by any time lawfully credited.

. . . .

(3)(a) The department shall also establish for each

prisoner sentenced to a term of years a “tentative release

date” which shall be the date projected for the prisoner’s

release from custody by virtue of gain-time granted or

forfeited as described in this section. The initial tentative

release date shall be determined by deducting basic gaintime granted from the maximum sentence expiration date.

Other gain-time shall be applied when granted or restored

to make the tentative release date proportionately earlier;

and forfeitures of gain-time, when ordered, shall be applied

to make the tentative release date proportionately later.

. . . .

(4)(b) For each month in which an inmate works

diligently, participates in training, uses time constructively,

or otherwise engages in positive activities, the department

may grant incentive gain-time in accordance with this

paragraph. The rate of incentive gain-time in effect on the

date the inmate committed the offense which resulted in his

or her incarceration shall be the inmate’s rate of eligibility

to earn incentive gain-time throughout the period of

incarceration and shall not be altered by a subsequent

change in the severity level of the offense for which the

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inmate was sentenced.

. . . .

3. For sentences imposed for offenses committed on or

after October 1, 1995, the department may grant up to 10

days per month of incentive gain-time, except that no

prisoner is eligible to earn any type of gain-time in an

amount that would cause a sentence to expire, end, or

terminate, or that would result in a prisoner's release, prior

to serving a minimum of 85 percent of the sentence

imposed. For purposes of this subparagraph, credits

awarded by the court for time physically incarcerated shall

be credited toward satisfaction of 85 percent of the

sentence imposed. Except as provided by this section, a

prisoner shall not accumulate further gain-time awards at

any point when the tentative release date is the same as that

date at which the prisoner will have served 85 percent of

the sentence imposed. State prisoners sentenced to life

imprisonment shall be incarcerated for the rest of their

natural lives, unless granted pardon or clemency.

. . . .

(7) The department shall adopt rules to implement the

granting, forfeiture, restoration, and deletion of gain-time.

Fla. Stat. § 944.275 (2009).

The Florida Administrative Code contains procedures concerning award of

incentive gain-time. Subsection (3) of Section 33-601.101 sets forth detailed

methods for evaluating a prisoner’s “institutional adjustment” as reflected in

“evaluations from security, work and program components.” Many factors are

considered, including hygiene, appearance of clothing, adherence to rules and

respect for others, maintenance of living quarters, work performance, and program

performance. Id.

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Subsections (5) and (6) provide:

(5) Disqualifications. The following conditions will

disqualify an inmate for an award of incentive gain time

for the period stated.

(6) Inmates in disciplinary confinement status are not

eligible for a work/program rating even if assigned to

work or programs while in disciplinary confinement. . .

(a) Disciplinary or court action. An inmate is not eligible

to receive incentive gain time for the month in which

there is an infraction of the rules of the Department or the

laws of the State for which he is found guilty . . . Any

inmate who is found guilty of a disciplinary report on or

after April 21, 1996 and who is serving a sentence

imposed for an offense committed on or after October 1,

1995 shall be eligible to earn incentive gain time as

follows: . . .

2. For disciplinary reports in which the final approved

action is less than or equal to 30 days confinement or less

than or equal to 30 days loss of gain time, the inmate

shall not be eligible to earn incentive gain time for three

months following the month in which the disciplinary

infraction occurred. The three month period of

ineligibility shall not begin to run until the inmate is in

the department’s custody and would be otherwise eligible

to earn gain time but for the disciplinary action or new

offense.

3. For disciplinary reports in which the final approved

action is greater than 30 days confinement or greater than

30 days loss of gain time, or where the inmate was

convicted of an offense occurring while committed to the

Department of Corrections, the inmate shall not be

eligible to earn incentive gain time for six months

following the month in which the disciplinary infraction

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or offense occurred. The six month period of ineligibility

shall not begin to run until the inmate is in the

department’s custody and would be otherwise eligible to

earn gain time but for the disciplinary action or new

offense.

F.A.C. 33-601.101 (2005).

Here, nothing in Florida law required the prison officials to grant petitioner

incentive gain-time, even in the absence of either the April 2005 or the May 2005

disciplinary decision. See Fla.Stat. § 944.275; F.A.C. 33-601.101. Indeed,

whether he would have actually been awarded incentive gain-time in any given

month depended upon a number of factors tied to his future behavior, and the

amount of the gain-time awarded, if any, was entirely within the discretion of the

Department of Corrections officials who were making these evaluations. See

Fla.Stat. § 944.275; F.A.C. 33-601.101; Francis, 838 F.2d at 1149. Thus,

petitioner cannot show that he had a legitimate expectation of gain-time. See

Sultenfuss, 35 F.3d at 1499-1500. Therefore, the loss of the eligibility to earn

incentive gain-time provided by Florida law is not a sufficient liberty interest to

invoke the protections of the Due Process Clause.

The judgment of the district court is, accordingly,

AFFIRMED.

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