Petition for Writ of Certiorari — Michael Swain, Petitioner v. Florida Commission on Offender Review
Supreme Court briefNov 4, 2019
Ask Donna
What actually matters in this document.
Text
•»
r
ft
Legal Mail
Received
JAN 1 7 2020
Dado CJ.
IN THE
SUPREME COURT of the UNITED STATES
OCTOBER TERM, 2019
lAr$-
MICHAEL SWAIN,
Petitioner,
v.
STATE OF FLORIDA,
Respondent.
FILED
NOV 0 4 2019
ON PETITION FOR WRIT OF CERTIORARI TO TisS^E^ftif^RK
UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
CORRECTED
PETITION FOR WRIT OF CERTIOP apj
COUNSEL FOR PETITIONER
MICHAEL SWAIN
PETITIONER, PRO SE
MICHAEL SWAIN
DC#0522803 F1222L
19000 S.W. 377th STREET
FLORIDA CITY, FL 33034
RECEIVED
JAN 2 7
QUESTION PRESF.NTFn
To bring this case before the Supreme Court for a decision on the merits
following federal question is presented for review:
DID THE JUDGES OF THE UNITED STATFC
eleventh circuit court of appeal
™THEY AFFIRMED THE DISTRICT COURTS
denial of habeas corpus relief to
PETITIONER WITHOUT REVISITING JONAS V
WAINWRIGHT, 779 F.2D 1576 (11™ CIR. 19861 FOR
THE PURPOSE OF RESOLVING A CIRCUIT COURT
SLICT BETWEEN JONAS AND THE UNITED
« circuit court of ap™
DECISION IN JOOST V.
uS
PAROT F
COMMISSION, 698 F.2D 418 (10™ CIR 1983) ON AN
S
OF federal law that a
yi^ATION of PAROLE BOARD’S OWN
[FFOULATIONS, BARRING CONSIDERATION AND
RELIANCE ON CRIMINAL OFFENSES FOR WHICH
PROSPECTIVE PAROLEE HAD BEEN ACOUfTTED
VIOLATES PETITIONER’S CONSTITUTIONAL DUE
PROCESS PROTECTIONS AGAINST ARBITRARY
ACTION BY GOVERNMENT AGENCY?
, the
TABLE OF CONTENTS
PAGEfSl:
Opinions Below................
....1-2
Jurisdiction of Court......................
...2
Constitutional and Statutory Provisions Involved
Statement of the Case...... .........................
Reasons for Granting the Writ.....................
Conclusion..................
3
.3-14
14-24
....25
INDEX TO APPENDICES
APPENDIX A
CwZt°f f
AUnited Stat6S C°Urt °f Appeals for the Eleventh
and PetiC&r REi5kfBLdenyi”g Petiti°” **
APPENDIX B
Opinion of the United States Court of Appeals for the Eleventh
Circuit affirming District Court’s denial of Petition for Writ of
Habeas Corpus entered June 17, 2019.
APPENDIX C
Order of the United States District Court, Southern District of Florida
denying Respondent’s Request to Reconsider Certificate of
Appealability on October 16, 2018.
m
APPENDIX D
Order of the United States District Court, Southern District of Florida
enying Petition for Writ of Habeas Corpus and granting a limited
Certificate of Appealability entered on April 18, 2018.
APPENDIX E
Supplemental Report of Magistrate Judge for the United States District
Court, Southern District of Florida entered on February 20, 2018.
APPENDIX F
APPENDIX G
f^Rceheari^ or Shearing En Banc dated July 5, 2019 and filed
With United States Court of Appeals for the Eleventh Circuit.
APPENDIX H
wrfif T°rf
(Petitioner) dated November 21, 2018, and filed with
With Umted States Court of Appeals for the Eleventh Circuit.
APPENDIX I
f°ruWrit °f HabCaS C0IPUS With Exhibits dated
District of FtaridT* fl Cd WUh Umt6d Stat6S °iStriCt C°Urt’ Southem
APPENDIX J
Amendment XIV, United States Constituti on.
APPENDIX K
Section 947.165 (1), Florida Statutes (2018).
APPENDIX L
Rule 23-21.010(2)(d), Florida Administrative Code.
IV
APPENDIX M
28 Code of Federal Regulation 2.19(c).
V
TABLE OF AUTHORTTTFS
CASES:
PAGEfSLBrown v. United States. 139 S.Ct. 14 (2018)
20
Damaino
78S
v ia gv ,~~nma Par°le & Prohation Commission
785 F.2d 929 (11th Cir. 1986)7.
Goldlawr v. Heiman. 369 U.S. 463 (1962)....
Greenholtz. y. Nebraska Penal Inmates 442 U.S.
16
.24
1 (1970)...
Hardy v. Greadinnpton, 405 So.2d 768 (Fla. 5,h DCA 1981)
15-17
19
Hurtado v. California. 110 U.S. 576 (1884)
15
Hylorv. United States 896 F.3d 1219 (11th Cir. 2018).
Jonas v. Wainwright, 779 F.2d 1576 (11th Cir. 1986).............
Joost v. U S Parole Commission, 698 F.2d 418 (10th Cir. 1983)
Kent v. United States, 383 U.S. 541 (1966)..........
12
10,12,19,22
7,10,19,22,23
17
McKahn
-}qq c . v.
, Elorida Parole & Probation Commissi’ on.
399 So.2d 476 (Fla. 1 DCA 1981)..........
19
Meachum v. Fann 427 U.S. 215 (1976)
18
Meda v. Department of Corrections
732 So.2d 1029 (Fla. 1998).............
...16
vi
CASES:
PAGELSL
Perry v. Sinderman, 408 U.S. 593 (1972)..............
18
Shaw v. Murphy, 532 U.S. 223 (2001),.......................
Swain v. Florida Commission on Offender Review
No. 18-12156-H, 2019 U.S. App. LEXIS 18175
(11th Cir. 2019)............................................
Swain v. Florida Commission on Offender Review
2018 U.S. Dist. LEXIS 27733 (S.D. Fla. 2018)......’...........
Thompson v. Keovhane. 516 U.S. 99 (1995)
United States v Deshazior, 882 F.3d 1352 (11th Cir. 2018)
Williams
v Florida Parole & Probation Commission
„
625 So.2d 926 (Fla. 1st DCA 1993)...................
’
Wixom v. United StatP« 585 F. 2d 920 (8th Cir. 1978)..
Wolff V. McDonnell 418 U.S. 539 (1974)
Article VI, Cl. 2, U.S. Const.........................................
Amendment XIV, U.S. Const..........................
Title 28 U.S.C. § 1254(1)............................
Section 947.165(1), Fla. Stat....................................
Section 947.18, Fla. Stat.................................
Rule 23-21.010(2)(d), FAC....................................
Rule 23-21.0161(1), FAC.........................
Vll
15
....1
2
20
12
18-20
23-24
15
18
7,13,15,21
2
3
17
7,9,11,20,22
.21
IN THE
SUPREME COURT OF THE UNITED STATES
petition for writ OF CERTIORARI
The Petitioner, MICHAEL SWAIN,
respectfully petitions the Supreme
Court for a Writ of Certiorari to review the judgment of the United States Court of
Appeal for the Eleventh Circuit which conflict with
Court of Appeals for the Tenth Circuit
a decision of the United States
on the same important question of federal
constitutional law.
PARTIES
Michael Swain was the Appellant in
the United States Court of Appeal for
the Eleventh Circuit. The Florida Commission
on Offender Review (formerly
named the Florida Parole Commission)
was the Appellee in the United States
Court of Appeals for the Eleventh Circuit.
OPINIONS RET ow
The decision of the United Stat
es Court of Appeals for the Eleventh Circuit
denying Petitioner’s request for rehearing is unreported and appear, in the
Appendices as Appendix A. The opinion of the Eleventh Circuit Court of Appeals
affinuing the final judgtnent of the United States District Court, Southern District
Of Florida, denying the Section 2241 Application for Writ of Habeas Corpus
on
June 19, 2019 is reported at 2019 U.S. App. Lexis 18175
and appears in the
Appendices as Appendix B.
1
The opinion of the United States District Court, Southern District of Florida
denying Section 2241 Application for Writ of Habeas Corpus and granting a
limited Certificate of Appealability on April 18, 2018 is reported at 2018 U.S. Dist.
LEXIS 66089 and appears in the Appendices as Appendix D. The opinion of the
United States Magistrate Judge recommending that the Section 2241
application be
denied is reported at 2018 U.S. Dist. Lexis 27733 and appears in the Appendices as
Appendix E.
JURISDICTION OF COURT
The final judgment of the United States Court of Appeals for the Eleventh
Circuit denying the Petition for Reheari ng was entered on August 15, 2019. (App.
A). The Supreme Court, pursuant to Title 28 U.S.C.
§ 1254(1), has jurisdiction to
grant petitions for writs of certiorari to review decisions entered by a United States
Court of Appeals.
2
CONSTITUTION. STATUTE. AND ADMTNISTP ATiyj?
RULES INVOLVF.n
The federal question presented for review involves the due process of law
guarantee of the Fourteenth Amendment to the United States Constituti
on which
appears in the Appendices in full text. (App. J. ). The question presented for
review also involves Section 947.165(1) of the Florida Statutes which is set out in
full text and appears in the Appendices as Appendix K.
The important question of federal law that has divided the United States
Circuit Courts of Appeals in this case also involves standard federal and
parole guideline rules prohibiting consideration
parole - eligible inmate was acquitted.
state
or use of conduct for which the
These regulations appears in the
Appendices as Appendix L and Appendix M, respectfully.
STATEMENT OF THE TASF
On January 13, 1976, during a jury trial conducted in reference to Criminal
Case Number F75-9247 in the Circuit Court of the Eleventh Judicial Circuit
, Dade
County, State of Florida, a jury acquitted 19 years-old Petitioner of the offenses of
aggravated assault and involuntary sexual battery. (App. I, pg. 3a).
Thereafter, the State of Florida came against Petitioner in a separate criminal
prosecution when it filed an Information on February 2, 1976 in the same Circuit
Court charging Petitioner under Case Number F76-976 with the felony
3
offenses of
breaking and entering a dwelling, sexual battery, and robbery. The State alleged
that these crimes were committed during a single criminal episode against
two
tenants on October 23, 1974.
At a subsequent jury trial conducted a month after charges were filed, the
Petitioner was convicted by a jury as charged.
This resulted in Petitioner’s first
felony convictions. On April 14, 1976, the trial court sentenced Petitioner to
imprisonment for life with eligibility for parole.
On December 13, 1979, the Respondent set Petitioner’s
presumptive parole
release date (PPRD) for June 12, 2001. By September 1997, Petitioner’s PPRD
came to rest with Respondent at March 6, 1999. (App. I, pg. 3a)
Pursuant to Florida’ s parole laws and objective parole guidelines
Respondent’s investigator (formerly
rules,
named parole examiner) interviewed
Petitioner on December 17, 1998 to determine whether to convert the PPRD into
an effective parole release date. After
a panel of two (2) commissioners met on
February 3, 1999 and voted to refer Petitioner’s case to a full
commission panel
(three commissioners) for extraordinary review, the Commissioners received for
their consideration a no- release letter from the Dade County State Attorney Office
(DCSAO). The no-release letter, with police reports attached thereto,
elaborated
on the circumstances of criminal offenses i
in unrelated cases for which Petitioner
4
were acquitted by a jury following a trial and which
were nolle prossed by the
DCSAO. (App. I, pg. 3b).
After considering the no- release letter and other information inside Petitioner’s
inmate file as required by parole guidelines rules,
health
impressions
from
mental
health
Respondent adopted mental
officials
Florida Department of Corrections and concluded
employed
with
the
on March 3, 1999 that Petitioner
has a “ continuing persistent pattern of criminal conduct,” “
has a propensity for
criminal conduct representative of a repeat offender,”
his parole risk was
extremely poor, and is in need for mental disordered treatment.
The
Respondent voted to deny parole,
suspended the PPRD indefinitely, and set a
subsequent extraordinary review for 2003
(APP-1, pg. 3c).
During each of the subsequent extraordinary review proceedings conducted in
2003, 2008, and 2013, the Petitioner
Respondent recommended that the
placed Petitioner on parole based
presented a release plan. Investigators for
Commission lift the PPRD-suspension and
on his exemplary program achievements,
satisfactory institutional conduct record,
to others. At Petitioner’s
and because he posed little, if not any risk
most recent extraordinary review hearing conducted by
Respondent on September 25, 2013, a victim’s advocate placed in evidence for
consideration
a
letter
from
a
victim
i
m
Case
Number
F76-976.
The victim’ s submission informed Respondent
that she was told by law
5
enforcement officers of Petitioner’s alleged involvement to unrelated crimes for
which he was acquitted and which the DCSAO
nolle pressed. (App. I, pg. 3C).
The Respondent subsequently issued a written report of its action.
Respondent continued to be unable
The
to make a finding that there is reasonable
probability that Petitioner would live and conduct himself
abiding citizen and that his release would
as a respectable and law-
not be compatible with his own welfare
and the welfare of society as required by statute. Respondent noted that a review
of the entire Department of Corrections records revealed
programming to assist with successful re
insufficient completion of
-entry since the last review. Respondent
also iincorporated the prior negative findings arrived
at in 1999, noting that the
serious nature of the offense was still of concerns to Commissioners.
Respondent
established Petitioner’s next interview date in seven years, noting that it
was not
reasonable to expect that Petitioner would be granted parole
within the following
years.
After the 2013 parole review process concluded, Petitioner
unsuccessfully
challenged Respondent’s administrative action i
in the State of Florida’s judiciary
via Petition for Writ of Mandamus which
was denied on the merits. Following
exhaustion of his state court remedies, Petitioner filed
a Section 2241 Application
for Writ of Habeas Corpus with the United States District Court,
Southern District
of Florida on August 4, 2016. (App. I).
6
Among the constitutional grounds raised in the habeas
corpus petition, the
Petitioner challenged his continued detention in the custody of the State of Florida
on the basis that Respondent violated his rights
under the Fifth and Fourteenth Amendments by
to due process guaranteed him
engaging in abitrary actions when
Respondent failed to comply with i
its own regulation (Rule 23-21.010(2)(d))
barring consideration and reliance on
criminal charges of which Petitioner, had
been acquitted and to continually use such
constitutionally impermissible factors to
deny Petitioner parole repeatedly. (App. I, pg. 3.3D)
On October 26, 2016,
pursuant to a show cause order, the Respondent filed a
response contending that it had not deprived Petitioner
of a federally protected
right because there iis nothing improper and arbitrary in
submissions from either the victim or
accepting written
the DGSAO describing a history of crimes
allegedly committed by Petitioner which he
was either acquitted or were dismissed
against him.
Petitioner filed a reply citing to the Tenth Circuit Court of Appeals
Joost v. United States Parole Commission
’ decision in
698 F.2d 418 (10th Cir. 1983) and
insisted to the District Court that criminal charges for which
a prospective parolee
has been acquitted may not be
considered by Respondent to arbitrarily deny him
parole without violating due process.
7
In his report to the District Judge
recommending that the habeas corpus application be denied,
the Magistrate Judge
made the following findings:
“[T]he petitioner’s reliance upon Joost v.
U.S. Parole Commission 698 F.2d 418
(10 Cir. 1983), is misplaced,
The
petitioner relies on Joost for the proposition
that, with regard to federal parole decisions,
criminal charges of which a prospective
parolee has been acquitted may not be
considered to deny parole. However, review
of that decision shows that the holding is
based on a violation of the Parole
Commission’s own regulations and not a
constitutional violation. Joost at 419
”
(App. F).
Petitioner filed objections to the Magistrate Judge’s factual findings
attempt to distinguish the Joost case from his case.
Upon finding that discovery
matters raised by Petitioner needed to be addressed arid ruled
Judge rejected the Magistrate Judge’s
and
upon, the District
report and recommendation and remanded
the cause to the Magistrate Judge for judicial
action on the discovery matters and
for a supplemental report thereafter.
In a Supplemental Report entered on February 20, 2018, the Magistrate Judge
found that Respondent’s 1999
negative decision denying parole and suspending
Petitioner’s release date were supported by substantial evidence other than the
letters from the State Attorney and victim,
and that the continued decision to deny
Petitioner parole was not arbitrary and capricious.
8
The Magistrate Judge also
readopted his reasoning as why the Joost decision is being misplaced by Petitio
which is that the holding in Joost “is based on
ner
a violation of the Parole
Commission’s own regulations.” (App. E, pg. 13). The Magistrate Judge added
that “[e]ven if the [Respondent] did rely to
there was no constitutional violation
some extent on the acquitted conduct,
as such reliance is not prohibited.” (App. E,
Pg. 14).
Petitioner filed written objections to the Supplemental Report of the Magistrate
Judge.
Noting that Respondent is required by Florida law to follow Florida
Administrative Codes. By final order entered on April 18,
made the following findings and legal conclusions
claim that Respondent violated his Fourteenth
arbitrary governmental action when.
2018, the District Judge
as to Petitioner’s habeas corpus
due-process protection against
contrary to its own administrative regulation,
the Respondent considered and relied
upon criminal charges for which Petitioner
was acquitted to repeatedly deny Petitioner parole:
[I]nstead, as Petitioner correctly notes the
Commission is required to follow the
Florida Administrative Code. (See Obj’s.
16). In determining aggravating parole
factors, Florida’s regulations require the
Commission not consider “[c]harges for
which a person was acquitted after trial ”
Fla Admin. Code 23-21.010(2)(d)(alteration
added). Thus, if the Commission relied on
the charges for which Petitioner was
acquitted - - charges described in both the
1999 protest letter and the 2013 victim’s
9
letter - then the Commission violated its
own regulations.
Under Joost, a violation of the regulations
regulating Commission is a violation of due
process. See Joost, 698 F.2d at 419 (“Such
reliance violates the Commission’s own
regulations. . . Unless the Commission can
rebut the allegation that it relied upon the
acquitted charges, petitioner is entitled to
relief.” (alteration added)). The Eleventh
Circuit has stated in dicta, however ‘Ttlhe
claim that the Commission did not abide by
its own rules and regulations does not allege
a constitutional violation. “Jonas v
Wainwright, 779 F.2d 1576 (11"1 Cir. 1986)
(alteration added). In this Circuit, only by
s owing the Commission knowingly relied
on false information can Petitioner raise a
due process claim. See Monroe, 932 F.2d at
1442; see also Jones, 279 F.3d at 946.
Petitioner’s objection to the Report’s denial
of his due process claim thus fails,
.”
(App. D, pg. 9).
After denying all of the habeas
corpus claims on their merit, the District Jud
sua sponte granted a certificate of appealability reasoning that Petitioner
ge
identified
a conflict between the Joost holding and the Eleventh Circuit’s dicta in the Joans
decision:
By citing Joost’s holding regarding the
consideration of acquitted charges in
violation of a parole
. .
commission’s
regulations, Petitioner has identified a
conflict with Eleventh Circuit dicta in Jonas,
fhus reasonable jurists can disagree
regarding whether reliance on charges for
10
which Petitioner was acquitted
in
violation of
regulations governing the Commission - constitutes a violation of Petitioner’s due
process rights because the Eleventh Circuit
has not directly addressed this issue a
certificate of appealability is warranted
(App.pg. 12).
On August 14, 2018, the Petitioner filed with the District Co
urt a Renewed
Application for Certificate
of Appealability seeking an
expansion of the
appealability grant. Respondent answered asking the District C
ourt to reconsider
.ts grant of a certificate of appealability raising untimely issues regarding the
applicability of administrative rule
District Judge denied Petitioner’s
23-21.010(2)(d).
On August 16, 2018, the
renewed request for expansion of the certificate
Of appealability regarding whether Responder violated FI
orida laws by considering
criminal charges for which Petitioner
was acquitted and, if so, whether that
violation infringed Petition er’s due process rights. (App/ C, pg. 7).
Petitioner took an appeal from the District Court’s final orders to the United
States Eleventh Circuit Court of Appeals.
On December 21, 2018, Petitioner filed
his principal brief on appeal arguing that he is entitled to
a reversal because the
District Court erroneously relied on
the Eleventh Circuit Court of Appeal’s dictum
in Jonas which, conflicts with the Tenth Circuit Court of Appeals decision
holding that a violation of the Parole Board’s
11
in Joost
regulations, prohibiting consideration
of charges for which a person
was acquitted, is a violation of due process. (App.
H, pgs. 19-27).
Respondent filed a brief on appeal arguing that it had
regulations when denying Petitioner parole
complied with applicable
and that his argument concerning
violation of administrative rules was foreclosed by the Jonas decision.
On June 17, 2009, a panel for the Eleventh Circuit Court of Appeal affirmed
the District Court’s denial of Petitioner’s application for a writ of habeas
corpus
and answered the certificate of appealability issue as follows:
Swain concedes that his argument that the
Commission violated its regulation in
denying him parole is foreclosed by binding
precedent. In Jonas, we held that the failure
of the Commission to “abide by its own
rules and regulations [did] not allege a
constitutional violation.” 779 F 2d at 1S78
We are bound to follow Jonas “unless and
until [it is] overruled or undermined to the
point of abrogation by the Supreme Court or
by this Court sitting en banc.” Hylor v
United States, 896 F.3d 1219, 1224 (11*
Cir. 2018)(quoting United ’ States v
Deshazior, 882 F.3d 1352, 1355 (11th Cir
2018), cert, denied, 139 S.Ct. 1375 (2019).
Even if we were not bound by Jonas, we
would still affirm the denial of Swan’s
petition because the Commission did not
violate its regulation. The record establishes
that the Commission denied Swain parole
based on the “particularly heinous and
cruel nature of the crimes for which he had
been convicted, his use of a knife during
12
those
. . crimes, the trauma inflicted on his
victims, the unreasonable risk” he posed to
others, and his lack of participation in
programs prerequisite to his release. Swain
submitted no evidence that the Commission
denied him parole based on criminal charges
of which he had been acquitted.
We AFFIRD the denial of Swain’s petition
or a writ of habeas corpus. (App. B, pg. 6).
Petitioner sought rehearing and rehearing
en banc of the Eleventh Circuit’s
decision in this case. (App. G). On August 15, 2019, rehearing and rehearing en
banc was denied by the Court of Appeals. (App. A).
Petitioner remains in the custody of the State of Florida Department of
Corrections in violation of due process of law.
MANNER IN WHICH THE FEDERAT O UESTION
WAS RAISED AND DECIDED BFT OW
The question of whether Petitioner’ s Fourteenth Amendment due process right
against arbitrary action by State
government agency was violated and whether
conflicting decisions exist between federal
courts of appeals were properly
presented to the Eleventh Circuit Court of Appeals.
however, erroneously rejected Petitioner
The Eleventh Circuit,
s constitutional violation argument on the
merits and concluded that that court was bound by it’s own precedent that failure
of a Parole Board to abide by it own rules and regulations does
not allege a
constitutional violation, but never determined the decisional conflict i
issue existing
13
between it and the Tenth Circuit Court of Appeals,
Thus, the claims were
presented and reviewed below, and are appropriate for this Court ’s consideration.
REASONS FOR GRANTING THE WRIT
JUDGES OF THE UNITED STATES ELEVENTH CIRCUIT
COURT OF APPEALS ERR WHEN THEY AFFIRMED THE DISTRICT
COURT’S DENIAL OF HABEAS CORPUS RELIEF TO PETITIONER
WITHOUT REVISITING JONAS V. WAINWRIGHT 779 F 2D 1576
S/S
OF SOLVING A CIRCmfcSicT
BETWEEN JONAS AND THE UNITED STATES TENTH riRriTTT
COURT OF APPEALS’ DECISION IN JOOST V u “ PAROTE
COMMISSION, 698 F.2D 418 (10™ CIR. 1983) ON AN IMPORTANT
QUESTION OF FEDERAL LAW THAT A VIOLATION OF ^AROEF
RFM^xri^nv RATIONS, BARRING CONSIDERATION AND
RELIANCE ON CRIMINAL OFFENSE FOR WHICH PROSPECTIVE
CONSTITEUTXlBEEnN™ACQUITTED> VI™ PETTTCONER’S
CONSTITUTIONAL due process PROTECTION AGAINST
ARBITRARY ACTION BY GOVERNMENT AGENCY?
AGAINST
The Supreme Court should exercise its powers and issue a writ of certiorari
in this case because the existence of conflicting decisions have divided federal
courts of Appeals on an important question of due process of law
parole proceedings which the Eleventh Circuit Court of Appeals
during the appeal taken below, leaving unanswered the
in administrative
never addressed
underlying question of
whether Petitioner’s due process right against arbitrary governmental action was
violated by the Florida Parole Commission’s consideration of a
impermissible reason to repeatedly deny parole.
14
constitutionally
The Due Process Clause of the Fourteenth Amendment to the United States
Constitution guarantees that no state shall “
deprive any person of life, liberty, or
property, without due process of law.” U.S. Const, amend. XIV.
Long ago, the Court determined that the fundamental
core of due process
under the Fourteenth Amendment is protection against arbitrary action. Hurtoda v.
California, 110 U.S. 516, 527 (1884) (this principle stretches back to words taken
from the Magna Charta which
was intended to secure individuals from the
arbitrary exercise of powers of government). Throughout this Court
jurisprudence since the Hurtoda decision, the
’s due process
Court has repeatedly upheld this
principle and has over emphasized that the due process clause protects individuals
against arbitrary governmental action. Wolff .
(1974) (the touchstone of due
V McDonnell. 418 U.S. 539, 558
process is protection against arbitrary action of
government).
Justice White, writing the opinion for the Court in Wolff, concluded that
“[tjhere is no iron curtain drawn between the Constitution and the prisons of this
country.” Id. 418 U.S. at 555-5565. After the Wolff decision, this Court held that
being incarcerated does not divest prisoners of all
constitutional protections. Shaw
v^Muiphy, 532 U.S. 223, 228-29 (2001).
This Court’s decision in Greenholtz and precedents of the United States
Eleventh Circuit Court of Appeals
appear on their face to be a legal barrier to
15
Petitioner’s habeas corpus claim for relief that his due
process right to protection
from the arbitrary denial of a discretionary benefit was violated. Greenholtz v
Nebraska Penal Inmates 442 U.S. 1 (197°); Damaino v. Florida Parole
Probation Commission 785 F.2d 929, 931-932 (11th Cir. 1986); See also Meola v.
Department of Corrections 732 So.2d 1029,
Court determined that “[i]n Florida,
1034 (Fla. 1998). (Florida Supreme
parole - eligible inmates do not have a
legitimate expectation of liberty or right to expect release
on a certain date even
after they have been given a specific Presumptive Parole Releasee D
ate.”).
Petitioner is submitting to this Court
however, that its Greenholtz decision
and precedents of the Eleventh Circuit does
not obliterate a Florida prisoner’s
Fourteenth Amendment due process right to protection against arbitrary
action of
the parole commission’s decision to deny discretionary release.
In Greenhoftz, the Court held that there is
release, derived either from the Constitution
no liberty interest in parole
or from the mere existence of a
discretionary parole system, to which procedural due
The Court also made it clear in Greenholtz that
once a State enacts a statute which
gives a parole commission discretionary powers
meeting applicable standard and criteria, a
process protections attach,
to grant parole upon a prisoner
prisoner justifiably expect that parole
will be granted fairly and according to law whenever those
standards are met. Id.
442 U.S. at 19. As Justice Powell stated for the Court in Greenholtz which, unlike
16
the present case, involved state parole statutes
creating a liberty interest in parole
release:
exp:ctanC3;of release provided in
emphasize that this statute has unique stmcture andlanl ProteCt.0n- However’ we
In the State of Florida, parole release is
a discretionary grace of the State and
a determination by the commission to grant parole release
meeting several statutory conditions
rest on a prisoner
and criteria set forth in Section 947.18,
Florida Statute which provides in pertinent part:
efficient performance *of°duties Sis'ned1^6^’ ^ a„eward for ®ood condu« or
on
respectable
and
^ ^ ^ ^M
tnat, it the person
is place
herself as a with SI m ”8 P<f and that the persons relea*= will be
compatible"
be placed on" u2 Z^untifZ “
^ °f **«*• N° P™» shall
be suitable employedin s“fsull*
SS‘°n “ Satlsf!ed that h« or she will
become a public charge ”
sustaimng employment or that he or she will not
Petitioner submits to the Court that
discretion for parole release under Florida
century-old due process
the presence of a wide measure of
s parole system does not escape the
guarantee of protection against arbitrary government
action in release determinations. Kent
(a legislative grant of discretion
vOInited States, 383 U.S. 541, 553 (1966)
to government agency does not amount to a
license for arbitrary decisions). Under Greenholtz,
17
a State statute may not sanction
totally arbitrary parole-release decisions founded in part or in whole
on
impermissible reasons or trump over Constitutional Rights. See Williams v.
Florida Parole Commission, 625 So.2d 926, 932 (Fla. Is1 DCA 1993) (determined
that “[t]he Commission’s exercise of this delegated discretion cannot be arbitrary
or capricious, for it must conform to the requirements of applicable...rules setting
objective guidelines.”).
The Supremacy Clause of the United States Constitution provides:
This Constitution, and the laws of the United
States which shall be made in pursuance thereof
and all Treaties made, or which shall be made’
under the Authority of the United States, shall be
the Supreme law of the land; and the Judges in
every state shall be bound thereby, and thing in the
Constitution or Laws of any State to the contrary
notwithstanding,” Article VI, Clause 2, U.S. Const.
Under the Supremacy Clause, a state statute may not vitiate the due process
right, guarantee under the Fourteenth
amendments to be free from arbitrary
governmental action. See Meachum — Fano, 427 U.S. 215, 230 (1976).
Furthermore, the Court emphasized in Perry v. Sindermann that
person has no “right to a valuable government benefit and
even though a
even though the
government may deny him the benefit for any number of reasons, there are some
reasons upon which the government may not rely. “Id. 408 U.S.
593, 597(1972).
The question framed for review by this Court in the instant case arose out of
an important federal law question wrongly decided by the United States Eleventh
18
Circuit Court of Appeals’ reliance on its decision in Jonas v. Wainwright 779 p
2d 1576 (11th Cir. 1986) which Petitioner contends
squarely conflicts with the
decision of the United States Tenth Circuit Court of Appeals
Commission , 698 F. 2d 418 (10th Cir.
in Joost v. U.S. Parole
1983). In Jonas, the Eleventh circuit held
that a “ [cjlaim that the Commission did not abide by its
own rules and regulations
does not allege a constitutional violation.” Id. 779 F. 2d
Jonas that a constitutional violation does not
at 1578. By finding in
occur when the commission fails to
abide by its own rules and regulations, the Eleventh Circuit decided an important
federal question in a way that conflicted with the Tenth Circuit decision
in Joost. In
Joost. the prisoner claimed that the United States Parole Commission considered
murder charges for which the prisoner
was acquitted to extend his incarceration
period beyond the standard guidelines in violation of the
regulation. See 28 C.F.R. §2.19(c). Under the Joost
commission’s own
case, a violation of regulation
2.19(c) was a violation of due process. Id. 698 F. 2d at 419.
In the State of Florida, the Parole Commission is
capriciously or arbitrarily, the commission
not at liberty to ignore,
’s own rules. McKahn v. Florida Parole
and Probation Commission 399 So.2d 476,
478 (Fla. lsst DCA 1981); Hardv v.
Gieadington, 405 So.2d 768 (Fla. 5* DCA 1981) (“[t]the Parole
commission is
required, as any other body, to comply with constitutional requirements; it cannot
y parole upon illegal grounds or upon improper considerations,”); Williams,
19
625 So.2d at 937 (parole release discretion cannot be exercised arbitrarily or
capriciously).
Florida Administrative code 23-21.010(2) (d) specifically prohibits
the
Parole Commission from taken into consideration criminal charges for which a
prisoner was acquitted after trial when making decisions. ( App. L).
This
regulation makes criminal charges for which a parole-eligible prisoner
was
acquitted an impermissible consideration. In other
terms, Rule 23-21.01(2)(d)
places substantive limitations on the Parole Commission’s powers to deny
discretionary parole for reasons not within the scope of its authority.
One of this Court’s primary functions is to resolve an “important matter”
on
which courts of appeals are “in conflict.” Thompson v. Kenhnne 516 U.S. 99, 106
(1995). Under Supreme Court Rule 10 (a), entitled “Considerations Governing
Review on Certiorari,” the court has power to consider granting certiorari review if
a court of appeals “has entered a decision in conflict with another United States
Court of Appeals on the same important matter.” Brown v. United States 139 §
Ct. 14(2018).
In the instant case, the Petitioner has never claimed a due process right to
parole release in his federal habeas corpus application filed in the District Court or
in the state courts. (App. I).
20
Rather, the Petitioner claimed below that the Florida Parole Commission’s
continued detention of him in the custody of the Florida Department of Corrections
violates his Fourteenth Amendment due p rocess right to protection from arbitrary
denial of parole release beginning in 1999 after initially considering and relying
upon information contained in protestation letters from the prosecuting attorney
office that he had engaged in escalating an continuing persistent pattern of criminal
conduct consisting of, among others, separate sexual assault charges unrelated to
his conviction and which he was tried and acquitted following a jury trial.
In Support of these claims, Petitioner contended in the lower federal courts
that, by incorporating the bases for its 1999 order denying parole release into its
2015 order and being required by its own rules during every subsequent
extraordinary review to consider all information in his entire inmate file pursuant
to Rule 23-21.016 (1), FAC, the Commission has
continued to improperly rely
upon dismissed or acquitted criminal charges as reasons for evaluating any risk he
may pose to the public if released and has arbitrarily exercised its delegated
discretion under §947.18, Fla. Stat., to deny him parole release and reaffirm for
two decades its suspension of the March 6, 1999 presumptive parole release date
established by the commission using objective parole guidelines.
Although the United States Magistrate Judge’s Supplemental Report
distinguished the Joostc case, stating that its holding was “based on a violation of
21
the Parole Commission’s own regulations,” (App. E), the District Judge found in
her denial of the application for a writ of habeas corpus that, if the Florida Parole
Commission relied on criminal charges for which Petitioner
was acquitted—
charges described in both the states attorney office’s 1999 no-release letters and
the victim’s 2013 letter, then the Commission violated its
own regulations pursuant
to Rule 23-21.010(2)(d) and, under the Jpostt case, would constitute a violation of
due process. (App. D, pg. 9).
In Jpost, the Tenth Circuit Court of Appeals held that the Parole
Commission could not extend a prisoner’s incarceration beyond the standard
parole guidelines on the basis of murder charges which Joost had been acquitted
without violating its own regulation and due process. Id. 698 F.2d at 419.
In the present case, the District Judge refused, however, to grant Petitioner’s
habeas corpus relief because Petitioner, in the opinion of the judge, had failed to
present authority stating that reliance on acquitted criminal charges ‘is against the
regulations governing the Commission or violates a
constitutional right [.]” (App.
D> Pgs, 9-10). The District Judge further found that, by citing to the Joost decision,
the Petitioner had identified a circuit court conflict with the Eleventh Circuit Court
conflict with the Eleventh Circuit Court of Appeal’s decision in Jonas v.
Wainwright and granted a certificate of Appealability on the issue of “whether
reliance on charges for which Petitioner
was acquitted - in violation of regulations
22
governing the Commission - constitutes a violation of Petitioner’s due process
rights.” (App. D, pg. 12).
On appeal taken by Petitioner, the Eleventh Circuit evaded and
never
addressed the circuit conflict which seemingly exist between its Jonas decision and
the Tenth Circuit’ s Joost decision. (App. B). Rather, the Eleventh
determined in the present case that it
[u]nless, and until [they are] overruled
Circuit
was bound to follow its own precedents
or undermined to the point of abrogation
by the Supreme Court []” and that the failure of the Parole Commission to “abide
by its own rules and regulations does
not allege a constitutional [due process of
law] violation,” (App. B, pg.2).
The circuit conflict issue in the present case, however, is extremely
important and its manifest importance is demonstrated by the fact that
consideration by the Commission of criminal charges for which
a person was
acquitted following a jury trial is fundamentally at odds with firmly - established
judicial maxims and concerns of constitutional
proportions such as a person is
innocent until proven guilty beyond a reasonable doubt and vitiates a jury’s role in
a trial resulting in a verdict of not guilty. This i
is because punishment has long
been reserved for those persons convicted of criminal charges tested i
m an
adjudicative judicial proceeding where due process
is fully applicable. In Wixom
23
— United State, the United States Eighth Circuit
Court of Appeals, stated in
dictum:
“[i]t would be inappropriate for the Parole
commission to consider any of the objected
to information (relating to unadjudicated
conduct) in determining the length of time
that the defendant will be required to serve
under the guidelines established by the
United States Parole Commission.” Id- 585
F. 2d 920, 921 (8th Cir. 1978).
Petitioner submits that the decisional conflict existing bet
ween the Tenth and
Eleventh Circuits presented by this case is one that is not likely to g
o away without
guidance from this court and could
reappear in future cases involving
constitutional deficiencies in Florida’s existing parole release process.
For the foregoing reasons, the Court should
review the decision of the
United States Eleventh Circuit Court of Appeals in this case which i
is in conflict
with Joost and the uniform
course of decision previously made on the same
important federal law question. See Goldlawr
w Heiman, 369 U.S. 463, 465
(1962).
24
CONCLUSION
Based on the foregoing, Petitioner is requesting any four justices of the
to grant this Petition for Writ of Certiorari.
Dated:
O.
JL
Michael Swain, Ftsc.
DC#052803
Dade Correctional Institution
19000 S.W. 377th Street
Florida City, FI 33034
25
court
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.