# CROSS v. INCH

> District Court, S.D. Florida · December 21, 2020

URL: https://www.frixlaw.com/law-library/cases/10118528

## Case

- **Court:** District Court, S.D. Florida
- **Decided:** December 21, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10118528

## How later opinions describe it (automated extraction)

- concluding that a habeas petition, raising claims of “due process and equal protection” about the Florida Parole Commission’s decision on the petitioner’s “presumptive parole release date,” was governed by both §§ 2241 and 2254

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

CASE NO. 20-60999-CV-ALTMAN

CRAIG CROSS,

Petitioner,

vs.

FLORIDA
DEPARTMENT OF
CORRECTIONS and
MARK S. INCH,

Respondents.

____________________________/

ORDER
Craig Cross, a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus
under 28 U.S.C. § 2254. See Petition [ECF No. 1]. The Court referred the Petition to Magistrate
Judge Lisette M. Reid, see [ECF No. 12], who recommended that it be dismissed for lack of
subject-matter jurisdiction, see Report and Recommendation (the “Report”) [ECF No. 15]. In that
Report, Magistrate Judge Reid concluded both that the Petition was a “second or successive”
challenge to a Florida state-court conviction—which Mr. Cross had already attacked
(unsuccessfully) in an earlier federal habeas petition—and that Mr. Cross had failed to seek the
necessary preauthorization from the Eleventh Circuit to proceed in this Court. See id. at 1–2.
Having reviewed the record and the governing law, the Court now ADOPTS the Report1 and
DISMISSES the Petition for lack of subject-matter jurisdiction.

1 (with certain caveats, emendations, and supplementation, see infra).
THE HISTORY
In 1994, Mr. Cross filed a habeas petition in this Court challenging his first-degree murder
conviction, entered on June 15, 1984, in the State Circuit Court in and for Broward County,
Florida. See Petition for Writ of Habeas Corpus (“1994 Habeas Petition”), Cross v. Sec’y, Fla.
Dep’t of Corr., No. 94-cv-06354-WJZ (S.D. Fla. Apr. 20, 1994), ECF No. 1. In that 1994 Habeas

Petition, he raised only one claim: that “[t]he trial court erred in denying [his] motion to strike the
jury panel after [the] prosecutor selectively challenged prospective black jurors solely on the basis
of their race.” Id. at 4. The then-assigned magistrate judge recommended that this first petition be
denied on the merits. See Report and Recommendation (the “1994 Report”), Cross v. Sec’y, Fla.
Dep’t of Corr., No. 94-cv-06354-WJZ (S.D. Fla. Apr. 20, 1994), ECF No. 8.2 When Mr. Cross did
not object to the 1994 Report, the district court adopted it and dismissed his 1994 Habeas Petition.
See Final Order of Dismissal, Cross v. Sec’y, Fla. Dep’t of Corr., No. 94-cv-06354-WJZ (S.D.
Fla. Apr. 20, 1994), ECF No. 9.
Fast forward to 2020. Mr. Cross has returned to federal court to challenge the same June
15, 1984 judgment, entered in Case No. 83-12801-CF. See Petition at 1–2.3 This time, he advances

four attacks on his sentence. First, he says that his “Florida juvenile life sentence [ ] with parole
eligibility” violates the Eighth and Fourteenth Amendments. Id. at 9. Second, he derides as a
“[m]anifest injustice” the Florida courts’ denial of two Rule 3.850 motions he filed in 2015 and

2 Although, in his first petition, Mr. Cross referred to his June 15, 1984 first-degree murder
conviction as “Case No. 84-1559,” see 1994 Habeas Petition, the magistrate judge correctly called
it “Case No. 83-12801-CF,” see generally 1994 Report. In using the “84-1559” number, Mr. Cross
was (apparently) referring to the docket number for his direct appeal. See Cross v. State, 467 So.
2d 1012 (Fla. 4th DCA 1985) (designated as Case No. 84-1559).
3 Mr. Cross originally filed this Petition in the Northern District of Florida, but that court
transferred it to this District because this is where Mr. Cross was convicted. See Order Transferring
Case [ECF No. 10].
2017. Id. at 11. Third, he argues that his was an “[i]llegal sentence” because, under “the pre-1994
statute,” the sentence was “virtually guaranteed to be just as lengthy or the practical equivalent of
a life sentence without the possibility of parole.” Id. at 13. Fourth, he claims that it was a
“[m]iscarriage of justice” for the state court to sentence a juvenile to a life sentence without parole.
Id. at 15.

Magistrate Judge Reid concluded that the Petition is “second or successive” because it
“attack[s] the same state court conviction” Mr. Cross challenged in the 1994 Habeas Petition. See
generally Report. And, since Mr. Cross never sought—or obtained—preauthorization from the
Eleventh Circuit, Magistrate Judge Reid said, this Court lacks subject-matter jurisdiction over this
case. Id. Although Mr. Cross filed a timely “objection” to the Report, he doesn’t really object
(legally or factually) to any part of it. See generally Objection [ECF No. 16]. Instead, he simply
asks the Court to “stay proceeding[s]” until the Eleventh Circuit “grants authorization[ ] in this
case.” Id. at 1.
THE LAW

“Parties filing objections to a magistrate’s report and recommendation must specifically
identify those findings objected to.” Marsden v. Moore, 847 F.2d 1536, 1548 (11th Cir. 1988). The
Court must conduct a de novo review of any part of the Report that has been “properly objected
to.” FED. R. CIV. P. 72(b)(3); see also 28 U.S.C. § 636(b)(1) (providing that the district court “shall
make a de novo determination of those portions of the [report and recommendation] to which
objection is made”). Portions of a report and recommendation to which no objection has been
raised, however, are reviewed for clear error. See Lombardo v. United States, 222 F. Supp. 2d
1367, 1369 (S.D. Fla. 2002); see also Macort. v. Prem, Inc., 208 F. App’x 781, 784 (11th Cir.
2006) (per curiam) (“[I]n the absence of a timely filed objection, a district court need not conduct
a de novo review, but instead must only satisfy itself that there is no clear error on the face of the
record in order to accept the recommendation.” (internal quotation marks and citations omitted)).
The Court “may accept, reject, or modify, in whole or in part, the findings or recommendations
made by the magistrate judge.” 28 U.S.C. § 636(b)(1).
ANALYSIS

The Court is satisfied that the Report was not clearly erroneous, and that all four of Mr.
Cross’s claims were “second or successive” challenges to his June 15, 1984 first-degree murder
conviction (in Case No. 83-12801-CF). Because Mr. Cross sought to file another habeas petition
challenging that same judgment, he was required to “move in the appropriate court of appeals for
an order authorizing the district court to consider the [petition].” 28 U.S.C. § 2244(b)(3)(A).4 But
he concedes that he did not obtain preauthorization from the Eleventh Circuit—and so, this Court
lacks jurisdiction to entertain his claims. See Osbourne v. Sec’y, Fla. Dep’t of Corr., 968 F.3d
1261, 1264 (11th Cir. 2020) (“Absent authorization from [the Eleventh Circuit], the district court
lacks jurisdiction to consider a second or successive habeas petition.”).

The Eleventh Circuit has, however, instructed district courts to “look behind the label of a
motion filed by a pro se inmate and determine whether the motion is, in effect, cognizable under
a different remedial statutory framework.” United States v. Jordan, 915 F.2d 622, 624–25 (11th
Cir. 1990). And Mr. Cross certainly could have constructed his claims, not as challenges to his
underlying first-degree murder sentence, but as either (1) attacks against the Florida Parole
Commission’s decisions or (2) assertions to some right to resentencing under Florida law. Mr.

4 For our purposes, it does not matter that Mr. Cross now challenges his sentence, whereas, in the
1994 Habeas Petition, he attacked his conviction. “Whether a petition is second or successive
depends on the judgment challenged,” and “[t]he conviction and sentence together make up the
criminal judgment.” Osbourne v. Sec’y, Fla. Dep’t of Corr., 968 F.3d 1261, 1264 (11th Cir. 2020)
(internal quotation marks and citations omitted).
Cross does, after all, cite to the fact that, after parole hearings in 2005, 2012, and 2019, his parole
was extended to 2097. See Petition at 9, 13. And, by mentioning “Fla. 2014-220,” id. at 9, he may
be suggesting—although he does not say so—that he’s entitled, under Florida law, to a review of
his sentence, which (he says) was imposed for a crime he committed when he was a juvenile. See
Petition at 15.5 In either scenario, one could argue, his Petition would not be “second or

successive.”
But the Court cannot act as Mr. Cross’s lawyer—rewriting his Petition to include either (1)
challenges to the results of his parole hearings or (2) requests for relief under a state statute. See
Shuler v. Ingram & Assocs., 441 F. App’x 712, 716 n.3 (11th Cir. 2011) (per curiam) (noting that
courts do not have “license to serve as de facto counsel or to rewrite an otherwise deficient pleading
in order to sustain an action.”); cf. Castro v. United States, 540 U.S. 375, 386–88 (2003) (Scalia,
J., concurring) (reminding courts not to recharacterize habeas petitions since “even fully informed
district courts that try their best not to harm pro se litigants by recharacterizing may nonetheless
end up doing so because they cannot predict and protect against every possible adverse effect that

may flow from recharacterization”).
Mr. Cross here claims only that “Florida juvenile sentences with parole eligibility violate[
] the Eighth and Fourteenth Amendments,” that he received an “illegal sentence,” and that he
suffered both a “manifest injustice” and a “miscarriage of justice” when he was sentenced. See
Petition at 9, 13. Notably, he cites his parole hearings as “supporting facts” for only two of those
four claims. See id. As redress, he asks, not for a new parole hearing, but for his “sentence to be

5 Cf. Ruiz v. Florida, 2019 WL 4418996, at *2 (N.D. Fla. Aug. 16, 2019), report and
recommendation adopted, 2019 WL 4417482 (N.D. Fla. Sept. 16, 2019) (explaining that Florida
law permits state courts to “review and reduce the sentences of individuals who committed certain
crimes before they turned 18 years old after they have served a portion of their sentence.” (citing
FLA. STAT. § 921.1402 and Martinez v. State, 256 So. 3d 897, 898 (Fla. 4th DCA 2018))).
vacated and remanded to lower courts to be resentenced.” Id. at 19. Mr. Cross, in sum, is
challenging the constitutionality of his underlying sentence—something he could have done in his
1994 Habeas Petition. Indeed, Mr. Cross admits that he raised his first and third claims in his direct
appeal in state court. See id. at 9, 13. The Petition is thus “second or successive”—and this Court
lacks jurisdiction to consider it.6

6 Even if Mr. Cross did intend to challenge the results of the parole decisions—or to ask for
another parole hearing (or even a resentencing under state law)—his claims would (for three
reasons) fail on the merits.
First, if Mr. Cross had claimed that he was wrongfully denied a parole hearing, this Court
would have had to dismiss that claim because it would be cognizable only under 42 U.S.C. § 1983.
See Kerlin v. Barnard, 742 F. App’x 488 (11th Cir. 2018) (per curiam) (affirming the dismissal of
a parole challenge brought under § 2241 because “[w]e agree with the district court that [the
petitioner’s] claim—that Georgia officials refused to determine his parole eligibility—is only
cognizable under § 1983”).
Second, if he were contending that his confinement was illegally premised on some
unconstitutional parole decision, that claim might be cognizable as a habeas petition under §§
2241 and 2254. See Thomas v. Crosby, 371 F.3d 782, 784–87 (11th Cir. 2004) (concluding that a
habeas petition, raising claims of “due process and equal protection” about the Florida Parole
Commission’s decision on the petitioner’s “presumptive parole release date,” was governed by
both §§ 2241 and 2254). And such a recharacterized petition would not necessarily be “second or
successive” to the 1994 Habeas Petition, as it would be his first challenge to these parole decisions
(which occurred after 1994). See Restucci v. Bender, 599 F.3d 8, 10 (1st Cir. 2010) (per curiam)
(noting that a claim premised on the wrongful denial of parole is not “second or successive” where
the prisoner didn’t have the opportunity to challenge the denial in a prior § 2254 petition). But that
claim would (still) fail because there is “no federal constitutional right to parole,” and “Florida’s
parole statutes do not create a liberty interest because the Florida Parole Commission retains
discretion over whether to grant or deny parole.” Harrell v. Fla. Parole Comm’n, 479 F. App’x
234, 236 (11th Cir. 2012) (per curiam) (citing Damiano v. Fla. Parole & Prob. Comm’n, 785 F.2d
929, 931–32 (11th Cir. 1986)). And Mr. Cross has never come close to suggesting that the
Commission acted in some “flagrant or unauthorized” way towards him—nor has he claimed that
it ever treated him (or the process) “arbitrarily and capriciously,” such that he may be entitled to
relief on the merits. See Monroe v. Thigpen, 932 F.2d 1437, 1441 (11th Cir. 1991) (“[B]y relying
on the false information in [the plaintiff’s] file, the Board has exceeded its authority. . . and treated
[him] arbitrarily and capriciously in violation of due process.”); see also Thomas v. Sellers, 691
F.2d 487, 489 (11th Cir. 1982) (“[A]bsent flagrant or unauthorized action by a parole board[,] the
discretionary power vested in a parole board will not be interfered with by the Federal courts.”).
Third, if Mr. Cross intended to base one (or all) of his claims on the interpretation or
application of Florida’s juvenile resentencing law, see Fla. Stat. § 921.1402, rather than on a
federal constitutional right, then those claims would fail too. See Branan v. Booth, 861 F.2d 1507,
1508 (11th Cir. 1988) (“[A] habeas petition grounded on issues of state law provides no basis for
One final thing: Because the Court lacks jurisdiction over the Petition, it declines to stay
this case pending preauthorization from the Eleventh Circuit. Several district courts in this Circuit
have likewise refused to stay habeas actions in similar circumstances, concluding that they lacked
jurisdiction to do so. See, e.g., Andrews v. United States, 2017 WL 5558405, at *2 (M.D. Ga. Feb.
28, 2017), report and recommendation adopted, 2017 WL 5558406 (M.D. Ga. Apr. 5, 2017)

(collecting cases and explaining that, “[b]ecause this Court lacks jurisdiction to consider
Petitioner’s second or successive motion, the Court is without authority to stay the matter”).7
***
Because the Petitioner has filed a “second or successive” petition without preauthorization
from the Eleventh Circuit, the Court lacks subject-matter jurisdiction to consider his claims.
Accordingly, the Court ADOPTS the Report [ECF No. 15] and DISMISSES the Petition without
prejudice.

habeas relief.”); Branton v. Sec’y, Fla. Dep’t of Corr., 796 F. App’x 635, 638 (11th Cir. 2019) (per
curiam) (explaining that the petitioner “has articulated no cognizable claim for federal habeas
corpus relief because the federal courts are limited to correcting errors of federal law, and [the
petitioner] never brought a federal claim”). On the other hand, if he were citing Florida law as a
roundabout way to advance a claim under Miller v. Alabama, 567 U.S. 460 (2012), his Petition
would be nothing more than what it already is: a “second or successive” challenge to the
constitutionality of his original sentence. Miller, after all, held that a sentence of “mandatory life
without parole for those under the age of 18 at the time of their crimes violates the Eighth
Amendment’s prohibition on ‘cruel and unusual punishments.’” Id. at 465. And, of course, that
case would be of no help to Mr. Cross anyway because he admits that he was sentenced to life with
the possibility of parole. See Petition at 9.
7 At least one out-of-circuit court has come to the opposite conclusion, interpreting § 2244(b) as
permitting a stay pending preauthorization so that the petitioner’s claim would not be barred by
the one-year statute of limitations set out in § 2244(d). See Young v. Timmerman-Cooper, 2009
WL 3233717, at *1 (S.D. Ohio Oct. 2, 2009) (“While a district court lacks jurisdiction to consider
a second or successive petition without approval by the circuit court, it would not seem to offend
that ruling to allow the petition to remain on file for whatever importance that might have under
the statute of limitations.” (internal citation omitted)). But, because the relevant statutory provision
requires a successive petitioner to obtain preauthorization from the circuit court before the petition
“is filed in the district court,” § 2244(b)(3)(A) (emphasis added), this Court agrees with those
courts in this Circuit that have refused to stay their cases in similar circumstances.
For similar reasons, the Court also lacks authority to issue a certificate of appealability. See
Williams vy. Chatman, 510 F.3d 1290, 1295 (11th Cir. 2007) (“Without [successive] authorization,
the district court lacked subject matter jurisdiction to consider the successive petition, and
therefore could not issue a COA with respect to any of these claims.”).
The Clerk of Court shall CLOSE this case. All pending motions are DENIED as moot.
Any demands for an evidentiary hearing are DENIED, and all pending deadlines and hearings are
TERMINATED.
DONE AND ORDERED in Fort Lauderdale, Florida, this 21st day of December 2020.

ROY K. ALTMAN
UNITED STATES DISTRICT JUDGE

cc: Craig Cross
083510
Apalachee Correctional Institution East
Inmate Mail/Parcels
35 Apalachee Drive
Sneads, FL 32460
PRO SE
Noticing 2254 SAG Broward and North
Email: CrimAppWPB @ MyFloridaLegal.com

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10118528. Public record. Not legal advice.