Joint Appendix — Lynce v. Mathis

Supreme Court brief1997

Ask Donna

What actually matters in this document.

Text

|, Supreme Court, U.S.

FILE D

UUK 5 1995 |

CLERK

In THE

Supreme Court of the United. States

OcTOBER TERM, 1995

KENNETH LYNCE,

Petitioner

Vv.

HAMILTON MATHIS, SUPERINTENDENT, TOMOKA

CORRECTIONAL INSTITUTION, et al.

On Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

JOINT APPENDIX

JOEL T. REMLAND SUSAN A. MAHER

Assistant Federal Deputy General Counsel

Public Defender Department of Corrections

80 N. Hughey Avenue 2601 Blair Stone Road

Suite 417 Tallahassee, FL 32399

Orlando, FL 32801 (904) 488-2326

(407) 648-6338 Counsel for Respondents

Counsel for Petitioner

PETITION FOR WRIT OF CERTIORA‘RI FILED JANUARY 10, 1996

CERTIORARI GRANTED MAY 13, 1996

TABLE OF CONTENTS

Relevant Docket Entries

Petition for Writ of Habeas Corpus, filed 8/18/94

Petitioner’s Response to Magistrate Judge’s Order of

January 4, 1995, filed 1/20/95

Respondent’s Answer to Petition for Writ of Habeas

Corpus, filed 3/6/95

Report and Recommendations of United States Magis-

trate Judge, filed 3/14/95

Petitioner’s Objections to Report and Recommenda-

tions, filed 4/24/95 :

Order of the United States District Court for the

Middle District of Florida dismissing Petition, en-

tered 5/10/95

Order of the United States District Court for the

Middle District of Florida denying Petitioner’s Re-

quest for Certificate of Probable Cause, entered

6/16/95

Order of the United States Court of Appeals for the

Eleventh Circuit, denying Petitioner’s Request for

Certificate of Probable Cause, dated 10/16/95

Order of the Supreme Court of the United States grant-

ing certiorari and leave to proceed in forma pauperis,

RELEVANT DOCKET ENTRIES

DATE PROCEEDING

8/18/94 PETITION for writ of habeas corpus

1/20/96 RESPONSE by petitioner Kenneth Lynce to

Magistrate Judge’s oral order of 01-04-95

3/6/95 RESPONSE by respondent Harry K. Singletary

3/14/95

4/24/95

5/10/95

6/16/95

Jr. to petition for writ of habeas corpus and re-

sponse to show cause order entered February 21,

1995

REPORT AND RECOMMENDATIONS of Magis.

Judge David A. Baker. That the petition for

writ of habeas corpus be denied and the case be

dismissed with prejudice. Objections to R and R

due by 3/31/95. cte

OBJECTIONS by petitioner Kenneth Lynce to

report and recommendations

ENDORSED ORDER approving report and rec-

ommendations, denying petition for writ of

habeas corpus. Case dismissed with prejudice.

ORDER denying petitioner’s application for cer-

tificate of probable cause

[Filed Aug. 18, 1994]

FORM FOR USE IN APPLICATIONS

FOR HABEAS CORPUS UNDER U.S.C. § 2254

NAME: Kenneth Lynce, et. al.

PRISON NUMBER: 352641

NAME OF PLACE OF CONFINEMENT:

Tamoka Correctional Institution

ADDRESS OF PLACE OF CONFINEMENT:

3950 Tiger Bay Road

Daytona Beach, FL 32124

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

Case No. 94-891-CIV-ORL-18

KENNETH LYNCE,

= Petitioner,

SUPERINTENDENT HAMILTON MATHIS, ef. ai.,

_ Respondent,

THE ATTORNEY GENERAL OF THE STATE OF FLORIDA,

ROBERT BUTTERWORTH,

Additional Respondent.

co ok * *

PETITION

1. Name and location of court which entered the judg-

ment under attack: Ninth Judicial Circuit Court,

Orange County, Florida

“3 PF YP

10.

11.

Date of judgment of conviction: April 14, 1986

Length of sentence: 22 years

Sentencing judge: Judge Walter Komanski

Nature of offense or offenses for which you were

convicted: First Attempter Murder Burglary, Sale &

Delivery of Cocaine

What was your plea? (Check one)

(a) Not guilty ee

(b) Guilty ()

If you entered a guilty plea to one count or indict-

ment, and a not guilty plea to another count or

indictment, give details: N/A

Kind of trial (Check one)

(a) Jury( ) (b) Judge only (~)

Did you testify at the trial? Yes( ) No(#)

Did you appeal from the judgment of the conviction?

(Yes) No (#)

If you did appeal, answer the following:

(a) Name of Court No

(b) Result N/A

If you filed a second appeal or filed a petition for

certiorari in the Florida Supreme Court or the United

States Supreme Court, give details: No

State concisely every ground on which you claim you

are being held unlawfully. Summarize briefly the

facts supporting each ground.

If you fail to set forth all such grounds in this

petition, you may be barred from presenting

them at a later date.

For your information, the following is a list of the

most frequently raised grounds for relief in habeas

corpus proceedings. Each statement preceded by a

letter constitutes a separate ground for possible relief.

If you select one or more of these grounds for relief,

you must allege facts in support of the ground or

grounds which you choose. Do not check any of the

grounds below. The petition will be returned to you

if you merely check (a) through (j) or any one of

these grounds.

(a) Conviction obtained by a plea of guilty which

was unlawfully induced or not made voluntarily

with understanding of the nature of the charge

and the consequence of the plea.

(b) Conviction obtained by use of coerced con-

fession.

pursuant to an unconstitutional search and

seizure, (where the state has not provided a full

and fair hearing on the merits of the Fourth

Amendment claim).

(d) Conviction obtained by use of evidence obtained

pursuant to an unlawful arrest, (where the state

has not provided a full and fair hearing on the

merits of the Fourth Amendment claim).

(e) Conviction obtained by violation of the privilege

against self-incriminaton.

(f) Convection obtained by the unconstitutional fail-

ure of the prosecution to disclose to the defend-

ant evidence favorable to the defendant.

(g) Conviction obtained by the violation of the pro-

tection against double jeopardy.

(h) Conviction obtained by action of a grand or

petit jury which was unconstitutionally selected

and impaneled.

(i) Denial of effective assistance of counsel.

(j) Denial of right of appeal.

A. Ground one: Futility exemption to exhaustion

of requirement of state remedies.

Supporting FACTS (tell your story briefly with-

out citing cases or law):

See Memorandum of Law

Exhaustion of ground one in the state courts:

(1) Did you raise ground one in the appropriate

Florida District Court of Appeals on a direct

appeal of your conviction? Yes( ) No (#)

(2) After your conviction did you raise ground one

in the state circuit court that sentenced you by

filing a Florida Rule 3.850 Motion to Vacate,

Set Aside, or Correct Sentence?

Yes( )No( )

(a) If your answer is “yes”, then state:

i. Whether you received an evidentiary

hearing N/A

ii. The result N/A

iii. The date of the result N/A

(b) If your Rule 3.850 Motion was denied,

then did you file an appeal of that denial with

the appropriate Florida District Court of Ap-

peals? Yes( ) No(#)

i. If you failed to appeal the denial of

your Rule 3.850 motion, then explain

briefly why you did not N/A

(3) Have you raised ground one in any other peti-

tion, application, or motion filed in the state

courts of Florida? Yes( ) No( )

If your answer is yes, then give the details, in-

cluding the grounds raised, the court’s decision,

and the date of said decision for each such peti-

tion, application, or motion. N/A

B. Ground two: Petitioner is entitled to a Tempo-

rary Restraining Order and Preliminary Injunc-

tion.

Supporting FACTS (tell your story briefly with-

out citing cases or law):

See Memorandum of Law

Exhaustion of ground two in the state courts:

(1) Did you raise ground two in the appropriate

Florida District Court of Appeals on a direct

appeal of your conviction? Yes ( ) No (#)

(2) After your conviction did you raise ground two

in the state circuit court that sentenced you by

filing a Florida Rule 3.850 Motion to Vacate,

Set Aside, or Correct Sentence?

Yes( ) No(#)

(a) If your answer is “yes”, then state:

i. Whether wou received an evidentiary

hearing N/A

ii. The result N/A

iii. The date of the result N/A

(b) If your Rule 3.850 Motion was denied,

then did you file an appeal of that denial

with the appropriate Florida District Court

of Appeals? Yes( )} No(#)

i. If you failed to appeal the denial of

your Rule 3.850 motion, then explain

briefly why you did not N/A

(3) Have you raised ground two in any other peti-

tion, application, or motion filed in the state

courts of Florida? Yes( ) No (#)

If your answer is yes, then give the details, in-

cluding the grounds raised, the court’s decision, and

the date of said decision for each such petition, appli-

cation, or motion N/A

C. Ground three: Reinterpretation of provisional

creits laws is a violation of the ex post facto

law.

Supporting FACTS (tell your story briefly with-

out citing cases or law):

See Memorandum of Law.

Exhaustion of ground three in the state courts:

(1) Did you raise ground three in the appropriate

Florida District Court of Appeals on a direct

appeal of your conviction? Yes ( ) No (#)

(2) After your conviction did you raise ground three

in the state circuit court that sentenced you by

filing a Florida Rule 3.850 Motion to Vacate, Set

Aside, or Correct Sentence? Yes ( ) No (#)

(a) If your answer is “yes”, then state:

i. Whether you received an evidentiary

hearing N/A

ii. The result N/A

iii. The date of the result N/A

(b) If your Rule 3.850 Motion was denied,

then did you file an appeal of that denial

with the appropriate Florida District Court

of Appeals? Yes( ) No (”)

i. If you failed to appeal the denial of your

Rule 3.850 motion, then explain briefly

why you did not N/A

(3) Have you raised ground three in any other peti-

tion, application, or motion filed in the state

courts of Florida? Yes ( ) No (”)

If your answer is yes, then give the details, in-

cluding the grounds raised, the court’s decision,

and the date of said decision for each such peti-

tion, application, or motion N/A

D. Ground four: N/A

Supporting FACTS (tell your story briefly with-

out citing cases or law): N/A

Exhaustion of ground four in the state courts:

(1) Did you raise ground four in the appropriate

Florida District Court of Appeals on a direct

appeal of your conviction? Yes ( ) No (#)

(2) After your conviction did you raise ground four

in the state circuit court that sentenced you by

filing a Florida Rule 3.850 Motion to Vacate,

Set Aside, or Correct Sentence? Yes ( )

No (#)

(a) If your answer is “yes”, then state:

i. Whether you received an evidentiary

hearing.

12.

13.

ii. The result N/A

iii. The date of the result N/A

(b) If your Rule 3.850 Motion was denied,

then did you file an appeal of that denial

with the apropriate Florida District Court

of Appeals? Yes ( ) No (#)

i. If you failed to appeal the denial of

your Rule 3.850 motion, then explain

briefly why you did not N/A

(3) Have you raised ground four in any other peti-

tion, application, or motion filed in the state

courts of Florida? Yes( ) No (”)

If your answer is yes, then give the details,

including the grounds raised, the court’s deci-

sion, and the date of said decision for such peti- .

tion, application, or motion N/A

Other than a direct appeal and other than the

post conviction motions disclosed in your answer

to question 11 above regarding exhaustion of state

remedies, have you previously filed any petitions,

applications, or motions with respect to this judgment

and conviction in any court, state or federal?

Yes( ) No(#)

If your answer to 12 was “yes”, give the following

information:

(a) (1) Name of court N/A

(2) Nature of proceeding N/A

(3) Grounds raised N/A

(4) Did you receive an evidentiary hearing on

your petition, application or motion?

Yes( ) No (#)

(5) Result N/A

(6) Date of rese#lt N/A

14.

15.

(b) As to any second petition, application or motion

give the same information:

(1) Name of court N/A

(2) Nature of proceeding N/A

(3) Grounds raised N/A

(4) Did you receive an evidentiary hearing on

your petition, application or motion?

Yes( ) No(#)

(5) Result N/A

(6) Date of result N/A

jurisdiction the result of any action taken on

any petition, application or motion:

(1) First petition, etc. Yes( ) No (”)

(2) Second petition, etc. Yes ( ) No (”)

(d) If you did not appeal from the adverse action

on any petition, application or motion, explain

briefly why you did not: N/A

Do you have any petition or appeal now pending in

any court, either state or federal, as to the judgment

under attack? Yes( ) No (#)

Give the name and address, if known, of each attor-

ney who represented you in the following stages of

the judgment attacked herein:

(a) At the preliminary hearing N/A

(b) At arraignment and plea N/A

(d) At sentencing N/A

(e) On appeal N/A

(f) In any post-conviction proceeding N/A

(g) On appeal from any adverse ruling in _post-

conviction proceeding N/A

16. Were you sentenced on more than one count of an

indictment, or on more than one indictment, in the

same court and at the same time? Yes (_ ) No (”)

17. Do you have any future sentence to serve after you

complete the sentence imposed by the judgment under

attack? Yes( ) No (#)

(a) If so, give name and location of court which

imposed sentence to be served in the future:

N/A

(b) And give date and length of sentence to be

served in the future: N/A

petition attacking the judgment which imposed

the sentence to be served in the future?

Yes( ) No (#)

Wherefore, petitioner prays that the court grant petitioner

relief to which he may be entitled in this proceeding.

I UNDERSTAND THAT ANY FALSE STATEMENT

OR ANSWER TO ANY QUESTIONS IN THIS APPLI-

CATION WILL SUBJECT ME TO THE PENALTIES

OF PERJURY (A FINE OF $10,000 OR IMPRISON-

MENT FOR FIVE (5) YEARS, OR BOTH).

I declare that under penalty of perjury that the foregoing

is true and correct.

Executed on 8-15-94

/8/ Kenneth Lynce A-35-26-41

Signature of Attorney (If Any)

[Filed Aug. 18, 1994)

IN THE UNITED STATES DISTRICT COURT

OF THE MIDDLE DISTRICT OF FLORIDA

Case Number: 94-891-CIV-ORL-18

KENNETH LYNCE, ef. al.,

Petitioner,

Vv.

HAMILTON MATHIS, Superintendent,

Respondent.

MEMORANDUM OF LAW

This is an memorandum of law to a petition for writ

of habeas corpus, pursuant to U.S.C. Title 28, § 2254.

KENNETH Lynce #352641

Tomoka Correctional Institution

3950 Tiger Bay Road

Daytona Beach, FL 32124

GROUND ONE

While this petitioner fully respects the principles of

comity which underlie the federal system of collateral

review and also fully understands the requirements of

exhausting state judicial review, he claims exemption to

this rule under futility exemption.

Under limited circumstance, such as cases where

presentation to state courts would be futile due to

adverse Supreeme Court precedent, federal courts

may excuse habeas petitioners from compliance with

the exhaustion requirement 28 U.S.C.A. § 2254 (b

&c).

Futility brought about by afverse precedent is sufficient

to make exhaustion of state remedies unnecessary for

habeas corpus purposes. If the state’s highest court has

recently rendered an adverse decision in an identical case

and if there is no reason to believe state court would

change its position, federal court should not dismiss the

petitioner for federal habeas corpus for failure to ex-

haust state remedies. Layton v. Carson, 479 F. 2d 1275

(Sth Cir. 1973); Spencer v. Texas, 385 U.S. 554, 87

S. Ct. 648 (1967).

In Dugger v. Rodrick, 584 So. 2d 2 (Fla. 1991) and

Dugger v. Grant, 610 So. 2d 428 (Fla. 1992), the

Florida Supreme Court addressed the substantially simi-

lar to the present case. In Grant, an inmate convicted

of Second Degree Murder and receiving provisional and

administrative gaintime credits, lost these credits retro-

actively and in the future should such credits be awarded

once more. Since there is no reason to expect that the

Florida Supreme Court would depart from its precedent

in Rodrick and Grant, it is apparent that any efforts to

exhaust state remedies, would only served to force the

petitioner to postpone his federal hearing until he has

completed a useless progression through the state re-

medial machinery and forestall the wasteful use of ju-

dicial resources resulting from vain application to the

State courts. (note, Developments in the Law—Federal

Habeas Corpus, 83 Harv. L. Rev. 1038, 1099-1100).

Technical exception to exhaustion requirement; al-

though referring to claims of “technical exhaustion” at

the state level, in Galtieri v. Wainwright, 582 F. 2d 348

(Sth Cir. 1978), the same logic in determining the peti-

tion at hand exhausted applies. There are thousands

of inmates who were affected adversely by the December

1992 decision by the Florida Department of Corrections

to revoke all of their previously awarded provisional and

administrative gaintime credits. Yet, over one year later,

these inmates have struggled through a maze of adminis-

trative and judicial redress attempting to find a adequate

remedy for their situation knowing all the time there

wasn’t one in the state administrative or judicial branch

of government. It should appear of great concern to this

court that so few of these affected inmates have even at-

tempted redress. It is this petitioner’s contention that

this is due mainly to the confusing requirements neces-

sary to begin such an arduous legal task.

Considering 1). the average educational level of these

inmates, 2). the shortage of qualified law clerk (as few

as 2 per a population of 1000) at some institution that

are certified and further lack of experienced inmate clerks

in the matter of procedural law and 3). the lack of pro

bono or court appointed attorneys available to this peti-

tioner and those similarly situated, this petitioner respect-

fully asks this court to consider a further exemption to

the exhaustion requirement based upon Florida’s voerly

complicated, technical and time-consuming requirements

for redress at the administrative and state levels.

Previous legal situations regarding the Florida Depart-

ment of Corrections onerously changing awards of gain-

time (i.e. Waldrup v. Dugger, supra; Weaver v. Graham,

450 U.S. 24 (1981); Raske v. Martinez, 876 F. 2d 1496

(11th Cir. 1989), took up to five years to resolve in the

mechanically administered legal system, resulting in a de-

cision in favor of the inmate petitioners, a mandamus

being ordered against the Florida Department of Correc-

tions for not complying timely with adjusting affected

inmate’s gaintime, and many inmates being “emergency

released” because, after gaintime adjustment, they had

been incarcerated beyond their actual release dates.

Petitioner seeks the avoidance of a repeat of this situa-

tion in the instant case. This is particularly important to

this petitioner because his release date according to the

law that awarded the gaintime has expired since October

1, 1992. See Exhibit 1.

GROUND TWO

The Petitioner petition this Honorable Court for atem-

porary restraining order and/or preliminary injunction to

restore the revoked provisional credits, allow him to be

eligible for further provisional credit awards and to re-

store his status of freedom with all privileges which were

revoked as natural or actual consequences of the revok-

ing of said release credits.

On October 1, 1992 the Petitioner was released from

the custody of the Department of Corrections. On June

10, 1993 the Petitioner was reincarcerated in the Depart-

ment of Correction, pursuant to an opinion by the Attor-

ney General of the State of Florida, reinterpreting Florida

Statute Section 944.277 and Florida Administrative 33-

28.001 and thus making Petitioner and all other similarly

situated inmates with murder charges ineligible for pro-

visional release credits past and future. See Exhibit 2.

During this period of reclassification, Petitioner was

ordered back to close custody institution, shackled, hand-

cuffed and transported to Central Florida Reception Cen-

ter. This reclassification was done on the Petitioner al-

though he has EOS his sentence and the Department of

Corrections didn’t have anymore jurisdiction on his

person.

In addition, classification at Central Florida Reception

Center informed the Petitioner that all his accured pro-

visional release credits had been revoked thus altering his

release date from October |, 1992 to November 5, 1998.

This now makes him ineligible for work release and other

associated privileges and deprived him of his liberty.

Petitioner will also be ineligible for further provisional

release credits which may be granted in the coming years

depending upon population and overcrowding situation.

Petitioner is entitled to a temporary restraining order

against the Respondent in this cause. A litigant may be

praisers, 388 F. Supp. 1046, 1049 (E.D. Wisc. 1975).

a. Irreparable Injury

The loss of constitutional rights, even for short period

of time, constitute irreparable injury. Elrod v. Burns,

427 U.S. 347, 373 (1976) & Deerfield Medical Center v.

City of Deerfield Beach, 662 F. 2d 328, 338 (Sth Cir.

1981).

Petitioner's due process constitutional rights as set forth

in the United States Constitution, ex post facto clause

will be violated by the revoking of provisional credits

already granted and the reinterpretation of laws already

in effect at the time of Petitioner’s offense, thus adding

time to a sentence he has already expired legally.

Petitioner's Eighth Amendment and any other appli-

cable constitutional rights were clearly violated when he

was reincarcerated and place back into the custody of the

Department of Corrections pursuant to the aforemen-

tioned opinion.

It will take years for the Petitioner to complete all of

the administrative and state level remedies before this

issue will receive full redress from any court.

There is no other adequate remedy of law. The “griev-

ance system of the Florida Department of Corrections

has been certified by the Attorney General Office of the

United States, thus requiring exhaustion of administra-

tive remedies even before Petitioner can begin legal ac-

tion within this court system. Petitioner is guaranteed

to be turned down at all levels of the administrative and

custody on a sentence he has legally completed in ac-

cordance to Florida’s laws in existence at the time.

b. Absence of harm to the adverse party

The Respondent(s) have no legitimate interest in re-

voking the Petitioner’s provisional credits and depriving

him of his liberty without a court order.

The Respondent’s main interest in revoking Petitioner's

provisional credits is to quell public outcry over the early

release of Donald McDugall. Violating the Petitioner's

and many other similarly situated inmates constitutional

rights to shift blame or buy time makes as much constitu-

tional sense as arresting all the Black males in this

country on the premise that since many will be in prison

or on probation, the public will be safer if they're all

locked up. Yes, crime rates would likely decrease, but

% of the Black men in this country would have their

constitutional rights severely violated. Individual rights,

no matter how disrefranchised the group, are the basis

of this country’s political and legal foundation.

If I lose these credits, serve additional years in prison,

lose my freedom and the income I could have been

making, etc. and win on the merits two-three years from

now, I will never regain the loss and pecuniary

will not be able to make up for it.

c. Public Interest

It is in the public interest that government official act

in a lawful manner and not violate their own rules,

regulation or laws) . . . sought to .

v. Rowles, 321 U.S. 321, 330, 64 S. Ct. 587 (1944).

The intent of government in passing its laws and requir-

tig ;

ticle II, Section 5 and Florida Statute Section 876.05.

On October 1, 1992, Respondent clearly violated Flor-

ida Statute Section 944.277 and Florida Administrative

Code 33-28.001 when they revoked Petitioner’s provis-

ional release credits and deprived him of his liberty, and

prohibit him from earning further credits toward release

thereby increasing his prison sentence that has been ex-

pired.

It is in the public interest that the law of the land is

followed and the law states that Petitioner should re-

ceive provisional release credits, past and future.

d. Likelihood of ultimate success on the merits

Petitioner likelihood of winning final judgment on the

issue Of his provisional release credits is overwhelming.

Repeatedly, the Department of Corrections and the

State have been found to violate the ex post facto when

the pass new rulings which adversely affect certain groups

of inmates. Consequently, they have forced these inmates

to bide their time as the ever slower wheels of justice

grind out a decision in the inmate’s favor.

Florida Statute Section 944.277 and Administrative

Code Section 33-28.001 created a liberty/vested interest,

right and entitlement for the petitioner. The Supreme

Court has held that state-created liberty interest may be

found in “statutes or other rules.” Connecticut Board of

Pardons v. Cunschat, 452 U.S. 458, 101 S. Ct. 2460

(1981).

Most federal courts have held that a state regulation

or directives is sufficient to creat a liberty interest as

well. Parker v. Cook, 642 F. 2d 865 (Sth Cir. 1985) &

Gorham v. Hutto, 667 F. 2d 1146 (4th Cir. 1981).

Petitioner concedes that not every statute or regulation

creates a liberty interest but if a statute or regulation

limits the discretion of state officials by providing that

they may or must take some action only under certain

prescribed circumstances, the statute or regulation creates

a liberty interest or entitlement or right.

Thus, in Greenhultz v. Inmates of the Nebraska Penal

and Correctional Complex, 442 U.S. 1. 99 S. Ct. 2100

(1979), the state parole provided that an eligible prisoner

would be released unless the board found on of four

disqualification applicable.

Florida Statute Section 944.277 (1988) specifically

states: Thus, inmates with a second degree murder or

attempted murder were eligible for provisional release

credits “unless a sex act was attempted or completed

during the commission of the offense.”

In 1989, this statute was revised to disqualify those

‘convicted of second degree murder or attempted murder

committed or or after January 1, 1990. Petitioner’s crime

occurred . Note: As created by S. 4,

Chapter 89-100, applicable to offenses commited on or

after January 1, 1990. Florida Statute Section 944.277

(1989).

Because this statute creates an expectancy of release

unless on of certain prescribed conditions exist. The Su-

preme Court held that a protectable entitlement was

created. Id. 44 U.S. at 11-12. See also Hewitt v. Helms,

103 S. Ct. 864, 871 (1983) (“the repeated use of ex-

plicitly mandatory language in connection with requiring

specific substantive predicates demands a conclusion that

the state has created a protected liberty interest.” )

The State of Florida created further expectation of re-

lease through adoption of Florida Administrative Code

Section 33-28.001 provisional credits:

(1) Eligibility. All incarcerated offenders, including

those in the reception process, those in the custody of

another agency and those in contracted facilities while

actively serving a Florida sentence, who are earning in-

centive gain time and who are not otherwise ineligible

as provided in subsection (2) shall be awarded provis-

ional release credits.

(2) Ineligibility. No inmates shall be eligible to re-

ceive provisional release credits if the crime was com-

mitted on or after January 1, 1990 and wither the cur-

rent or a previous conviction was for committing or at-

tempting to commit murder in the First, Second, or third

degree under § 782.04(1)(2)(3) or (4), of Florida

Statute or has ever been convicted of any degree of mur-

der in another jurisdiction.

The Petitioner submits that he and the Florida Depart-

ment of Corrections both had an expectation of his re-

lease, because he was eventually released on it with ac-

cording privileges as clearly stipulated in accordance with

State law.

The Petitioner an anticipate that the state will not

ony argue that he has no vested or liberty interest in

receiving provisional release credits, but that this is due

to the fact it is discreionary and seperate and appart

from incentive gain time or basic gain time. (See Florida

Statute Section 944.275)

In reality, provisional release credits were lace more

automatic and mandatory than incetive gain time and not

quite as mandatory as basic gain time.

Provisional release credits are calculated off an inmates

release date the same as incentive or basic gain time days

off are calculated. The only difference is in the way the

amount of time-off is arrived at. These are not apples

and orange we're discussing here but merely the differ-

ence between golden delicious, granny and Washington

reds. Although, provisional credits is the statutory lan-

guage of this gain time, it is still known in the Depart-

ment of Corrections as administrative gain time.

1. Provisional Release Credits (Administrative Gain

Time) are awarded off all eligible inmate sentences when

the prison population reaches 97.5% of the lawful ca-

pacity as defined in Florida Statute Section 944.096

priv (revised to 98% in Florida Statute Section 944.096

2. Basic Gain Time is awarded automatically off all

eligible inmates sentences at the beginning of their incar-

ceration. 10 days off for every 30 to be served (“4 off

the top”). Florida Statute Section 944.275(4) (a).

3. Incentive Gain Time is awarded off all eligible

inmate sentences where the inmate works to certain

standards prescribed in Florida Statute Section 944.275

(b) and Administrative Code Section 33-11.

Release Credits or Gain Time . . . the terms may be

different, but the concept is still the same. Both are

protected vested or liberty interests. Both were estab-

lished under the auspices of the Florida Legislature and

the Petitioner is entitled to receive same. None is con-

stitutionally required and a matter of keeping down in-

mate population and serving as a positive reinforcement

for good behavior (even with provisional credits, a dis-

ciplinary report, prohibited earning provisional release

credits (administrative gain time) for two (2) months).

GROUND THREE

Reinterpretation of Florida Statute Section 944.277 and

Florida Administrative Code Section 33-28.001 consti-

tutes unconstitutional ex post facto law as applied to

Petitioner convicted of any murder offenses prior to Janu-

ary 1, 1990. “No State shall . . . pass any . . . expost

facto law...”

In Weaver v. Graham, 450 U.S. 24, 101 S. ct. 960

(1981); Raske v. Martinez, 876 F.2d 1496 (11th Cir.

1989); Knuck v. Wainwright, 759 Fed. Rep. 856 (may

6, 1985) & Waldrup v. Dugger, 562 So. 2d 687 (Fila.

1990) are controlling in this case and uphold that when

the Department of Corrections changes laws after an

inmates’s offense which make a sentence more onerous

upon that inmate, an ex post facto violation has occurred.

If a new provisional constricts the inmate’s opportunity

to earn early release and thereby makes more onerous

the punishment for crimes committed before its enact-

ment, this result runs afoul of the prohibition against

ex post facto laws Weaver 450 U.S. at 35-36, 101 S. Ct.

at 968. this is obviously the case with the Petitioner who’s

sentence will not only be extended, but where the state

actually took back provisional release credits already

given him in 1987 and he was later released from prison

and reincarcerated on the exact same conviction.

The courts in Weaver and Raske have both held that

even if a rule is discretionary, or a matter of legislature

grace, this chaaacterization does not prevent an ex post

facto violation occurring as applied to Petitioner in this

cause.

Even a statute merely alters penal provisions accorded

by the grace of the legislature, it violates the [ex post

facto] if it-is both retrospective and more onerous than

the law in effect at the date of the offense”. Weaver,

450 U.S. at 30-31, 101 S. Ct. at 965. Since there is no

constitutional requirement to receive any gain-time at all

(thus no “vested interest” in the state’s opinion) and

the ex post facto clause has repeatedly been held appli-

cable, there can be no distinction in the instant case.

The facts in Weaver, Raske, Waldrup and Knucke are

nearly identical to the instant case and the Petitioner

would like for this court to take judicial notice to this

fact. The Respondent(s) are forcing inmates to bide

their time while this matter is settled in court. They are

deliberately sandbagging the issue with every major

change of law (Knucke, 1985 regarding 1983 changes;

Weaver, 1981 regarding 1978 changes & Raske, 1989

regarding 1983 changes), years have passed between the

wrong and the “end of justice being served.”

Petitioner contends that the Respondent(s) have shown

“bad Faith” and a “deliberate indifference” toward his

constitutional and legal rights in order to keep him in a

state of bondage and servitude, to wait until the public

calms down and years pass while this issue is settled for

the Petitioner within conventional legal channels.

It is well established that a penal statute violates the

ex post facto clause if after a crime has been committed,

it increases the penalty attached to that crime. The

United Supreme Court clearly established this principle

in the early case of Calder v. Bull, 3 U.S. (3 Dall.) 386,

390, 1 L. Ed. 648 (1798, and has adhered to this basic

definition ever since. E.g. Weaver v. Graham, 450 US.

24, 28, 101 S. Ct. 960, 963, 67 L. Ed. 2d 17 (1981)

(citing Calder, 3 U.S. (3 Dall.) at 390).

The policy underlying this prohibition is “to assure

that legislative Acts give fair warning of their effects and

permit individuals to rely on their meaning until explicitly

changed.” Id., 450 U.S. at 28-29, 101 S. Ct. at 963-64

(citing Dobbert v. Florida, 432 U.S. 282, 298, 97 S. Ct.

2290, 2300, 53 L. Ed. 2d 344 (1977); Kring v. Mis-

souri, 107 U.S. 221, 229, 2 S. CT. 443, 449, 27 L. Ed.

506 (1883); Calder, 3 U.S. (3 Dall.) at 396 (Patterson,

J.); The Federalist No. 44 (J. Madison) & No. 84 (A.

Hamilton). Equally, the ex post facto clauses of the

constitution “restrict[] governmental power by restraining

arbitrary and potentially vindictive legislation.” Id., 450

U.S. at 29, 101 S. Ct. at 964 (citing Malloy v. South

Carolina, 237 U.S. 180, 183, 35 S. Ct. 507, 508, 59

L. Ed. 905 (1915); Kring, 107 U.S. at 229, 2 S. Ct.

at 449; Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 138,

3 L. Ed. 162 (1810); Calder, 3 U.S. (3 Dall.) at 396.

A retroactive law, however, is not ex post facto unless

two critical elements are present: The law must apply

to events occurring before its enactment, and it must

disadvantage the offender. Id. (Citing Lindsey v. Wash-

ington, 301 U.S. 397, 401, 57 S. Ct. 797, 799, 81, L. Ed.

1182 (1937); Calder, 3 U.S. (3 Dall.) at 390.

In Harris v. Wainwright, 376 So. 2d 856 (Fla. 1979),

the court held that gain time allowance is an act of

grace rather than a vested right and may be withdrawn,

modified, or denied. The United States Supreme Court

in Weaver directly overruled Harris, finding that [c]on-

trary to the reasonsing of the Supreme Court of Florida,

a law need not impair a “vested right” to violate the

ex post facto prohibition . . . critical to relief under the

Ex Post Facto Clause is not an individual’s rights to

less punishment, but the lack of fair notice and govern-

mental restraint when the legislature increases the punish-

ment beyond what was prescribed when the crime was

consummated. Thus, even if a statute merely alters penal

provisions accorded by the grace of the legislature, it

violates the Clause if it is both retrospective and more

oneous than the law in effect on the date of the offense.

The Eleventh Circuit has reached this conclusion in a

recent case raising exactly the issue before this Court

today. Raske, 876 F. 2d at 1499-1500. We agree with

the Eleventh Circuit’s analysis in Raske said the United

States Supreme Court. Even “grace” of the legislature,

once given cannot be rescinded retrospectively. The Flor-

ida Supreme Court agreed with the Department of Correc-

tions that gain time statutes do not create vested rights

until gain time actually is awarded, subject to all other

applicable statutory conditions. Therefore, the provisional

release credits AKA (administrative gain time) has been

admittedly confirmed to be a “vested right” by the De-

partment of Corrections and Florida Supreme Court in

this cause, once it has been awarded.

The Petitioner’s provisional release credits ( Administra-

tive Gain Time) had been awarded and he had been

discharged from the Department of Corrections under the

applicable statutory conditions, entitle him to be released

immediately.

Subsequently, if this Honorable Court requires the De-

partment of Corrections to apply and reinstate the provi-

sional release credits and release the Petitioner, the equal

protection clauses of the state and federal constitutions

require that Department of Corrections shall treat all

other similarly situated inmates the same.

CONCLUSION

The temporary restraining order should be granted

without further delay for notice of purpose because of

the risk of loss of various constitutional and legal rights

ultimately his freedom. Petitioner has placed a copy of

these papers in the mail to each of the Respondents and

has attached an affidavit herewith.

Even if this court finds that Petitioner is not entitled

to a temporary restraining order, it should grant Peti-

tioner a preliminary injunction after notice to the Re-

spondents. Petitioner has gone ahead and served notice

on same.

A preliminary injunction may be granted uponnotice

based on consideration of the same four factors discussed

in this writ. supra. Florida Medical Association, Inc. v.

U.S. Dept. of HRS, 601 F. 2d 199 (Sth Cir. 1979).

Petitioner incorporates that discussion by reference at

this juncture.

WHEREFORE, the court should grant a temporary

restraining order or in the alternative, a preliminary in-

junction directing the Respondent to:

1. Restore Petitioner’s Provisional Release Credits.

2. Restore his eligibility for future Provisional Release

Credits.

3. Restore his freedom by ordering he be released

from the custody of the Department of Corrections

immediately.

4. Any further actions this court deems necessary at

this time.

Respectfully submitted,

/s/ Kenneth Lynce A-35-26-41

KENNETH LYNCE #352641

Tomoka Correctional Institution

3950 Tiger Bay Road

Daytona Beach, FL 32124

[Certificate of Service & Jurat Omitted in Printing]

Exhibit |

FLORIDA DEPARTMENT OF CORRECTIONS

OFFENDER EMPLOYMENT ID. CARD

[Doc Loco]

NAME: Kenneth Lynce

DC #352641

SIGNATURE: Kenneth Lynce

DOB: 11/27/58 RACE: Black SEX: Male

HEIGHT: 72” WEIGHT: 200

HAIR: Baack EYES: Brown

ISSUED: 10/01/92 LOCATION: Hendry C.I.

/s/ [{Mlegible]

Exhibit 2

[SEAL]

CENTRAL FLORIDA Governor

RECEPTION CENTER LAWTON CHILES

Secretary

HARRY K. SINGLETARY, JR.

Post Office Box 628040

Orlando, Florida 32862-8040

Telephone: (407) 282-3053

SunCom 369-1000

INMATE NAME Lynce, Kenneth DC #352641

C-207L

NOTICE TO INMATE

1993 Legislation (effective June 17, 1993), provides that

all awards of administrative gain-time under s. 944.276

and provisional credits under s. 944.277 are to be can-

celed for all inmates serving a sentence or combined

sentences in the custody of the department, or serving a

state sentence in the custody of another jurisdiction. Re-

lease dates of all inmates with | or more days of such

awards shall be extended by the length of time equal to

the number of days of administrative gain-time and pro-

visional credits which were canceled.

Based on the foregoing, your overall tentative release date

has been recalculated and is 5-29-98.

7-6-93

Date of Notification

/s/ B. Bryant

Classification Specialist

The original notice should be provided to the inmate with

a copy retained in the institutional file and a copy for-

warded to Central Records in Admission and Release.

When I came back from court in Sept. with no time lost

my date was at 11-23-98. I been Inccaratted for over

a year and it is in the 8 month of 1998.

[Filed Jan. 20, 1995}

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

Case No. 94-891-CIV-ORL-18

KeNNETH LYNCE,

Petitioner,

HAMILTON MATHIS, ef ai.,

Respondents.

RESPONSE TO MAGISTRATE JUDGE’S ORDER OF

JANUARY 4, 1995

Petitioner, KENNETH LYNCE, hereby responds to

the Magistrate Judge’s Order of January 4, 1994, request-

ing a statement of his position and further clarification of

the issue before the Court. The Petitioner would state

as follows:

1. That the Petitioner filed his Petition for Writ of

Habeas Corpus on August 15, 1994, challenging the

retroactive application of § 944.277(1)(i), Florida Stat-

utes (Supp. 1992), as violative of the Ex Post Facto

Clause, United States Constitution, Art. I, Sec. 10.

2. That the retroactive application of the Florida Stat-

ute revoked previously earned provisional gain time credits

which caused the Petitioner to be reincarcerated on June

10, 1993. Petitioner was released from prison on October

1, 1992.

3. That since being reincarcerated, Petitioner has suf-

fered and continues to suffer irreparable injury due to the

unconstitutional action taken by the State of Florida.

4. That further review of this ex post facto claim

in State Court would be futile in light of current binding

Florida Supreme Court precedent. Griffin v. Singletary,

So.2d 500 (Fla. 1994).

. That Petitioner demands the issuance of a writ of

habeas corpus declaring § 944.277(1)(i), Florida Stat-

utes (Supp. 1992) unconstitutional as applied to him

and ing his release immediately.

6. That on September 23, 1994, this Court ordered

the State to file a response to the petition herein.

7. That an Order to Show Cause was issued on Oc-

tober 26, 1994, because the State failed to respond as

directed.

8. That on November 7, 1994, the State requested

an extension of time until December 7, 1994, to respond

and the Court granted this request. Nothing was filed

by Respondent.

9. That a status conference on January 4, 1995, pro-

vided the Respondent with the opportunity to orally ex-

press its objection to the petition, but the Respondent

has yet to formally reply to the petition after the Court

has given several extensions of time.

10. That the Petitioner has clearly set forth his posi-

tion in his petition and demands an expedited ruling on the

merits and immediately release from further imprisonment.

WHEREFORE, the Petitioner, KENNETH LYNCE,

demands a writ of habeas corpus be issued for his release

declaring the retroactive application of Florida Statute

§ 944.277(1)i) unconstitutional as violative of the Ex

Post Facto Clause of Art. I Sec. 10, U.S. Constitution.

DATED this 20th day of January, 1995.

H. Jay STEVENS

Federal Public Defender

By: /s/ Joel T. Remland

Joe, T. REMLAND

Assistant Federal Public Defender

FL Bar ID No. 169291

80 N. Hughey Avenue, Suite 417

Orlando, Florida 32801-2229

Telephone: (407) 648-6338

Fax: (407) 648-6095

[Certificate of Service Omitted in Printing]

[Filed Mar. 6, 1995]

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

[Title Omitted in Printing]

RESPONDENT'S ANSWER TO PETITION FOR

WRIT OF HABEAS CORPUS AND RESPONSE TO

SHOW CAUSE ORDER ENTERED FEBRUARY 21

Respondent, HARRY K. SINGLETARY, JR., as Sec-

retary of the Florida Department of Corrections, responds

to this Court’s order entered February 21, 1995, and

answers the petition for writ of habeas corpus. For the

reasons set forth below, the petition should be dismissed.

Preliminary Statement

_ Petitioner, Kenneth Lynce, is an inmate in the custody

of the Florida Department of Corrections, presently in-

carcerated at Tomoka Correctional Institution, in Daytona

Beach, Florida. Petitioner was first received by the de-

partment in April 1986 to serve an overall term of 22

years for attempted first degree murder, among other

crimes. (Exhibit A.) Through the accumulation of gain-

time and the allocation of early release credits due to

prison overcrowding in the form of administrative gain-

time under former Florida Statutes 944.276 (1987) (335

days credited between February 1987 and June 1988)

and provisional credits under former Florida Statutes Sec-

tion 944.277 (1989) (1860 days between July 1988 and

January 1991), Lynce was released from custody on

October 1, 1992. (Exhibit A.)

Subsequent to this release, the Attorney General of

Florida issued 1992 Op. Att'y Gen. Fla. 092-96 (Decem-

ber 29, 1992), in which the Attorney General indicated

that the Department of Corrections had erroneously inter-

preted 1992 legislative amendments to Florida Statutes

Section 944.277(1)(i) that excluded from eligibility for

early release due to prison overcrowding a class of of-

fenders involving crimes of murder or attempted murder.

(Exhibit A.) According to the Attorney General, the

reenactment of that provision during the 1992 legislative

session mandated that all previous provisional credits al-

located to this class of offenders be retroactively cancelled

effective July 6, 1992. (/d.) The Attorney General also

opined that the department had the authority to return to

custody any prisoner who was mistakenly released as a

result of the department’s erroneous interpretation. (/d.)

Therefore, the department issued a warrant for retaking

prisoner on May 3, 1993; presented the warrant to the

sentencing court in the Ninth Judicial Circuit where

Lynce was convicted; and received an Order for Execu-

tion of Sentence Imposed and Retaking of Prisoner on

May 17, 1993. (/d.) Lynce was returned to custody on

June 8, 1993, based upon that order. (/d.)

Respondent notes that after his return to custody,

Lynce received a new 412 year sentence for possession of

cocaine (Exhibit A); however, because Lynce’s previous

22-year term has been reinstated, it controls his release

date. As of the date of the preparation of the affidavit

appearing as Exhibit A, which is November 29, 1994,

Petitioner’s tentative release date was calculated to be

May 19, 1998.

Argument

I. Exhaustion of State Court Remedies

Petitioner has filed an application for federal habeas

corpus relief pursuant to 28 U.S.C. § 2254.

Title 28 U.S.C. § 2254 provides, in part, that

(b) An application for a writ of habeas corpus in

behalf of a person in custody pursuant to the judge-

ment of a State court shall not be granted unless it

appears that the applicant has exhausted the rem-

edies available in the courts of the State, or that

there is either an absence of available State correc-

tive process or the existence of circumstances render-

ing such process ineffective to protect the rights of

the prisoner.

hausted the remedies available in the courts of the

State, within the meaning of this section, if he has

the right under the law of the State to raise by any

available procedure, the question presented.

28 U.S.C. § 2254(b), (c).

Principles of comity and federalism underlie the two-

tier system of collateral review and the exhaustion. re-

quirement that has been codified in 28 U.S.C. § 2254

(b)-(c) (1976). Thompson v. Wainwright, 814 F.2d

1495, 1502 (lith Cir. 1983). A state prisoner is re-

quired to exhaust all constitutional claims within the

state’s judicial and administrative forums before present-

ing them in a federal habeas corpus proceeding. Braden

v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484,

93 S.Ct. 1123, 35 L.Ed.2d 443 (1973) (doctrine of

exhaustion of state remedies as a prerequisite to federal

habeas corpus action is a judicially crafted instrument);

see also Brown vy. Estelle, 530 F.2d 1280 (Sth Cir.

1976); Rose v. Lundy, 455 U.S. 509, 522 (1982); Ali v.

The State of Florida, 777 F.2d 1489, 1489-90 (11th Cir.

1985). The exhaustion requirement includes exhaustion

of “all available state remedies,” Braden, 410 U.S. at 491,

requiring the petition to exhaust not only state judicial

remedies, but also state administrative procedures.’

' Respondent advises the Court that Petitioner has both adminis-

trative and state court remedies available to resolve the issues

raised in the petition. First, the Florida Department of Correc-

tions provides a grievance procedure to inmates through which

Petitioner concedes that he has not exhausted his state

court remedies. Petitioner claims that such exhaustion

would be futile. Respondent would agree if the only

facts and legal issues in this cause were related to the

retroactive cancellation of early release credits for prison-

ers in custody of the department at the time of the can-

cellation. See Griffin v. Singletary, 638 So. 2d 500 (Fila.

1994): Langley v. Singletary, 19 Fla. L. Weekly S647

(Fla., December 8, 1994). However, Petitioner was not

similarly situated to those prisoners in custody because

he was released prior to the issuance of the Attorney

General’s opinion that indicated that the department had

misinterpreted the 1992 amendments. Thus, Petitioner,

unlike those petitioners whose claims were addressed by

the Florida Supreme Court in Griffin and Langley, supra,

may have additional claims relative to his return to

custody which require specific factual determinations and

interpretations of state law that have not been fully

exhausted. Since Petitioner has failed to properly raise

the issues presented in this proceeding in the courts of

this state and since Respondent does not waive the ex-

haustion requirement, the petition must be dismissed. See

Thompson v. Wainwright, 714 F.2d 1495 (11th Cir.

1983).

issues such as those raised by Petitioner may be administratively

reviewed, addressed, and corrected, if appropriate. Fla. Admin.

Code Ch. 38-29. If the inmate desires further review, he may file

an extraordinary writ petition with the appropriate state circuit

court. Art. V, §5, Fla. Const.; Fla.R.Civ.P. 1.630; Fla.R.App.P.

9.100. Since writs of mandamus and habeas corpus are extraordi-

nary remedies, exhaustion of administrative remedies is generally

required prior to invoking the jurisdiction of the circuit court.

See Griggs v. Wainwright, 473 So.2d 49 (Fla. lst DCA 1985).

Review of any circuit court decision may be secured by appeal

to the appropriate district court of appeal. Art. V, § 4, Fla. Const. ;

Fla.R.App.P. 9.110. Review of the decision of a district court of

appeal by the Court of Florida is only available in limited in-

stances. Art. V, § 3, Fla. Const.; Fla.R.App.P. 9.110; 9.120; 9.125.

Il. The Ex Post Facto Claim

In the event that this Court disagrees that exhaustion

is futile, Respondent addresses the sole claim raised by

the Petitioner—that is, the retroactive cancellation of

early release credits previously allocated amounts to an

€x post facto violation of law.”

* * * *

The framers of the Constitution considered the ex post

facto prohibition so important that it appears twice—

once in Article I, Section 9, forbidding the Congress from

passing any ex post facto law, and again in Article I,

Section 10, placing the same limitation upon the states.

Early opinions of the Supreme Court have recognized

that “ex post facto law” was a term of art with an

established meaning at the time of the framing of the

Constitution. Calder v. Bull, 3 U.S. (3 Dall.) 386, 391

(1798) (opinion of Chase, J.); id. at 396 (opinion of

Paterson, J.). In Calder, the seminal case in ex post

facto analysis, Justice Chase noted that:

The prohibitivn, “that no state shall pass any ex post

facto law,” necessarily requires some explanation;

for, naked and without explanation, it is unintelli-

gible, and means nothing.

Id. at 390.

While taken literally, “ex post facto” could encompass

any law passed “after the fact”, Justice Chase sought to

clarify in Calder what laws, in his view, were implicated

by the ex post facto clauses:

Ist. Every law that makes an action done before

the passing of the law, and which was innocent

2In addressing only the ex post facto claim, Respondent takes

the position that Petitioner has waived consideration of any other

claims which might be related to his return to custody. Appointed

counsel has declined to file an amended petition which might in-

clude other claims, thus Petitioner is limited to the issue raised

in his pro se petition.

when done, criminal; and punishes such action. 2d.

Every law that aggravates a crime or makes it

greater than it was, when committed. 3d. Every

law that changes the punishment, and inflicts greater

punishment, than the law annexed to the crime,

when committed. 4th. Every law that alters the

legal rules of evidence, and receives less, or different

testimony, than the law required at the time of the

commission of the offense, in order to convict the

offender.

Id. at 390.

As is apparent from this definition, the constitutional

prohibition on ex post facto laws applies to penal statutes

which disadvantage the offender affected by them. Calder,

3 US. (3 Dall.) at 390-392; see also, Weaver v. Graham,

450 U.S. 24, 28-29 (1981). There is no doubt that one

of the objectives underlying the ex post facto prohibition

is to provide fair notice and to foster governmental re-

straint when a legislature increases punishment beyond

what was prescribed when the crime was consummated.

Calder, 3 U.S. (3 Dall.) at 387-388; Fletcher v. Peck,

10 U.S. (6 Cranch) 87, 138 (1810); Dobbert v. Florida,

432 U.S. 282, 298 (1977); Weaver, 450 U.S. at 28-29

(1981); Miller v. Florida, 482 U.S. 423 (1987).

However, the prohibitions of the ex post facto clauses

do not extend to every change of law that “may work to

the disadvantage of a defendant.” Dobbert, 432 US.

at 293.

It is intended to secure “substantial personal rights”

from retroactive deprivation and does not “limit the

legislative control of remedies and modes of pro-

cedure which do not affect matters of substance.”

Portley v. Grossman, 444 U.S. 1311, 1312 (1980).

The critical question, as Florida has often acknowl-

edged, is whether the new provision imposes greater

punishment after the commission of the offense, not

merely whether it increases a criminal sentence.

Weaver, 450 U.S. at 32, n. 17 (citations omitted).

The fact that harm is inflicted by governmental au-

thority does not make it punishment. Figuratively

speaking all discomforting action may be deemed

punishment because it deprives of what otherwise

would be enjoyed. But there may be reasons other

than punitive for such deprivation.

Paschal v. Wainwright, 738 F.2d 1173, 1176, n.4 (11th

Cir. 1984), citing United States v. Lovett, 328 U.S. 303,

324 (1946).

The underlying purpose of the statutes now under

ex post facto scrutiny is of critical importance in deter-

mining whether a statute is procedural or substantive, or

indeed properly the subject of ex post facto analysis.

Administrative gaintime and provisional credits were no

more than mechanisms for reducing the prison population

for the administrative convenience of the Department of

Corrections—these statutes do not address the substan-

tive matters concerning punishment or reward. See Blank-

enship v. Dugger, 521 So. 2d at 1098; Dugger, 584 So.

2d at 2.

Like the term “ex post facto”, the term “procedural”

requires some explanation. While the earlier decisions of

the United States Supreme Court describing “procedural”

changes have not explicitly defined what is meant by the

term, the Supreme Court has recently expounded upon

and limited the scope of the definition in Collias v. Young-

blood, 497 U.S. 37 (1990).*

In Youngblood, the Supreme Court acknowledged that

previous decisions of the court held that:

%In declining to expand the scope of the ex post facto clauses,

the Supreme Court has receded from its earlier decisions in Kring

v. Missouri, 107 U.S. 221 (1883) and Thompson v. Utah, 170 U.S.

343 (1898).

[A] procedural change may constitute an ex post

facto violation if it ‘affect[s] matters of substance,’

Beazell, supra, at 171, 70 L.Ed 216, 46 S.Ct. 68,

by depriving a defendant of ‘substantial protections

with which the existing law surrounds the person

accused of crime,’ Duncan v. Missouri, 152 US.

377, 382-283, 38 L.Ed. 485, 14 S.Ct.570 (1894),

or arbitrarily infringing upon ‘substantial personal

rights." Malloy v. South Carolina, 237 U.S. 180,

183, 59 L.Ed. 905, 35 S.Ct. 507 (1915); Beazell,

supra, at 171, 70 L.Ed 216, 46 S.Ct. 68.

Youngblood, 497 U.S. at 45.

However, the Youngblood court went on to hold that

“the references in Duncan and Malloy to ‘substantial

protections’ and ‘personal rights’ should not be read to

adopt without explanation an undefined enlargement of

the Ex Post Facto Clause.” Youngblood, 497 U.S. at 46.

In announcing its decision in Youngblood, the Supreme

Court specifically receded from its earlier decision in

Kring v. Missouri, 107 U.S. 221 (1883):

The Court’s departure [in Kring] from Calder’s ex-

planation of the original understanding of the Ex

Post Facto Clause was, we think, unjustified.

Youngblood, 497 U.S. at 49.

In Kring, the Supreme Court had defined an ex post

facto law as:

[O}]ne which, in its operation, makes that criminal

which was not so at the time the action was per-

formed; or which increases the punishment, or, in

short, which, in relation to the offence or its con-

sequences, alters the situation of a party to his

disadvantage.

Kring, 107 U.S. at 228-229 (quoting United States v.

Hall, 26 F.Case 84 86 (No. 15,285) (D. Pa. 1809)

(emphasis added).

The Supreme Court has now made clear that shifting

the focus of ex post facto analysis from the original

understanding of the ex post facto clause is impermissible

and that the language cited in Kring was never intended

“to mean that the Constitution prohibits retrospective

laws, other than those encompassed by the Calder cate-

gories, which ‘alter the situation of a party to his dis-

advantage.” Youngblood, 491 U.S. at 49-50.

The holding in Kring can only be justified if the

Ex Post Facto Clause is thought to include not

merely the Calder categories, but any change which

“alters the situation of a party to his disadvantage.”

We think such a reading of the Clause departs from

the meaning of the Clause as it was understood at the

time of the adoption of the Constitution, and is not

gaa by later cases. We accordingly overrule

ring.

Id. at 50.

Similarly, in receding from its decision in Thompson v.

Utah, 170 U.S. 343 (1898), the Supreme Court noted:

The right to jury trial provided by the Sixth Amend-

ment is obviously a “substantial” one, but it is not

a right that has anything to do with the definition of

crimes, defenses, or punishments, which is the con-

cern of the Ex Post Facto Clause. To the extent

that Thompson v. Utah rested on the Ex Post Facto

Clause and not the Sixth Amendment, we overrule it.

Youngblood, 497 U.S. at 51-52 (Stevens, Brennan, and

Marshall, concurring).

Petitioner contends that his later exclusion from early

release eligibility through retroactive cancellation of his

credits is ex post facto merely because he will be required

to serve a longer portion of his sentence. Under Young-

blood, the question of whether a prisoner is disadvan-

taged by being required to serve most if not all of his

original sentence falls short of providing a full answer

when conducting an ex post facto analysis. The fact

that Petitioner may feel disadvantaged by being excluded

from early release prompted by prison o i

when considered alone, is insufficient to trigger the pro-

hibitions of the ex post facto clause. Petitioner must also

show that the State’s procedural mechanism to relieve

prison overcrowding through early release credits creates

a “substantial personal right” related to the definition of

crimes, defenses, or punishments. Obviously, these stat-

utes do not retroactively create new criminal offenses nor

do they deprive a defendant of defenses. Thus the

sole question is whether Florida’s early release statutes

“change[] the punishment, and inflict[] a greater punish-

ment, than the law annexed to the crime when commit-

ted.” Calder v. Bull, 3 U.S. (3 Dall.) at 390.

The Supreme Court has also given guidance in deter-

mining whether a statute is punitive or penal in nature.

In Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69

(1963), the Court described the standards traditionally

applied to determine whether a statute is punitive or penal

in nature:

Whether the sanction involves an affirmative dis-

ability or restraint, whether it has historically been

regarded as a punishment, whether it comes into

play only on a finding of scienter, whether its op-

eration will promote the traditional aims of punish-

ment—retribution and deterrence, whether the be-

havior to which it applies is already a crime,

whether an alternative purpose to which it may

rationally be connected is assignable for it, and

whether it appears excessive in relation to the alter-

native purpose assigned are all relevant to the in-

quiry, and may often point in differing directions.

Id. (citations omitted ).

The underlying purpose of the early release statutes

thus becomes of critical importance in determining whether

the statutes are procedural or substantive in nature, or

rence. The statutes were enacted to address the singular

ae of overcrowdi ng—they were never intended to

ate as an incentive to reduced imprisonment or to

become a consideration in the sentencing forum.

Petitioner apparently believes that early release credits

are the equivalent to the basic gaintime addressed in

Weaver v. Graham, 450 U.S. at 24 and the incentive

gaintime addressed in Raske v. Martinez, 876 F.2d 1496

(1ith Cir. 1989) and Waldrup v. Dugger, 562 So. 2d

687 (Fla. 1990). However, the similarities are limited

to the nomenclature. Both basic and incentive gaintime

relate to the sentence imposed, and a release date reduced

by these awards can be reasonably predicted, based upon

length of the term meted out. Basic gaintime is applied

as a lump sum award to reduce the overall length of

sentence the day the prisoner enters the prison gates.

While not necessarily a part of the sentence in a technical

sense, the award of basic gaintime is ar quantifiable deter-

minant of a prisoner’s overall term, which, as the Supreme

Court recognized in Weaver, may operate as a “factor

a [in] the defendant's decision to plea bargain and the

judge’s calculation of the sentence to be imposed.” Simi-

larly, the potential to earn incentive gaintime for labor

performed and constructive activities, although contingent

upon performance and good behavior, is also quantifiable

based upon length of sentence imposed. Thus, to the

extent that these two types of “gaintime” operate in tan-

dem with the length of sentences imposed, they affect the

“quantum of punishment” which attaches at the time the

crime is committed. Conversely, the eligibility and receipt

by a prisoner of early release awards, whether those

awards are called “gaintime”, “credits”, “allotments”, etc.,

is in no way tied to overall length of sentence. The need

for and application of such awards are contingent upon

many outside variables which contribute to prison over-

crowding. There is no relationship to the original penalty

assigned to the crime at the time it was committed nor

to the ultimate punishment meted out. The sole purpose

of the early release statutes is to provide a temporary

mechanism to alleviete the administrative crisis create

i ov ing while continuing protect

in nature—their purpose directed to alleviating the ad-

ministrative crisis of prison overcrowding not to the tradi-

tional purposes of punishment. Consequently, Florida’s

early release statutes create no “substantial _ personal

rights” relating directly to the definition of crimes, -

fenses, or punishments, as defined and limited by

Supreme Court's decision in Youngblood.

It is most important to note that the Eleventh Circuit

Court of Appeals as well as the various federal district

courts in Florida, have concurred with the decisions of

the Florida Supreme Court in Blankenship and Rodrick,

supra, in its holdings that these statutes are administrative

and procedural in nature and not subject to ex post facto

proscriptions.* More recently, this Court has addressed

ida Supreme Court has recently made clear in the

Pe. pcm ow early release credits are not a valid con-

sideration in the sentencing process. See Griffin v. Singletary, 19

Fla. L. Weekly $273 (Fla. May 19, 1994) (original opinion 19 Fla.

L. Weekly S94a, February 24, 1994) (provisional (credits) in no

sense {are} tied to any aspect of the original sentence and cannot

possible be a factor at sentencing or in deciding to enter into a plea

bargain); Tripp v. State, 622 So. 2d 941 (1993) (the trial court

may not direct credit for administrative gaintime or provisional

credits on a prior probationary split sentence or a sentence struc-

ture affected by the Tripp decision ) .

5 See Petrone v. Dugger, Case No. 88-12041-Civ-Atkins, USDC-

Southern District, entered August 8, 1988, aff'd Case No. 88-6061

(11th Cir., August 29, 1989) ; see also Manzanero v. Dugger, Case

the specific issue at bar here—that is, the retroactive

cancellation of provisional credits and administrative gain-

time previously allocated to alleviate prison overcrowding.

The decision in Joseph C. Magnotti v. Harry K. Single-

tary, Case No. 93-8554-Civ-Moreno, USDC—Southern

District, rendered on March 24, 1994, cites with approval

the recent decision of the Florida Supreme Court in this

case: Griffin v. Singletary, 638 So. 2d 500 (Fla. 1994).

Griffin, like the predecessor decisions in Rodrick, Grant.

and Blankenship, supra, makes clear that the “Florida

Legislature did not intend to confer an expectation upon

Florida Inmates such as the petitioner that early release

credits would continue to be applied to shorten their

sentences . . .[t]he provisional credits in § 944.277 were

contemplated not as a prisoner entitlement but merely

as an escape valve which would be triggered only by the

need to alleviate overcrowding in the state prison sys-

tem.” Magnotti at 6. Ultimately, this Court has con-

cluded that the retroactive cancellation of early release

credits allocated specifically for the purpose of alleviating

prison overcrowding does not offend the due process,

equal protection, or ex post facto clauses of the

Constitution.

Recently, the Eleventh Circuit has held that Florida’s

control release statute, Section 947.146, Florida Statutes,

No. 88-6076-Civ-Scott, USDC-Southern District, judgment entered

September 29, 1988; Aman v. Martinez, Case No. 88-50124-RV.

USDC-Northern District, judgment entered May 8, 1989; Stafford

v. Dugger, Case No. 89-295-Civ-J-16, USDC-Middle District, judg-

ment entered July 10, 1990; Tommy Williams, Sr. v. Dugger, Case

No. 90-602-Civ-T-3A98(A), USDC-Middle District, judgment en-

tered June 7, 1991; Edgar Searcy v. Singletary, Case No. 91-1071-

Civ-T-23C, USDC-Middle District, report and recommendation en-

tered August 31, 1993.

It is especially important to note that Circuit Judge Tioflat,

who authored the opinion in Raske in July 1989, was also a mem-

ber of the panel who entered the decision in Petrone, just one

month later in August 1989. Thus, it is clear that the federal

appellate court considered the two decisions distinguishable.

does not affect punishment and therefore does not violate

the ex post facto clause. Hock v. Singletary, 8 Fla. L.

Weekly Fed. C943 (11th Cir., January 9, 1995). While

Hock dealt with the eligibility of an inmate for the con-

trol release program due to the nature of his offense, the

Eleventh Circuit clearly addressed the nature of early

release credits in finding that early release statutes are

“procedural in nature and are not directed toward the

traditional purposes of punishment.” /d. (citing Dugger v.

Rodrick, 584 So. 2d 2, 4 (Fla. 1991)).

For the reasons cited above, Respondent submits that

the repeal of the early release statutes and simultaneous

cancellation of all early release balances do not violate

the prohibition against ex post facto laws. The petition

must therefore be denied.

III. Response to Court’s Order to Show Cause of Febru-

ary 21

The Court entered an order on February 21, 1995,

giving Respondent eleven days to respond to the: order

to show cause stating why the relief requested in the

petition should not be granted and why sanctions should

not be imposed for failure to respond timely.

First, undersigned counsel does not recollect that a

time frame for response by the Respondent was deter-

mined at the hearing on January 4. Rather, undersigned

counsel recollects and her notes reflect that counsel for

the petitioner was given until the end of January to file

an amended petition if he so desired. No written order

reflecting any ruling of the Court was entered to counsel’s

knowledge after the hearing on January 4. Apparently,

undersigned counsel has incorrectly recollected the rulings

at hearing.

As explained at hearing on January 4, counsel did not

earlier file a written response because of the appointment

of counsel by the Court and the anticipation of an

amended petition by appointed counsel in substitution for

the pro se petition by inmate Lynce.* The Court acknowl-

edged at hearing that the legal arguments of the Florida

Department of Corrections were known since the depart-

ment had previously filed a substantive response in the

case of Barr v. Singletary, Case No. 93-667-Civ-Orl-22

and in the companion case at hearing on January 4,

Darryl v. Singletary. As pointed out by counsel for Re-

spondent, the arguments relative to the ex post facto

issues were the same for all cases; however, counsel for

Respondent also pointed out that Petitioner Lynce’s case

differed in that he was a former prisoner returned to

custody as a result of the department’s misinterpretation

of 1992 legislative amendments to Florida Statutes Sec-

tion 944.277. See 1992 Op. Att’y Gen. Fla. 092-96 (De-

cember 29, 1992). Instead of amending the petition,

appointed counsel filed a response simply claiming that

since no response had been filed by the Respondent, Peti-

tioner was entitled to an expedited ruling on the merits.

In the absence of a response, petitioner would be entitled

to a ruling on the merits; he is not entitled to a grant of

the petition by default. See, e.g., Bermudez v. Reid, 733

F.2d 18, 21 (2d Cir. 1984). If courts were to “enter

default judgments without reaching the merits of the

claim, it would be not the defaulting party but the public

at large that would be made to suffer... .” I/d.; see also,

Aziz v. Leferve, 830 F.2d 184, 187 (11th Cir. 1987)

(default judgment not contemplated in habeas corpus

cases); Stines v. Martin, 849 F.2d 1323 (10th Cir. 1988).

A request for dismissal based upon exhaustion ques-

tions along with a substantive response to the ex post

facto claim have been filed. Under the circumstances

outlined above, undersigned counsel does not believe that

* Prior to the appointment of counsel, undersigned counsel re-

quested an extension of time when paperwork related to this case

was forwarded to her in early November by the Office of Attorney

General.

sanctionable conduct has occurred. Accordingly, she re-

spectfully requests that the response be accepted and

the show cause order be discharged.

Respectfully submitted,

/s/ Susan A. Maher

SuSAN A. MAHER

Deputy General Counsel

Florida Bar No. 0438359

Department of Corrections

2601 Blairstone Road

Tallahassee, Florida 32399-2500

(904) 488-2326

[Certificate of Service Omitted in Printing]

EXHIBIT A

[DoC Logo}

FLORIDA Governor

DEPARTMENT OF LAWTON CHILES

CORRECTIONS Secretary

An Affirmative Action/ HarRRY K. SINGLETARY, JR.

Equal Opportunity Employer

2601 Blair Stone Road ® Tallahassee, FL 32399-2500

AFFIDAVIT

COUNTY OF LEON

Personally appeared before me this day Bobbie Glover,

who being duly sworn deposes and says that:

She is the Bureau Chief of Admission and Release of

the Department of Corrections and as such Bureau Chief

she is the official custodian of all inmate records pertain-

ing thereto:

Kenneth Lynce, DC #352641, a/k/a Kenneth Russell

Lynce was received by the Florida Department of Correc-

tions on April 23, 1986, having been sentenced in the

Circuit Court of Orange County, for the following:

Case Number: CR85-3760, imposed January 27, 1986

Term: Three and one-half (312) years less credit

for 44 days time served prior to sentenc-

ing, to run concurrent with case number

CR85-5152.

Offense: Delivery of Cocaine a Controlled Substance

Case Number: CR85-5152, two counts, imposed January 27,

1986

Term: Three and one-half (342) years less 29 days

credit for time served prior to sentencing

as to each count; each count to run con-

current to the other and concurrent with

case number CR85-3760.

Offense: Count One—Delivery of Cocaine a Controlled

Substance

Count Two—Possession of Cocaine a Con-

trolled Substance

Case Number: CR85-6173, three counts, imposed April 14,

1986

Term: Twenty-two (22) years less credit for 170

days time served prior to sentencing; each

count concurrent to the other and con-

current to case numbers CR85-5152 and

CR85-3760.

Offense: Count Two—Armed Burglary of Dwelling

Count Three—Attempted First Degree Mur-

der

Count Four—Possession of a Firearm in

Commission of a Felony

Through the accumulation of gain-time as provided for

in Florida Statute 944.275 as well as the application of

335 days of administrative gain-time (credited between

February 1987 and June 1988) and 1,860 days of pro-

visional credits (credited between July 1988 and January

1991), inmate Lynce was released from custody on Oc-

tober 1, 1992, as his release date was calculated as fol-

lows based on the sentence imposed in case number

CR85-6173:

DATE SENTENCE BEGAN 04-14-1986

Twenty-two (22) Years in Days: + 8030

Jail Credits: _ 170

MAXIMUM RELEASE DATE 10-21-2007

Basic Gain-time Awarded Pursuant to

Section 944.275, Florida Statutes: — 2640

Additiona! Gain-time Awarded: - 958

Adrninistrative Gain-time Awarded Pursuant

to Section 944.276, Florida Statutes: ~ 335

Gain-time Forfeited Due to Disciplinary

Action: + 295

TENTATIVE RELEASE DATE 11-04-1997

Provisional Credits Awarded Pursuant to

Section 944.277, Florida Statutes: -- 1860

PROVISIONAL RELEASE DATE 10-01-1992

Subsequent to this release, Attorney General Opinion

92-96, dated December 29, 1992, and clarified on De-

cember 31, 1992, was issued indicating the method of

release date calculation utilized by the Department was

in error due to legislative action amending section

944.277, effective July 6, 1992, which authorized the

retroactive cancellation of credits previously awarded to

inmates now excluded by subsection 944.277(1)(i). Pur-

suant to that opinion and its clarification, the department

recalculated inmate Lynce’s release date cancelling all

provisional credits (1,860 days) previously awarded and

issued an Affidavit for Retaking Prisoner on May 3, 1993.

This affidavit was presented to the sentencing court in

the Ninth Judicial Circuit in and for Orange County,

Florida which sentenced inmate Lynce in case number

CR85-6173, count three. The sentencing court issued an

Order for Execution of Sentence Imposed and Retaking

of Prisoner on May 17, 1993. Inmate Lynce was returned

to the Department’s custody on June 8, 1993, based on

the May 17, 1993 order.

On July 5, 1993, inmate Lynce was release to the cus-

tody of Orange County officials for an outside court

appearance.

Inmate Lynce was returned to the Department’s custody

on September 21, 1993, after sentencing in the Circuit

Court of Orange County on July 7, 1993, for the

following:

Case Number: CR92-12809

Term: Four and one-half (4'.) years less credit

for 39 days time served prior to sentenc-

ing to run concurrent with any active

sentence.

Offense: Count Two—Possession of Cocaine

As a result of new legislation effective June 17, 1993,

(Section 944.278), all administrative gain-time (335

days) previously awarded inmate Lynce under Section

944.276, Florida Statutes was also cancelled.

, i i dates

Inmate Lynce’s maximum and tentative release

are currently calculated based on the sentence imposed

in case number CR85-6173, as follows:

DATE SENTENCE BEGAN 04/14/1 oo

Twenty-two (22) Year Sentence in Days: + a

Jail Credits: _

MAXIMUM RELEASE DATE 10/21/2007

Basic Gain-time Awarded Pursuant to

Section 944.275, Florida Statutes: - 2640

Additional Gain-time Awarded: -- 1157

Administrative Gain-time Awarded Pursuant

to Section 944.276, Florida Statutes: ~ 335

Administrative Gain-time Cancelled Pursuant

to Section 944.278, Florida Statutes: + 335

Gain-time Forfeited Due to Disciplinary

Action: + 355

TENTATIVE RELEASE DATE 05/19/1998

Provisional Credits Awarded Pursuant to

Section 944.277, Florida Statutes: _ 1360

Provisional Credits Cancelled Pursuant to

Opinion 92-96, Attorney General: + 1360

RE-ESTABLISHED TENTATIVE

RELEASE DATE: 05/19/1998

The facts stated in the foregoing affidavit are based

on information contained in the official files of the De-

partment of Corrections.

/s/ Bobbie Glover

BosBIE GLOVER

Bureau Chief

Admission and Release Authority

Department of Corrections

[Jurat Omitted in Printing]

[Filed Mar. 14, 1995]

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

[Title Omitted in Printing]

REPORT AND RECOMMENDATION

TO THE UNITED STATES DISTRICT COURT

I. Status

Petitioner initiated this action for habeas corpus relief

pursuant to 28 U.S.C. § 2254 on August 18, 1994 (Doc.

No. 1). Upon consideration of the petition, the Court

ordered Respondents to show cause why the relief sought

in the petition should not be granted. Respondents filed

a reply to the petition in accordance with the Court’s

instructions and Rule 4 of the Rules Governing Section

2254 Cases in the United States District Courts (Doc.

No. 22, filed March 6, 1995). Petitioner alleged only

one claim for relief, that the State’s retroactive application

of its provisional release credits statute was an ex post

facto law in violation of Article I, Section 10 of the

United States Constitution.

Il. Factual Background

Petitioner was convicted of attempted first-degree mur-

der, armed burglary, and possession of a firearm in the

commission of a felony on April 14, 1986. He was sen-

tenced to a term of twenty two years imprisonment. Under

the State’s provisional release credit statute in force at

that time, he was eligible to accumulate credits to shorten

his period of incarceration. Fla. Sat. ch. 944.277

(1989). The provisional credits were only to be awarded

during periods when the prisoner population of the cor-

rectional system approached full capacity, and then only

to inmates not convicted of certain enumerated offenses

or serving a mandatory minimum sentence. Fla. Stat. ch.

944.277(1) (1989).

From the time of his sentencing to January 1991, Peti-

tioner accumulated 1860 days of provisional release

credits. During the 1992 session, the Florida Legislature

amended the provisional release credit statute to exclude

the award of credits to prisoners convicted of attempted

murder. Fla.Stat. ch. 944.277(1) (1992 Supp.). Peti-

tioner’s provisional release date, hastened by the 1860

days of credit previously awarded, was therefore set at

October 1, 1992. On that date, Petitioner was released

from custody.

On December 29, 1992, Robert Butterworth, Attorney

General of the State of Florida, issued an opinion inter-

preting the 1992 amendment of Fla.Stat. ch. 944.277.

92 Op. Att’y Gen. 96 (1992). He found that the pro-

visional release credit statute was adopted as a permissive

administrative means for relieving prison overcrowding.

He also found that a footnote which had restricted previ-

ous amendments to Fla.Stat. ch. 944.277 to prospective

effect was not included in the 1992 amendment. He

therefore concluded that the 1992 amendment was in-

tended to have retroactive effect, which he believed pre-

cluded the award of any provisional release credits to a

prisoner convicted of murder.

Harry Singletary, Jr., Secretary of the Florida Depart-

ment of Corrections, solicited a further opinion from the

Attorney General on the interpretation of the amended

provisional release statute. On December 31, 1992, the

Attorney General clarified his previous opinion and sug-

gested that provisional release credits awarded before the

1992 amendment of Fla.Stat. ch. 944.277 to inmates

convicted of murder should be withdrawn. He also found

that, while no court decision compelled the Department

of Corrections to recommit previously released prisoners,

the department could do so at its own discretion.

Petitioner’s provisional release credits were cancelled

on January 4, 1993. The Department of Corrections

submitted an Affidavit for Retaking Prisoner to the Ninth

Judicial Circuit Court on May 3, 1993. On May 17,

1993, the Court issued an Order for Execution of Sen-

tence Imposed and Retaking of Prisoner. Petitioner was

returned to incarceration on June 8, 1993. His prior

release date of October 1, 1992 was cancelled and his

tentative release date was delayed until May 19, 1998.

Ill. Findings of Fact and Conclusions of Law

Petitioner contends that the cancellation of his accumu-

lated provisional release credits pursuant to the 1992

amendment of Fla.Stat. ch. 944.277, which caused a

significant delay in his tentative release date, is an ex

post facto law in violation of Article I, Section 10 of the

United States Constitution. Respondents contend that

provisional release credits were an administrative tool to

reduce prison overcrowding, not a mitigation of punish-

ment. They also contend that the statute was merely

procedural and therefore did not affect the magnitude of

punishment imposed for conviction of an offense.

Article I, Section 10 of the United States Constitution

states, “No State shall . . . pass any . . . ex post facto

Law.” U.S. Const. art. I, § 10, cl. 1. The Framers in-

tended the ex post facto clause to be a safeguard for the

public which would force criminal legislation to provide

fair warning of its effects and permit reliance until ex-

plicitly changed. Weaver v. Graham, 450 U.S. 24, 28

(1981). The prohibition extends to any law “which im-

poses a punishment for an act which was not punish-

able at the time it was committed; or imposes addi-

tional punishment to that then prescribed.” Weaver v.

Graham, 450 U.S. at 28 (quoting Cummings v. Missouri,

71 U.S. (4 Wall.) 277, 325-26 (1867)). Two elements

are required for a criminal or penal law to be considered

ex post facto: it must apply to events occurring before

its enactment and it must disadvantage the offender it

affects. Id. at 29; Lindsay v. Washington, 301 U.S. 397,

401 (1937). However, legislation which satisfied both

requirements would not violate the ex post facto prohibi-

tion if the change it effected were merely procedural and

did “not increase the punishment nor change the in-

gredients of the offense or the ultimate facts mecessary

to establish guilt.” Hopt v. Utah, 110 U.S. 574, 590

(1884); Dobbert v. Florida, 432 U.S. 282, 293 (1977).

In Weaver v. Graham, 450 U.S. 24, 67 L.Ed.2d 17

(1981), the Supreme Court held unconstitutional the

application of the amended Florida good time gain-time

statute to inmates convicted before the effective date of

the statute. The amendment decreased the number of

days of gain-time that an inmate could earn per month

for good behavior. See Fla.Stat. ch. 944.27(1) (1975),

Fla.Stat. ch. 944.275(1) (1979). Although previously

awarded gain-time was not cancelled or reduced, the new

gain-time statute was applied to all inmates in the prison

system, including those convicted before the enactment

of the amendment. The State of Florida advanced three

arguments suggesting that the law was not ex post facto:

first, it did not impair vested rights; second, on its face,

it applied only prospectively; and third, it did not worsen

the conditions of incarceration.

The Court rejected the first argument out of hand;

vested rights have never been a requirement for protec-

tion under the ex post facto clause, only under the con-

tracts clause and the due process clause. Weaver, 450

U.S. at 29. As to the second argument, even though the

amendment was prospective in form, it was retrospective

in effect. “The critical question is whether the law

changes the legal consequences of acts completed before

its effective date.” Jd. at 31. Prisoners incarcerated for

previous conduct would have greater consequences at-

tached to those prior acts, and the law was therefore

retrospective. The application to earlier offenders was

repugnant to the original meaning of the ex post facto

clause because an inmate who considered gain-time before

entering a guilty plea would have calculated and relied

upon a shorter sentence under the then existing statute.

Id. at 32. Finally, the Court addressed whether the

amendment placed the prisoner in a worse position than

the prior law. Because a prisoner had less opportunity

to shorten his sentence, he would have been materially

harmed by the change. /d. at 33. The Court did not

consider Florida’s argument that the alteration was merely

procedural, for it substantively changed the gain-time

available, not merely the method by which it was

assigned.

The Eleventh Circuit turned to the issue of gain-time

after Florida again altered the formula for its award.

In Raske v. Martinez, 876 F.2d 1496 (11th Cir. 1989),

cert. denied, 493 U.S. 993 (1989), the Court held un-

constitutional a decrease of the opportunity to earn in-

centive gain-time. The amended statute provided for

increased good behavior gain-time but decreased the

amount of incentive gain-time that could be earned by

diligent labor. See Fla.Stat. 944.275 (1982), Fla.Stat.

ch. 944.275 (1983). The net effect for an inmate who

labored diligently was a decrease in available gain-time.

The State of Florida made three closely related argu-

ments as to why the statute was not ex post facto: first,

the granting of incentive gain-time was discretionary,

while the granting of good behavior gain-time was auto-

matic; second, the granting of incentive gain-time was

discretionary because the duties which allowed an inmate

to earn it were a matter of legislative grace; and third,

the increase in good behavior gain-time offset the decrease

in incentive gain-time.

The Court found that although an inmate had no right

to gain-time, either good behavior or incentive, the ex

post facto clause has never required a vested right to be

impaired to violate the clause. Raske, 876 F.2d at 1499

n.5. In fact, the Court found that both incentive gain-

time and good behavior gain-time, which was held sub-

ject to the prohibition in Weaver, were discretionary. /d.

Not only did the State have discretion in determining

whether good behavior or incentive gain-time would be

awarded, it used similar criteria in making the decision.

There was therefore no distinction between the two in-

sofar as the ex post facto clause was concerned, so the

reasoning of Weaver applied to incentive gain-time. /d.

While the work an inmate performed to earn incentive

gain-time may have been a matter of legislative grace, if

the State afforded the inmate the opportunity to work,

it was bound to reward the prisoner for his services with

at least as much gain-time as he would have earned at

the time of his offense. /d. at 1500. Finally, although

an inmate might not earn the maximum award of in-

centive gain-time (and was eligible to earn more good

behavior gain-time under the new statute), the denial of

the opportunity to do so made the punishment for the

prisoner’s offense more onerous than when the offense

was committed.

In Hock y. Singletary, 41 F.3d 1470 (11th Cir. 1995),

the Eleventh Circuit addressed the 1989 amendment of

Florida’s control release statute, Fla.Stat. ch. 947.146

(1989). The goal of the control release program, like

that of provisional release credits, was to ease the over-

crowding of the state correctional system. The 1989

amendment of the control release statute transferred re-

sponsibility for control of the prison population from the

Florida Department of Corrections to the Florida Parole

Commission and altered prisoner eligibility. Prior to the

amendment, prisoners convicted of murder were eligible

for control release; after the amendment, they were not.

The Court, reasoning in summary fashion, found that

“any disadvantage suffered by the petitioner does not

affect punishment and therefore does not violate the Ex

Post Facto Clause.” Hock, 41 F.3d at 1472. In con-

trast with the alterations in the good behavior gain-time

statutes which had been held unconstitutional in Weaver

and Raske, it found that the control release statute was

procedural, not substantive. Jd. The Court agreed with

the Florida Supreme Court’s interpretation of the ex post

facto clause, in which it had earlier held that Fila.Stat.

ch. 944.277 “was procedural in nature, [and] not directed

toward the traditional purposes of punishment.” Dugger

v. Roderick, 584 So.2d 2 (Fla. 1991), cert. denied sub

nom. Roderick v. Singletary, ———U:S. , 116 L.Ed.2d

790 (1992). It therefore held that retroactive application

of the amendment did not run afoul of the ex post facto

clause.

The Eleventh Circuit then stated that the amendment

to the control release statute, unlike changes in good

behavior and incentive gain-time statutes, did not deny

inmates the ability to reduce their terms of confinement.

Hock, 41 F.3d at 1472. The control release statute per-

mitted release based upon prison system overcrowding,

not diligent inmate labor and good behavior. The former

was independent of an prisoner’s labors, the latter the

fruit of it. The Court also held that good behavior gain

time could be predicted and accounted for in entering

into a plea bargain and sentencing but control release

could not. /d. at 1473.

Although the Eleventh Circuit’s opinion is sparsely

reasoned, it resolves the issues at question. Provisional

release credits were merely an earlier alternative to con-

trol release as a means to relieve prison overcrowding.

In fact, Roderick, the Florida case upon which the Elev-

enth Circuit relies heavily, dealt with provisional release

credits, not control release. Therefore, in all likelihood,

were the Eleventh Circuit to have faced the issue of

provisional release credits under Fla.Stat. ch. 944.277

instead of the control release statute, it would have held

the 1992 amendment not to violate the ex post facto

clause. Accordingly, the undersigned respectfully recom-

mends that the Petition for Writ of Habeas Corpus filed

herein be DENIED and that the case be DISMISSED

with prejudice.

Failure to file written objections to the proposed find-

ings and recommendations contained in this report within

ten (10) days from the date of its filing shall bar an

aggrieved party from attacking the factual findings on

appeal.

Respectfully recommended in Orlando, Florida on

March 14, 1995.

/s/ David A. Baker

Davip A. BAKER

United States Magistrate Judge

[Filed Apr. 24, 1995]

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

[Title Omitted in Printing]

PETITIONER’S OBJECTION TO

REPORT AND RECOMMENDATION

The Petitioner, KENNETH LYNCE, hereby objects

to the Report and Recommendation of the United States

Magistrate Judge filed on March 14, 1995.

Status

Petitioner filed this habeas corpus action, pursuant to

28 U.S.C. § 2254, on August 18, 1994. Respondents

filed their reply on March 6, 1995. The sole claim for

relief is based on the State’s retroactive application of its

provisional release credits statute. § 944.277, Fla.Stat.

(1991). On March 14, 1995, the United States Magis-

trate Judge filed a Report and Recommendation which

recommended the Petition be denied and the case be

dismissed with prejudice.

Objections

The Report and Recommendation primarily relies on

Hock v. Singletary, 41 F.3d 1470 (11th Cir. 1995). In

that case, the Eleventh Circuit held the control release

statute, § 947.146 Fla.Stat. (1993), was “procedural”

and therefore did not affect the amount of punishment

imposed, thus no Ex Post Facto Clause violation existed.

This reasoning was taken from the Florida Supreme

Court’s opinion in Dugger v. Rodrick, 584 So.2d 4 (Fla.

1991) and adopted by Hock. The Petitioner submits

Hock was wrongly decided and objects to the Report and

Recommendation since it rests upon that foundation.

The Report and Recommendation relied on Hock,

which erroneously concluded any disadvantage suffered

by the Petitioner in that case, did not affect punishment.

Petitioner contends that his sentence was significantly

increased by the loss of accumulated provisional release

credits. Specifically, he was released on October 1992

by getting credit for 1860 days of provisional release

credits. After his release, a reinterpretation of Fla.Stat.

§ 944.277, provided for retroactive application and can-

cellation of his previously earned release credits. Thus,

on June 8, 1993, he was rearrested and returned to prison

with a new tentative release date of May 19, 1998. His

sentence of imprisonment was lengthened by an additional

five years. Certainly, this increase in sentence appears to

be an increase in punishment, not a mere “procedural”

change but one of great substance causing tremendous

suffering to Petitioner.

Contrary to the conclusory opinion of Hock, an inmate

does have a reasonable expectation he will become eligible

for provisional release credits due to a change in the

population level at prison. /d. at 1472. Typically, at plea

bargaining, clients are advised that due to overcrowding

they will be released much earlier and rely on this advice

in entering their pleas and at sentencing.

For ex post facto purposes, early release in Florida

affects substantive matters of punishment and is just as

much a part of the penalty structure as the basic gaintime

at issue in Weaver v. Graham, 450 U.S. 24 (1981) and

Raske v. Martinez, 876 F.2d 1496 (11th Cir. 1989);

as well as the sentencing guidelines at issue in Miller v.

Florida, 482 U.S. 423 (1987). These sentencing proce-

dures were designed to address overcrowding and to

maximize the duration of incarceration consistent with

limited correctional resources.

In addition, the Hock case is distinguishable from the

Petitioner’s case. First, Hock deals with control release,

a discretionary program, which provides for parole-like

release. The statute provides that “no inmate has a right

to contrul release” and sets forth numerous eligibility

factors that are irrelevant to provisional release credits.

§ 947.146(2); (6), Fla. Stat. (1993). In contrast, the

Petitioner had an unqualified right to be released on his

provisional release date. § 944.277(5), Fla.Stat. (1991).

Control release was not in effect at the time Petitioner

committed his offense and he makes no claim regarding

it. Also Hock addresses eligibility to receive control re-

lease credits, not cancellation of previously granted pro-

visional release credits, fully quantified and predictable.

Id. at 1472-73. Finally, eligibility for and cancellation of

provisional release credits directly affects the severity of

punishment herein.

Clearly, the revocation of previously earned provisional

release credits was an ex post facto violation of the U.S.

and Florida Constitution. Based on the holding in Weaver

and Raske, the Petitioner is entitled to relief.

Accordingly, the Petitioner objects to the Report and

Recommendation in the instant case.

DATED this 24th day of April, 1995.

/s/ Joel T. Remland

JorL T. REMLAND

Assistant Federal Public Defender

FL Bar ID No. 169291

80 N. Hughey Avenue, Suite 417

Orlando, Florida 32801-2229

Telephone: (407) 648-6338

Fax: (407) 648-6095

[Certificate of Service Omitted in Printing]

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

Docket Number 94-891-Civ-Orl-18

KENNETH LYNCE

Vv.

HAMILTON MATHIS, et al

Judge G. Kendall Sharp

JUDGMENT IN A CIVIL CASE

Decision by Court. This action came before the Court

with the judge named above presiding and a decision

has been rendered.

IT IS ORDERED AND ADJUDGED

That the Petitioner, Kenneth Lynce take nothing

and the action be dismissed.

Clerk

Davip L. EDWARDS

(By) Deputy Clerk

/s/ John McClung

Date May 10, 1995

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

[Title Omitted in Printing]

ORDER

Petitioner’s Request for A Certificate of Probable Cause

(Doc. No. 28, filed June 8, 1995) is DENIED. Peti-

tioner has not made a colorable showing of the depriva-

tion of any federal constitutional right.

DONE AND ORDERED in Chambers at Orlando,

Florida, this 16 day of June, 1995.

/s/ G. Kendall Sharp

G. KENDALL SHARP

United States District Judge

[Filed Oct. 16, 1995]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 95-2773

KENNETH LYNCE,

Petitioner-A ppellant,

versus

HAMILTON MATHIS, Superintendent; ROBERT A. BUTTER-

worRTH, Attorney General of the State of Florida;

Harry K. SINGLETARY, JR., as Secretary of the Florida

Department of Corrections,

Respondents-A ppellees.

Appeal from the United States District Court

for the Middle District of Florida

ORDER: -

Appellant’s application for a certificate of probable

cause is DENIED.

/s/ J. L. Edmondson

United States Circuit Judge

SUPREME COURT OF THE UNITED STATES

No. 95-7452

KENNETH LYNCE,

Petitioner

Vv.

HAMILTON MATHIS, Superintendent, Tomoka

Correctional Institution, et al.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

ON CONSIDERATION of the motion for leave to

proceed herein in forma pauperis and of the petition for

writ of certiorari, it is ordered by this Court that the

motion to proceed in forma pauperis be, and the same is

hereby, granted; and that the petition for writ of certiorari

be, and the same is hereby, granted limited to Question |

presented by the petition.

May 13, 1996

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.